CBA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2023-03-10|Before: Goodman J

The appeal be dismissed.
The appellant pay the respondents' costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 The appellant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 3 October 2012. 2 On 28 April 2016, the appellant applied for a protection visa. On 6 October 2016, a delegate of the Minister for Immigration and Border Protection refused that application. On 19 October 2016, the appellant sought review of the Minister's decision by the Immigration Assessment Authority. On 13 April 2017, the Authority decided to affirm the Minister's decision and provided its reasons for doing so (Reasons). 3 On 11 May 2017, the appellant filed an application for judicial review of the Authority's decision with the (then) Federal Circuit Court of Australia. On 6 March 2020, that application was heard by the primary judge. At that hearing, the appellant sought leave to amend his application. 4 On 13 March 2020, the primary judge found that the proposed amended application lacked sufficient merit to warrant a grant of leave. His Honour then made orders dismissing: (1) the amendment application; and (2) the application for judicial review. His Honour's reasons for doing so are set out in CBA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 511 ([J]). 5 On 9 April 2020, the appellant filed a notice of appeal in this Court, appealing from the whole of the judgment of the primary judge and seeking the setting aside of all of the orders made by the primary judge. 6 On 7 May 2020, the appellant filed an amended notice of appeal, expanding the bases on which he appeals from the judgment below.

THE NATURE OF THE PROCEEDING IN THIS COURT 7 The respondent submitted that the primary judge's decision was interlocutory; that an appeal could not be brought without leave; that any application for leave (or any application to extend time to do so) was required to have been filed within 14 days of 13 March 2020; and that the appellant had failed to make such an application. The respondent suggested that the amended notice of appeal should be treated as an application for leave to appeal and as an application to extend time to do so. In support of this submission, the Minister relied upon BXU16 v Minister for Immigration and Border Protection [2018] FCA 1897 at [2] (Lee J); AXX16 v Minister for Home Affairs [2019] FCA 190 at [24] (Derrington J) and BET20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 6 (Yates J). In contrast, the analysis of Gleeson J in CWX18 v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 673 suggests that the primary judge's decision may be a final decision. 8 It is unnecessary to determine this question in the present case as, for the reasons discussed below, the appellant's claim must fail either way. 9 The analysis that follows assumes, favourably to the appellant, that the primary judge's decision was a final decision. At [24] below, the alternative position - that the primary judge's decision was interlocutory - is considered.

The Reasons of the Authority 10 The Authority considered the appellant's claims by reference to s 36 of the Migration Act 1958 (Cth), with a particular focus upon whether any of the criteria in s 36(2) of the Act were satisfied. This required consideration as to whether the appellant was a person to whom Australia has protection obligations because he is a "refugee". The Authority had regard to the definition of "refugee" in s 5H of the Act, which depends upon the existence of a "well-founded fear of persecution", as that expression is defined in s 5J of the Act. The Authority considered the appellant's claims in considerable detail and concluded that the criteria in s 36(2) of the Act were not satisfied. 11 At J[4] to [14], the primary judge summarised the Authority's Reasons as follows: 4. The Authority accepted the applicant is a Tamil male from the Eastern Province. The Authority rejected the applicant's written and documentary evidence relating to the circumstances in which and the reasons for which the applicant went to India in 2006; it preferred the later oral evidence the applicant gave before the delegate that he went to India with his then girlfriend (now wife) for personal reasons, and that they returned to Sri Lanka five months later for personal and economic reasons [24]. The Authority, therefore, did not accept the applicant had been subjected to any questioning, interrogations, beatings, harassment, or any other harm at his home or place of employment because of the cousin's LTTE involvement before the applicant's departure to India; and the Authority did not accept such things occurred after he returned from India [24]. 5. The Authority, however, was prepared to accept the applicant had a cousin who was involved with the LTTE who has been missing since 2006, and who the Authority presumed was dead [26]. The Authority accepted the applicant had a close relationship with the cousin; and it found it plausible that the cousin may have borrowed the applicant's vehicle during 2002 to 2006 [27]. The Authority was prepared to accept that, as a Tamil growing up in a former conflict area, the applicant may have faced questioning, monitoring, and harassment during his life in the Eastern Province; and it accepted the applicant is likely to have encountered such treatment in the years before and after the war, and that he may have been questioned about the cousin's past involvement with the LTTE, although the Authority was not satisfied he was seriously considered as having links to the LTTE, whether directly or through the cousin in or around 2006, as the applicant claimed [25]. 