ENB19 v Minister for Immigration, Citizenship and Multicultural Affairs

Consideration 19 As is apparent, a central factor in considering whether to grant: (1) leave to appeal an interlocutory order; and (2) leave to advance grounds of review not advanced below, is the underlying merits of the applicant's case. I turn now to consider the merits of the grounds of appeal that the applicant wishes to advance. 20 Those grounds are described in the applicant's affidavit, which is set out at [15] above. I will treat (as the Minister fairly did) the listed particulars as applying to both proposed grounds. 21 The first proposed ground of appeal is that the Authority failed to consider an integer of the applicant's protection claim, namely that refugees and failed asylum seekers face practical challenges on return to Sri Lanka, including an inability to find employment and difficulty re-integrating, and that Sri Lankan authorities do not provide any "survival support" to them. 22 I do not accept that it was part of the applicant's claims for protection that he would face practical challenges of the kind described. Such claims do not appear in the applicant's statement, his supplementary statement or the delegate's summary of his interview. Nor does such a claim feature in the summaries of the applicant's claims set out by the delegate, the Authority or the primary judge. 23 In any event, it is clear that the Authority addressed the practical challenges that the applicant would face upon return to Sri Lanka at R[39] to [40] and [47] (see [11] above). 24 The second proposed ground of appeal is that the Authority failed to exercise its power to review the Minister's decision within the bounds of reasonableness because it made findings unsupported by evidence, with the result that the Authority's decision was plainly unjust and lacked an evident and intelligent justification. 25 The only finding identified in this proposed ground of appeal is the finding that refugees and failed asylum seekers face practical challenges when returned to their home countries. As is clear from the paragraphs of the Reasons set out at [11] above, there was an evidentiary basis for that finding in the form of DFAT country information. 26 The Minister's submissions interpreted the second proposed ground of appeal as referring to the credibility findings made against the applicant. I do not interpret the second proposed ground in that way. In any event, I accept the Minister's submissions that the Authority's credibility findings were based on logically probative evidence, being the inconsistencies and implausibility of aspects of the applicant's evidence. Further, and as found by the primary judge at J[21] (see [13] above), the Authority's credibility findings were plainly open to it for the reasons it identified. 27 For the reasons set out above, the proposed grounds of appeal lack merit. It follows that: the orders of the primary judge are not attended by sufficient doubt that re-consideration is warranted; I am not satisfied that the refusal of leave to appeal would occasion substantial injustice; and the proposed grounds lack sufficient merit to justify a grant of leave to raise points not raised before the primary judge. 28 I note that an explanation as to why new grounds were not raised below is an important consideration in determining whether leave ought to be granted: VUAX at 598 [46]. The applicant's affidavit stated that he was unrepresented before the primary judge; and that counsel had reviewed his matter and proposed the new grounds. I accept that evidence as an explanation as to why the grounds now propounded were not raised before the primary judge. However, the absence of merit in the proposed grounds of appeal is determinative of the application for leave to appeal.

Other matters raised by the applicant 29 The applicant's affidavit (see [15] above) referred to a refusal by the primary judge to adjourn the hearing before him. However, despite the applicant's evidence that counsel had reviewed his matter and proposed new grounds, the proposed grounds of appeal did not include a challenge to the primary judge's decision to refuse to adjourn the hearing. No submissions were made on this issue and there is no evidence before the Court of the events surrounding that refusal. Thus, I do not consider this issue further. 30 The applicant made oral submissions that addressed the merits of his protection claims and the challenges he would face if he were to be returned to Sri Lanka. However, as the Minister submitted, consideration of the merits of those claims and of the Authority's decision concerning those claims is beyond the jurisdiction of this Court. The jurisdiction of the Court below on a judicial review (and thus this Court on appeal), is confined to deciding, by reference to the grounds of review advanced, whether the decision under review was made within the authority conferred by the statute upon the decision-maker: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at 520 to 521 ([29] to [30]) (Kiefel CJ, Gageler, Keane and Gleeson JJ).

F. Conclusion 31 For the reasons set out above, leave to appeal from the primary decision should be refused. 32 As the applicant has been unsuccessful he should pay the Minister's costs of the application. The Minister seeks an order that the applicant pay the Minister's costs fixed in the sum of $3,500. The Court's discretion with respect to costs is broad and includes the making of a lump sum order for costs. The making of such an order is appropriate in the present case given that: it accords with the Court's preference for lump sum costs orders (Costs Practice Note at [3.3] and [4.1]; Paciocco v Australia and New Zealand Banking Group Limited (No 2) [2017] FCAFC 146; (2017) 253 FCR 403 at 406 to 407 ([16] to [19]) (Allsop CJ, Besanko and Middleton JJ); it will save the parties the time and costs attendant upon a taxation process; the costs claimed by the Minister appear to be proportionate to the complexity of the issues raised in the proceeding; and the amount sought is less than the amount that could be claimed in a short form bill for an appeal involving a migration decision that is dismissed after hearing ($7,965 as set out in the Federal Court Rules 2011 (Cth), Schedule 3, Item 15.2). 33 I will make orders accordingly. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman.