CDR16 v Minister for Immigration & Anor
[2016] FCCA 2759
•26 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CDR16 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2759 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming fear of harm in Sri Lanka – applicant disbelieved in critical respects and in other respects, his fear found not to be well-founded – whether the IAA decision is vitiated by procedural unfairness considered – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.5, 46A, 65, 357A, 359A, 422B, 424A, 473BB, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473DF, 473FA, 473JA, 473JB, 473JC, 473JD, 473JE, 473JF, 473GA, 473GB |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510 AFK16 v Minister for Immigration [2016] FCCA 1826 Minister for Immigration v SZJSS (2010) 243 CLR 164 Minister for Immigration v SZMDS (2010) 240 CLR 611 |
| Applicant: | CDR16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 377 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 26 October 2016 |
| Delivered at: | Sydney via videolink to Perth |
| Delivered on: | 26 October 2016 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr K Eskerie of Sparke Helmore |
ORDERS
The Court directs that the name of the applicant is not to appear on the transcript of proceedings.
The application received by the registry on 2 August 2016 and filed on 18 August 2016 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 377 of 2016
| CDR16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me, an application filed on 18 August 2016, seeking judicial review of a decision of the Immigration Assessment Authority (IAA) made on 29 June 2016[1]. The IAA affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Sri Lanka and made claims of a fear of harm there on various bases.
[1] The application was received in the registry on 2 August 2016 and on that basis was assumed to have been made within time
Background to the applicant’s claims for protection and the decision of the IAA on them are set out in the Minister’s outline of submissions filed on 19 October 2016.
The applicant, a citizen of Sri Lanka[2], arrived in Australia on 20 September 2012 as an Unauthorised Maritime Arrival[3].
[2] Court Book (CB) 134
[3] CB 224
On 3 September 2013, the applicant lodged an application for a protection (Class XA) visa, which was deemed invalid on 5 August 2014[4].
[4] CB 29-109
On 18 September 2015, the applicant lodged a valid application for the visa with the Minister’s Department after the Minister had lifted the bar under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act) on 24 August 2015[5].
[5] CB 117-182
The applicant claimed to fear harm in Sri Lanka as a result of his political opinion and his illegal departure. The applicant specifically claimed that:
a)in 2006, he was detained by the Sri Lankan Army. The people that detained him included members of the Karuna group and the brother of a boy named Alan[6];
[6] CB 227
b)on 20 July 2011, the applicant was called to a nearby playground, having been told that his son was having difficulty breathing. He took his son to the hospital but they could not save him and he died[7];
[7] CB 164-165[6]-[10]
c)the applicant was told that his son had been bashed by two Tamil boys over a dispute while playing cricket and one of the boys, Alan, had a brother who was a member of the Karuna group[8];
[8] CB 165[12]
d)a complaint was lodged with the police over the death of the applicant’s son. Alan was subsequently arrested. However the second attacker was never located[9];
[9] CB 165[13]-[16]
e)legal proceedings commenced against Alan but the case was subsequently withdrawn by the applicant[10];
[10] CB 166[18] and [23]
f)Alan’s brother harassed the applicant including in the following ways:
i)five days after his son’s funeral, Alan’s brother attended the applicant’s house and threatened him, demanding that he withdraw the case against Alan[11];
ii)a few days prior to the third court hearing, he was stopped by five men (including Alan’s brother), threatened and physically assaulted[12].
g)in June 2012, the applicant began helping a Tamil National Alliance (TNA) candidate[13];
h)in July 2012, while campaigning, the applicant was beaten and threatened by Alan’s brother[14]. A week after the incident, Alan’s brother assaulted the applicant while he was in a bar and threatened to kill the applicant[15];
i)in approximately November 2012, Alan’s brother and members of the Karuna group went in search of the applicant and were told he had gone overseas[16];
j)Burghers were discriminated against by other Sri Lankans[17];
k)he would be harmed as a result of his perceived Tamil ethnicity[18].
[11] CB 166[19]-[20]
[12] CB 166[22]
[13] CB 166[24]. At interview before the delegate it was confirmed that the applicant was a member of the United National Party (UNP) rather than the TNA (CB 227)
[14] CB 166-167[25]
[15] CB 167[26]
[16] CB 167[28]
[17] CB 232
[18] CB 232
On 16 May 2016, the delegate refused to grant the applicant the visa and referred the decision to the IAA for review under Part 7AA of the Migration Act[19].
[19] CB 224-246
IAA decision
The IAA had regard to the material sent to it under s.473CB of the Migration Act[20]. No other documents were obtained or received by the IAA.