6. The Authority also accepted the applicant's claim that soon after he returned to Sri Lanka from India in 2006 the SLA abducted the applicant's wife's cousin [28]. The Authority accepted it was likely the applicant was monitored and harassed during the period after he returned from India, and that the applicant may have been questioned about the cousin's past involvement with the LTTE [29]. The Authority had significant doubts the applicant was ever seriously considered as having links to the LTTE, whether directly, or through the cousin. Here the Authority referred to the contrast afforded by the applicant's wife's cousin, who had been abducted. The Authority noted the applicant was not detained or abducted by the SLA or the authorities before 2012 [29]. 7. The Authority was prepared to accept that the applicant's wife may have been visited by the authorities on several occasions after the applicant departed Sri Lanka; but it was not satisfied this was due to any ongoing interest or investigation by the authorities. The inquiries were consistent with country information about the regular monitoring of Tamils in the years after the end of the civil war, particularly in the east and north of the country [30]. 8. The Authority then addressed what it described as the applicant's "profile". The Authority began by describing in detail the applicant's claims about his arrest and detention in April 2012, these being that: in April 2012 the SLA detained the applicant for three hours and, in that period, he was put in a van, questioned, threatened, and harmed; during "this period" many Tamils were being arrested for questioning about LTTE members "and the location of weapons", the applicant believed the authorities may have received more information about the cousin and his involvement with the LTTE, and that is why the SLA came to the applicant's home, took him away, and detained him for three hours; during the time he was detained the applicant was beaten, and threatened that he would be shot if he did not confess where the weapons were; when the applicant was released, he was warned the SLA would come again and that he better be ready to confess to them where the weapons were; and the applicant remained in his town, but, because he feared he would again be detained and beaten or killed, in October 2012 he finally left his home. 9. Having described these claims, the Authority said [32]: I am prepared to accept the April 2012 detention occurred, and that he was threatened and mistreated during this time, prior to being released 3 hours later. I also find it plausible that information about his cousin, their family relationship and the past . . . use of his vehicle may have been a catalyst for this detention. 10. The Authority referred to "the UNHCR Guidelines", and acknowledged that those guidelines "suggest that a close family relationship to a person who was an LTTE combatant or cadre may itself be a risk profile" [33]. The Authority, however, was satisfied there are a range of factors that indicate the applicant either does not have such a risk profile, or, if he did at some point in 2012, he would not now face a real chance or risk of harm on that basis. The Authority relied on three matters. 11. First, the Authority found it significant that between 2006 and 2012 the applicant was not abducted or detained for interrogation by the SLA or the authorities in connection with the cousin's claimed LTTE involvement [34]; that, when he was detained in April 2012 he was released after three hours [34]; that, while he was subject to severe mistreatment, and warned he may be questioned again, during the five or six months the applicant remained in his home area he had not been detained, harmed, or questioned "about his cousin's claimed involvement" [34]. After acknowledging the applicant believed the authorities did not pursue him further because they were continuing to build a case against him, the country information to which the Authority had referred earlier in its reasons indicated that the SLA and Sri Lankan authorities "were not nuanced in such investigations and acted with impunity towards those suspected of LTTE involvement or connection". The Authority then made the following findings [35]: Instead, the evidence before me strongly suggests that while the authorities may have had intelligence or other information that they relied on to question the applicant, they did not seriously consider that he was involved with the LTTE, that he had knowledge of his cousin's involvement, or that he held a political opinion in favour of the LTTE. Were it otherwise, I am satisfied that the Army or other authorities would have either continued his detention, or sought to detain him on more than one occasion, and/or subject him to further and more severe ill treatment to obtain further information. 