ENB19 v Minister for Immigration, Citizenship and Multicultural Affairs

Federal Court of Australia|2023-07-27|Before: Goodman J

The application for leave and the affidavit in support 15 As noted above, the applicant seeks leave to appeal from the decision of the primary judge. In support of that application, the applicant made an affidavit which included (as written): … 4. On 20th July 2020 at 2.15pm before judge Drive at the FederalCircuit court of Australia dismissed my matter and made certain orders. 5. Annexed marked A, copy of the order. 6. Annexed marked AB 2, is a copy of the order made by the primary judge 7. I was self represented before primary judge. Due to Covid 19 I lost the job and financially under affordable to engaged a Lawyer. 8. On the hearing date, I was told , I will be given any another date. Later the day I was found it was not a correct information. 9. Primary Judge refused to adjourn my matter because there was no arguable case of jurisdiction by the Authority. 10. Counsel has reviewed my matter propose new grounds. 11. I did not wish to have the Application considered without Oral arguments. 12. I ask the Court to grant relief sought in the Application. 13. Draft notice of Appeal that complies with rules 36.01 (1) and (2) 14. I rely on the following grounds to support the Application. Grounds of Application 1. The Federal Court failed to find that the authority decision was vitiated by jurisdictional error in that it failed to consider an integer of the Applicant s protection claims, leading to a failure to exercise jurisdiction. 2. Ground TWO. The Federal Circuit court failed to find that the authorities Failed to exercise it's powers pursuant to s473CC within the bounds of reasonableness in that it made findings that were not supported by evidence, leading to a decision that was plainly unjust and lacking an evident and intelligent justification. Particulars: The Authority noted that the refugees and failed asylum seekers face practical challenges, when they send back to their home countries. They could not find employment, Reintegration. SriLankan Authorities not provide and survival support.

The need for leave to appeal 16 The applicant requires leave to appeal for two reasons. 17 First, the decision of the primary judge under r 44.12(1)(a) of the Rules is interlocutory: r 44.12(2). Accordingly, an appeal from the decision is not to be brought without leave: 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The question whether leave to appeal should be granted turns principally upon whether: (1) the orders of the primary judge are attended by sufficient doubt that re-consideration on appeal is warranted; and (2) substantial injustice would result if leave were refused: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 (Sheppard, Burchett and Heerey JJ). Those requirements are cumulative and each limb must be satisfied: Rawson Finances Pty Ltd v DCT [2010] FCAFC 139; (2010) 81 ATR 36 at 38 [5] (Ryan, Stone and Jagot JJ). 18 Secondly, the proposed grounds of appeal concern issues not advanced before the primary judge, and as such, leave is required to raise them before this Court: Francuziak v Minister for Justice [2015] FCAFC 162; (2015) 238 FCR 332 at 335 [11] (Siopis, Flick and Katzmann JJ). When determining whether to grant leave for a party to raise arguments not relied upon before a primary judge the Court principally considers the interests of justice: Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 26 at [34] to [37] (Katzmann, Banks-Smith and Rofe JJ); 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]. The merits (or lack thereof) of proposed new grounds of appeal are a significant consideration in the Court's determination of whether to grant leave: Khalil at [36], EQV20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 129 at [5] (Rangiah, Stewart and Cheeseman JJ).

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.

Federal Circuit Court Rules 2011(Cth)

A. Introduction 1 The applicant is a citizen of Sri Lanka. On 16 March 2017, he applied for a Safe Haven Enterprise (Subclass 790) visa. On 17 September 2019, a delegate of the first respondent (Minister) refused, pursuant to s 65 of the Migration Act 1958 (Cth), to grant a visa to the applicant. On 20 September 2019, the delegate's decision was referred to the Immigration Assessment Authority for review and on 21 October 2019, the Authority affirmed the delegate's decision to refuse the visa and provided its reasons (Reasons, or R) for doing so. 2 On 15 November 2019, the applicant filed an application in the (then) Federal Circuit Court of Australia seeking judicial review of the Authority's decision. On 20 July 2020, the primary judge heard and dismissed this application under (the since repealed) r 44.12(1)(a) of the Federal Circuit Court Rules 2011 (Cth), on the basis that the applicant was unable to demonstrate an arguable case of jurisdictional error by the Authority: ENB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1968 (J). 3 On 31 July 2020, the applicant filed an application in this Court for leave to appeal from the primary judge's decision. For the reasons below, leave to appeal should not be granted.

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