[20] CB 267[3]
The IAA made the following factual findings:
a)it accepted that the applicant was of Sri Lankan Nationality, Burgher ethnicity and Catholic religion, and that he spoke Tamil[21];
[21] CB 269[8]
b)it accepted that the applicant was displaced as a result of the tsunami and lost his father as a result of that event[22];
[22] CB 269[9]
c)it accepted that the applicant’s son passed away on 20 July 2011 in the context of a dispute[23];
[23] CB 270[10]
d)it accepted that a person was initially apprehended or accused over the death but that the case did not proceed[24];
e)it did not accept the applicant’s claims to have experienced threats and other problems at the hands of Alan’s brother either before or after his departure to Australia[25] or to have been involved with either the TNA or UNP[26]. Specifically, it found the applicant’s evidence to the delegate in that regard to be formulaic with little spontaneity[27], and inconsistent in relation to:
i)the timing of the withdrawal of the case[28];
ii)what political party the applicant supported and the level of that support[29].
f)the IAA accepted that the applicant was detained by armed forces for a number of days in 2006 and mistreated[30]. However, it did not accept that there was any connection between that incident and the death of the applicant’s son[31]. The IAA further found that the detention appeared to be an isolated incident that had occurred in the context of civil war[32];
g)the applicant’s claims did not demonstrate any significant level of marginalisation or discrimination as a result of his ethnicity[33];
h)it was possible that the applicant may be perceived to be Tamil[34];
i)the applicant would be charged under the Immigrants and Emigrants Act 1949 (Immigrants and Emigrants Act) and may be held in custody at the airport[35], although the possibility of the applicant being held on remand for a lengthy period was remote[36]. The IAA did not, however, accept that a custodial sentence would be imposed[37] and found that the applicant would instead be fined[38].
[24] CB 270[10]
[25] CB 270[12] and 272[18]
[26] CB 271[16]
[27] CB 270[12]
[28] CB 270-271[13]-[14]
[29] CB 271[15]-[16]
[30] CB 272[20]
[31] CB 272[21]
[32] CB 272-273[22]
[33] CB 273[23]
[34] CB 273-274[26]
[35] CB 275[31]
[36] CB 275[32]
[37] CB 275[31]
[38] CB 275[32]
The IAA set out the relevant test under the Migration Act for refugee assessment[39] and concluded that the applicant did not have a well-founded fear of persecution in Sri Lanka. As a result of the factual findings noted above, the IAA found that:
[39] CB 269[6]-[7]
a)there was not a real chance of harm to the applicant in connection to his wife’s claimed experiences, as the applicant had confirmed that he was not aware of any problems his wife had experienced or their connection with him[40];
b)it did not accept that there was a real chance the applicant would be harmed in connection with any political views or activities[41];
c)it did not accept that there was a real chance of the applicant being harmed by Alan’s brother or members of the Karuna group or any other person in connection to the death of his son or the subsequent court case[42];
d)it did not accept that there was a real risk the applicant would be harmed in the future in connection with his 2006 detention or that he would again experience similar harm[43];.
e)it did not accept that the applicant would experience discrimination at a level that amounted to serious harm in the reasonably foreseeable future as a result of his ethnicity[44];
f)the applicant had not claimed to have experienced harm in the past as a result of his religion and there was not a real chance that he would experience harm for that reason in the future[45];
g)it was not satisfied that there was a real chance of the applicant being perceived to be Tamil and harmed on that basis in the reasonably foreseeable future[46];
h)the process of questioning, of itself, did not amount to serious harm and while the IAA accepted that there had been reports of returnees, including failed asylum seekers, being harmed on return to Sri Lanka, there was not a real chance of the applicant being identified as a person of interest to Sri Lankan authorities[47];
i)as the applicant had no adverse background, it was not satisfied that there was a real chance of him being subjected to torture or other mistreatment, including by inmates whilst on remand[48] and found that any harm faced as a result of poor prison conditions or the payment of a fine did not amount to serious harm[49]. In any event, the IAA found that any treatment of the applicant under the Immigrants and Emigrants Act was not discriminatory but rather a law of general application[50].
[40] CB 269[9]
[41] CB 272[18]
[42] CB 272[18]
[43] CB 272-273[22]
[44] CB 273[23]
[45] CB 273[24]
[46] CB 273-274[26]
[47] CB 274-275[29]
[48] CB275[33]
[49] CB 276[34]
[50] CB 276[35]
The IAA went on to consider whether the applicant faced a real risk of significant harm, concluding that having considered the applicant’s circumstances, individually and cumulatively, it was satisfied that the applicant would not face a real risk of such harm for any of the reasons claimed[51]. The IAA made the following notable findings:
a)the conditions in prison arose due to a lack of resources and did not amount to an act or omission of the Sri Lankan officials as required by the definitions of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment[52].