12. The second matter on which the Authority relied as indicating the applicant either does not have a risk profile of the sort identified by the 2012 UNHCR Guidelines, or, if he did at some point in 2012, he would not now face a real chance or risk of harm on that basis, is that the applicant was able to travel freely to Negombo in 2012 and, on the evidence he gave before the delegate, he was able to clear ten army or police checkpoints, and that the authorities checked his identification documents and asked him questions [35]. The third matter is that, although the 2012 UNHCR Guidelines indicate that a person with family links to an LTTE combatant or cadre may be at risk of harm, the Authority found there "have been significant shifts in the country information since then", and that "recent reports no longer indicate that a person with the applicant's profile or family connection to an LTTE member would put him at risk of harm" [37]. The Authority referred to those "recent reports". 13. On the basis of these findings, the Authority concluded as follows [40]: I accept that [the applicant] does potentially fall into the UNHCR risk profile of persons who were family members of former LTTE members or combatants, however having regard to the limited (albeit serious) interest shown towards the applicant in the past, and more recent country information about the reduced risks to persons with such profiles, I find there is not a real chance of the applicant being seriously harmed for these reasons if he were to return to Sri Lanka in the reasonable [sic] foreseeable future. 14. The Authority considered other claims the applicant had made, but, for reasons it is unnecessary to set out, it was satisfied that none of those claims exposed the applicant to a real chance of persecution in the reasonably foreseeable future. Also for reasons it is not necessary to set out, the Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka, there is a real risk the applicant will suffer significant harm. (emphasis added; references in [square brackets] are to paragraphs of the Reasons referred to by the primary judge in footnotes)

The primary judge's reasoning 12 After summarising the reasoning of the Authority, the primary judge noted that the appellant, who was legally represented, sought leave to amend his application. The effect of the proposed amendment was to amend the first ground in the application and to abandon the second (and only other) ground. 13 His Honour referred at J[19] to [21] to the absence of an adequate explanation from the appellant for the delay in putting forward the first ground in its proposed amended form and to the question of prejudice to the Minister if the amendment were allowed; and found that these matters were not significant in the exercise of the Court's discretion. 14 The primary judge then noted, at J[22], that the question whether the amendment should be allowed turned on the prospects of success of the sole proposed ground. That proposed ground was in the following form (J[15] to [16]): The IAA committed jurisdictional error by failing to consider an integer of the applicant's claim. PARTICULARS (a) The applicant claimed that his cousin was a member of the LTTE and that he feared serious harm due to the familial connection. (b) The IAA accepted that the applicant potentially falls into the UNHCR risk profile published in the UNHCR Eligibility Guidelines 2012 of persons who were family members of former LTTE members or combatants. (c) The guidelines note people with the following profiles of persons with family links . . . . . . . or otherwise closely related to persons with profiles of former LTTE members or combatants. It is submitted that these profiles are disjunctive and should be considered separately. (d) The UNHCR Guidelines also state: "More specifically, the possible risks facing individuals with the profiles below require careful examination. The UNHCR considers that individuals with these profiles - though this list is not exhaustive - may be and in some cases [is] likely to be in need of international refugee protection" (e) The IAA accepted that the applicant had a close relationship with his cousin but did not consider the claim that the applicant's cousin was a close relative. (f) The IAA did not deal with the integer of the claim that is described as follows: (i) The applicant had a close relationship to his cousin; (ii) The two lived next door to each other; (iii) The cousin was in the LTTE; (iv) As part of his role with the LTTE the cousin stored and secreted weapons; (v) The cousin disappeared, and (vi) The applicant was kidnapped beaten and threatened. He was questioned as to the whereabouts of the cousin's weapons, (vii) The risk so identified does not result from the applicant's LTTE links per se but as a result of the applicant's perceived knowledge of the cousin's weapons storage. (viii) The IAA did not engage with the applicant's claims to be at risk because he is perceived has knowledge of (sic) the location of the cousin's weapons. 15 His Honour considered the proposed ground and concluded that it had insufficient prospects of success (at J[29]). At J[23] to [28], his Honour set out his reasoning to that conclusion: 23. In his written submissions the applicant submits the Authority did not make a finding in relation to the claim that the cousin, who was also the applicant's neighbour, "was a person who stored weapons for the LTTE". In particular, the applicant submits, the Authority made no findings "as to the applicant's knowledge, actual or perceived, of the cousin's role"; and, most important of all, the Authority did not consider the "applicant's claim that on return to Sri Lanka at the time of the IAA decision he would be at risk because of the perception or reality that he knew the location of the cousin's weapons". 24. It is apparent from these submissions that the applicant submits there was before the Authority claims that the cousin had stored weapons, that the applicant knew the cousin stored weapons, and that the applicant was perceived to have knowledge of the location of weapons stored by the cousin. At the hearing before me, however, I understood Mr Hodges to submit that the claim the proposed amendment seeks to allege was before the Authority, and which the Authority did not consider, is a claim that the applicant faced a risk of harm because he would be perceived to have knowledge of the location of weapons the cousin stored. 25. In any event, there would be no arguable case that the applicant had claimed the cousin stored weapons, or that the applicant knew the cousin stored weapons. In the Statement the applicant stated he was questioned about the cousin's whereabouts, and about where weapons were being stored, and the applicant said the SLA "did not believe me when I said I did not know". The applicant further stated that he believed the SLA "discovered that my cousin was more involved than they originally thought", and that "his role actually involved storing weapons in different areas prior to attacks". The applicant did not say he knew the cousin stored weapons. The clear effect of this part of the applicant's claims, therefore, is that the SLA asked the applicant questions about weapons because of information the SLA had gathered about the cousin, and the applicant denied to the SLA he knew anything about that. The claim, therefore, that was before the Authority is that the applicant was or would be perceived to have knowledge of the location of weapons the cousin had stored. 26. As submitted by the Minister, it is beyond argument the Authority was aware that a claim to that effect was before it. When describing the applicant's claims the Authority referred to the applicant having claimed he was asked about the cousin's whereabouts, and was "also asked . . . where his cousin's weapons were being stored"[11, fifth dot point]; that the applicant believes the SLA discovered the cousin was more involved with the LTTE than they had originally thought, "such as in storing weapons in different areas prior to attacks" [11, thirteenth dot point]; and, when he was kidnapped and ill-treated in April 2012, the applicant was told "he would be shot if he did not confess that he knows where the weapons were stored" [11, fifteenth dot point]. 27. Consistently with the Minister's submissions, it is also beyond argument that the Authority considered that particular claim: a) The Authority accepted the applicant's claim that he was kidnapped in April 2012, and that he was threatened and mistreated before being released three hours later [32]. The Authority also accepted the applicant was questioned about the cousin's "whereabouts or the whereabouts of any arms cache he may have left behind" [34]. b) The Authority found plausible that "a catalyst for this detention" was "information about his cousin, their family relationship and the past of [sic] use of [the applicant's] vehicle" [32]. The Authority's use of "information about his cousin", particularly when read next to "their family relationship", was intended to refer to the information the applicant claimed he believed the SLA had obtained about the cousin, including the cousin's storing weapons. Thus, the Authority found plausible that one of the catalysts for the applicant's detention in April 2012 was information the SLA obtained about the cousin, including the cousin's storing weapons. c) Finally, the Authority found that, while the authorities may have had intelligence or other information on which they relied to question the applicant, "they did not seriously consider that he was involved with the LTTE, that he had knowledge of his cousin's involvement, or that he held a political opinion in favour of the LTTE" [35]. It is true the Authority did in not terms state that the authorities did not seriously consider the applicant did not have knowledge about the cousin's holding weapons; but the Authority did not have to. The Authority found the authorities did not seriously consider the applicant had "had knowledge of his cousin's involvement" which necessarily covers knowledge of the nature of the cousin's involvement with the LTTE, including storing weapons. 28. In short, the Authority accepted the authorities kidnapped and detained the applicant; during his detention the applicant was interrogated about, among other things, the cousin's having stored weapons; and the applicant was so detained for reasons that included the authorities' having obtained information that the cousin may have stored weapons. But the Authority found that, on the applicant's release, the authorities did not seriously consider, among other things, that the applicant had knowledge of the cousin's involvement with the LTTE, including the cousin's having stored any weapons. (references in [square brackets] are to paragraphs of the Reasons referred to by the primary judge in footnotes) 16 As the primary judge exercised his discretion so as not to allow the amendment application, the appellant apparently did not seek to advance a case based upon the unamended ground 1, and ground 2 had been abandoned, his Honour then made orders dismissing both the amendment application and the application for judicial review.