[51] CB 278[42]
[52] CB 277-278[40]
The imposition of a fine which could be paid in instalments did not amount to significant harm[53].
[53] CB 278[41]
The present proceedings
These proceedings began with the show cause application filed on 18 August 2016. There are three grounds in that application:
1.The decision of the IAA member is an unfair judgment based on general information available rather than specific case, considering every case is unique and different in detail.
2.There was a denial in procedures of fairness in IAA interview.
3.The decision was made on the basis of inconsistency. Not considering applicant’s state of mind at the time of first interview. While admitting the constraints implied by the first interviewer by keeping details brief.
(errors in original)
The application is supported by an affidavit filed with it, to which are annexed a number of documents. I received the affidavit, subject to relevance. As matters transpired, the documents following the copy of the IAA decision annexed to the affidavit are not relevant as they only go to the applicant’s protection claims which were considered by the IAA.
I also have before me as evidence, the court book filed on 5 October 2016.
Procedural orders in relation to this matter were initially made by a registrar in Perth on 14 September 2016. The matter was subsequently allocated to my docket and on 26 September 2016, I made orders amending the timetable in order to expedite the matter because the applicant is held in immigration detention.
At the outset of today’s hearing, the applicant sought an adjournment for several reasons. The first reason was so that the applicant could obtain further documents from Sri Lanka to support his protection claims and to translate them into the English language. I ruled that that issue did not call for an adjournment because the documents in question were not before the Minister’s delegate or the IAA and hence, could not be relevant to the issues raised in the application before the Court.
The applicant also sought an adjournment so that he could pursue an application for Legal Aid. The applicant told me from the bar table that he has applied for Legal Aid and has received an acknowledgement and request for further information. I ruled that, given the state of that application for Legal Aid, no adjournment was called for.
Only the Minister prepared written submissions in accordance with the Court’s procedural orders.
I invited oral submissions from the applicant. The applicant was not able to advance any arguments in support of the grounds of review raised. In short, he told me that someone had assisted him in preparing his application and the grounds raised were not something that he understands.
Consideration
There is, currently, very little Court authority concerning decisions of the IAA. Judge Street dealt with a decision of the IAA in BCQ16 v Minister for Immigration & Anor[54]. That case, however, turned on its particular facts and did not establish any general issue of principle. Judge Cameron dealt with an interlocutory issue in AFK16 v Minister for Immigration & Anor[55]. Judge Cameron made some pertinent observations about the procedural code under which the IAA operates at [10] to [12] of his judgment. The solicitor for the Minister today made oral submissions concerning the statutory regime under which the IAA operates and how decisions concerning so-called fast track applicants are made. Those submissions are consistent with written submissions made by counsel concerning the relevant statutory framework in another matter which is currently part heard.
[54] [2016] FCCA 2087
[55] [2016] FCCA 1826
I accept that those submissions accurately reflect the statutory regime.
The Fast Track Assessment Process (FTAP) was introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). The aim of the FTAP is to provide an efficient and cost-effective means of processing the protection visa applications of those who arrived in Australia as unauthorised maritime arrivals (UMAs) on or after 13 August 2012 and before 1 January 2014.
A person who is subject to the FTAP is a “fast track applicant”—a concept defined in s.5(1). It is not in dispute that the applicant was one such applicant.
A person is a “fast track review applicant” if he or she is a “fast track applicant who is not an excluded fast track review applicant”[56]. It is not in dispute that the applicant was a fast track review applicant.
[56] Section 5(1)
Subject to certain exceptions which are not relevant for present purposes, a “fast track decision” is defined in s.5(1) as a decision to refuse to grant a protection visa to a fast track applicant. Once again, there is no dispute that the delegate’s decision was a fast track decision.
Part 7AA of the Migration Act establishes a comprehensive scheme of review with respect to certain decisions to refuse to grant protection visas to fast track applicants.
Division 8 of Part 7AA[57] establishes the IAA, the body conducting reviews of fast track reviewable decisions.
[57] Sections 473JA-473JF
Division 2 of Part 7AA[58] sets out the procedure for referring reviewable decisions to the IAA.