Grounds of appeal 17 The grounds of appeal to this Court are as follows (without alteration): 1. The trial Judge, Manousaridis J erred in law dismissing the amended application and deciding that there was no merit in the ground. The explanation is provided in Ground 2. 2. Grounds 2 and 3 Particulars: a. His Honour had pointed out the Authority had given the reasons paras 4- 9 of the judgement that the authority had not questioned the credibility of the Appellant which had accepted some of the critical statements but questioned the answers of the some less important questions. Neither did the Authority nor His Honour cumulatively considered the answers to the series of questions in making the decision. b. The Appellant had submitted through his legal representative, the whole list of the claims itemised at para 8 of the submissions but His honour failed to address each of the claims, those which were not included in the paras 4-8 of His Honour's judgement. They include: i. Appellant's cousin a prominent member of the LTTE (Para 8.1) accepted by the Authority (para9.2) ii. The appellant was questioned and beaten on a weekly basis (para 8.3) iii. The appellant's wife's cousin was abducted by SLA. (para 8.5) accepted by the Authority (para 9.3) iv. The Appellant's cousin was more deeply involved with the LTTE than what the SLA originally thought. (pars 8.7) as in b(i) above. c. His Honour erred in law by not questioning the submissions of the Respondent in para 9.6 which had referred to more recent reforms, that did not exist at the time the Appellant made his application and therefore could not be considered just as much as any later information that supported the appellant after the date of his application must not per law be considered. His Honour has taken this into consideration in making the decision. This defeats the persuasive authority of the UNHCR guidelines which was acknowledged by the immigration assessment authority. (para 10 of the judgement). d. His Honour erred in law by failing to consider that the Authority had made jurisdictional error in not considering cumulatively each of the grounds in the amended application in making the decision. e. The appellant states that arrest and detention is not directed to every individual on the wanted list and is more depended on the specific checkpoint authority being able to identify the person of interest at the time of incident and that not being detained at every checkpoint did not amount to lack of interest on the appellant as opined by the Authority. (para 27 of judgement). This stresses the importance of cumulative consideration.

Consideration 18 As is apparent from the above analysis of the primary judgment, the primary judge was exercising a discretion on a matter of practice and procedure. As the decision involved an exercise of discretion, the appellant must demonstrate an error of the kind identified in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504 to 505, that is, that the primary judge acted on some wrong principle; or that he allowed extraneous or irrelevant matters to guide or affect him; or that he mistook the facts; or that he did not take into account some material consideration; or even that if no particular error can be identified, the decision is so plainly unreasonable or unjust that it must have been affected by some error. The appellant has not identified any such error and I am not satisfied that any such error is apparent. 19 As noted above, the only ground of review before the primary judge was a suggested failure to consider an integer of the appellant's claim. As particularised, that integer was, in summary, that the appellant would, if he were to return to Sri Lanka, be at risk from Sri Lankan authorities because those authorities perceived that the appellant had knowledge of the whereabouts of weapons held by his cousin, who was in the Liberation Tigers of Tamil Eelam (LTTE), and to whom the appellant was close. As the primary judge explained, it is clear that the Authority considered this claim. So much is apparent from: (1) the Authority noting that the appellant claimed that he had been regularly beaten and questioned by the authorities about the location of his cousin's weapons (Reasons at [11] (second to sixth and fourteenth dot points), [20] and [34]); (2) the Authority's acceptance that the appellant was detained for a period of three hours in April 2012, during which time he was beaten, threatened and questioned about his cousin's involvement with the LTTE and asked about the whereabouts of his cousin and his cousin's weapons (Reasons at [32] and [34]); and (3) the Authority's findings that despite this interrogation, the authorities did not seriously consider that the appellant had knowledge of his cousin's involvement (Reasons at [35]) and the appellant would have no profile with the Sri Lankan Army or Sri Lankan authorities that would place him at risk (Reasons at [39], [40], [53] and [64] to [66]). 20 The primary judge (accurately) summarised the position at J[28]: In short, the Authority accepted the authorities kidnapped and detained the applicant; during his detention the applicant was interrogated about, among other things, the cousin's having stored weapons; and the applicant was so detained for reasons that included the authorities' having obtained information that the cousin may have stored weapons. But the Authority found that, on the applicant's release, the authorities did not seriously consider, among other things, that the applicant had knowledge of the cousin's involvement with the LTTE, including the cousin's having stored any weapons. 21 On a reading of the amended notice of appeal in a manner favourable to the appellant, there are the following potential further grounds of appeal: (1) the Authority did not consider the appellant's claims cumulatively (see particulars (d) and (e)); and (2) the Authority did not consider all of the grounds of the amended application (see particular (e)). 22 These grounds were not raised before the primary judge by the applicant's legal representative. It follows that his Honour cannot have fallen into error with respect to them. For the appellant to raise these grounds now requires a grant of leave: Francuziak v Minister for Justice [2015] FCAFC 162; (2015) 238 FCR 332 at 335 [11]. No application for such leave was made. However, in circumstances where the appellant is now unrepresented and the Minister has addressed these grounds, I consider it appropriate to consider whether to exercise my discretion to grant leave to rely upon them. The exercise of that discretion is informed by s 37M of the Federal Court of Australia Act 1976 (Cth), which requires the discretion to be exercised in a manner which facilitates the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. As the Full Court (Katzmann, Banks-Smith and Rofe JJ) explained in Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 26 at [34]-[37], the predominant consideration is the interests of justice: see also VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at 598 [46] (Kiefel, Weinberg and Stone JJ) and Francuziak at [11]. In considering the interests of justice, the prospects of success of the proposed new grounds are an important consideration (Khalil at [36], EQV20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 129 at [5] (Rangiah, Stewart and Cheeseman JJ)), as is the adequacy of any explanation for the ground not having been raised below (VUAX at [48]). As the Full Court in VUAX explained at [48], where there is no adequate explanation for the failure to take the point before the primary judge, and the point seems to be of doubtful merit, leave should generally be refused. 23 I am not satisfied that either ground has any merit. It is clear that the Authority did consider the appellant's claims cumulatively. This is apparent from the Reasons read as a whole and in particular from the following passages: 64. Viewed together, I am satisfied there is no real chance of the applicant facing serious harm as a returnee, as a former asylum seeker, on the basis of his limited profile, or as a person who departed the country in breach of Sri Lankan law. Refugee: conclusion 65. Weighing all the information before me, I accept that as a Tamil male living in a former conflict area, he may face some low level discrimination, questioning and/or monitoring by the authorities. I also accept that as a returnee who departed the country illegally he may be detained, questioned by the authorities, processed and potentially fined. Whether separately or cumulatively, I am satisfied this would not constitute serious harm, or that there is any real chance of him being seriously harmed for these reasons. … 70. I have accepted the applicant may face a low level degree of societal discrimination, questioning and monitoring by the authorities on his return to Sri Lanka. I have also accepted there is a real chance the applicant may be detained at the airport, questioned and fined on return to the country. I do not accept these matters would amount to significant harm as defined under the Act. I find that they would not constitute the death penalty, arbitrary deprivation of life or torture. I am also satisfied they would not involve the intentional infliction of pain or suffering that is cruel or inhuman in nature, severe pain or suffering, or would be intended to cause extreme humiliation. Whether separately or cumulatively, I do not accept the applicant will face discrimination or treatment in Sri Lanka that would amount to significant harm for the purposes of s.36(2A). (emphasis added)

Alternative analysis: application for leave to appeal 24 If the primary judge's decision were to be treated as an interlocutory decision for which leave to appeal (and an extension of time in which to do so) is necessary, I would not grant such leave. In an application to extend the time to seek leave to appeal, the relevant considerations include the length of the delay, the adequacy of the explanation for the delay, any prejudice to the parties and the merits of the proposed application for leave to appeal. In an application for leave to appeal, the principal considerations are whether the judgment from which leave to appeal is sought is attended with sufficient doubt to warrant it being set aside and whether substantial injustice would result, supposing it to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ). Thus, an important factor is the prospects of success of the underlying appeal. For the reasons set out above, the prospects of success on the appeal are not sufficient to justify a grant of leave.

Other matters raised by the appellant 25 The appellant submitted in his oral submissions that he was unsuccessful before the primary judge because of the incompetence of his legal representative in not putting information to the primary judge that the appellant had provided to that legal representative for consideration. This is not a ground of appeal in the amended notice of appeal and I refuse leave to rely upon it in circumstances where there is no evidence supporting the assertion of incompetence and in view of the burden of proof faced by a party propounding such an assertion: see Mawhinney v Australian Securities and Investments Commission [2022] FCAFC 159; (2022) 405 ALR 292 at 322 [118] (Jagot, O'Bryan and Cheeseman JJ). 26 The appellant also made submissions concerning the merits of the claims that he made to the Authority. It is no part of this Court's role to undertake a review of the merits of those claims as that is a matter entrusted by the Commonwealth Parliament to the Minister and the Authority. As explained to the appellant, the Court's role is limited to considering whether the primary judge made an error.

CONCLUSION 27 For the reasons set out above, the appeal should be dismissed with costs. I will make orders accordingly. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman.

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