[58] Sections 473CA-473CC
Under s.473CA, the Minister must refer a “fast track reviewable decision” to the IAA as soon as reasonably practicable after the decision is made. A fast track reviewable decision is defined in s 473BB as, relevantly, a fast track decision in relation to a fast track reviewable applicant.
Once the Minister has referred a fast track reviewable decision to the IAA, s.473CB requires the Secretary of the Department to give to the IAA certain material in respect of each decision at the same time as, or as soon as reasonably practicable after, such referral, namely:
a)a statement that sets out the findings of fact made by the decision maker, refers to the evidence on which those findings were based, and gives the reasons for the decision;
b)material provided by the “referred applicant” (defined in s.473BB as an applicant for a protection visa in respect of whom a fast track reviewable decision is referred under s.473CA) to the decision-maker before the decision was made;
c)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 IAA) to be relevant to the review; and
d)the applicant’s contact details.
Subsection 473CC(1) requires the IAA to review a fast track reviewable decision referred to it. Subsection 473CC(2) provides that the IAA may either affirm the decision or remit it to the Minister for reconsideration in accordance with such directions or recommendations as are permitted by the Migration Regulations 1994 (Cth).
Division 3 of Part 7AA[59] deals with the manner in which reviews are to be conducted by the IAA.
[59] Sections 473DA-473DF
Subsection 473DA(1) provides that Division 3 of Part 7AA, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule “in relation to reviews conducted by the [IAA]”. It is important to note that this provision is couched in broader terms than ss.357A(1) and 422B(1) and operates to exclude the common law natural justice hearing rule from conditioning the conduct of reviews before the IAA[60].
[60] AFK16 v Minister for Immigration [2016] FCCA 1826 at [12] per Judge Cameron
Subsection 473DB(1) compels the IAA, subject to Part 7AA, to review a fast track reviewable decision referred to it on the papers, that is, by considering the review material provided to the IAA under s.473CB “without accepting or requesting new information” and “without interviewing the referred applicant”.
However, s.473DC(1) permits the IAA, subject to Part 7AA, to “get any documents or information” (called “new information”) that “were not before the Minister when the Minister made the decision under section 65” and “the [IAA] considers may be relevant”. Subsection (2) confirms the discretionary nature of the power in subsection (1) by providing that the IAA “does not have a duty to get, request or accept any new information whether the [IAA] is requested to do so by a referred applicant or by any other person, or in any other circumstances”.
However, new information can only be considered by the IAA if the requirements of s.473DD are satisfied. Section 473DD provides that, for the purposes of making a decision in relation to a fast track reviewable decision, the IAA must not consider any new information unless:
a)the IAA is satisfied that there are exceptional circumstances to justify considering that information; and
b)the referred applicant satisfies the IAA that, in relation to any new information given, or proposed to be given, to the IAA by him or her, the new information:
i)was not, and could not have been, provided to the Minister before the Minister made the decision under s.65; or
ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
Subsection 473DE(1) imposes certain disclosure obligations on the IAA in relation to new information not dissimilar to those imposed on the Administrative Appeals Tribunal by ss.359A and 424A.
Division 5 of Part 7AA contains provisions relating to the exercise of powers and functions by, relevantly, the IAA. It suffices only to note s.473FA(1), which provides that the IAA, in carrying out its functions under the Act, is to pursue the objective of “providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).”
This reinforces the legislature’s aim of establishing a form of review that is limited in scope and efficient. Subsection 473FA(2) provides that, in reviewing a decision, the IAA is not bound by technicalities, legal forms or rules of evidence.
In the present case, the applicant is unable to advance further the grounds of review he has raised. In relation to Ground 1, it is plain that the IAA comprehensively considered the applicant’s claim. The Tribunal’s use of country information was orthodox in order to assist it to consider the applicant’s claims. I otherwise agree with the Minister’s submissions on this ground.
The Minister has taken this ground to be a complaint in relation to the IAA’s reliance on independent country information in the assessment of the applicant’s claims. I agree.
It was open to the IAA to have regard to independent country information. Further, the choice and assessment of country information was a factual matter for the IAA[61].
[61] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]-[13]
The IAA considered the applicant’s claims by reference to his particular circumstances and in light of the relevant country information[62] and made findings open to it on the available evidence[63].
[62] See for example CB 273[23], 274-275[29] and 276[33]
[63] Minister for Immigration v SZMDS (2010) 240 CLR 611
No jurisdictional error is revealed by this ground.
Ground 2 is misconceived as no interview took place before the IAA. Further, it is clear from the court book that no interview was requested. Indeed, no submission at all was made to the IAA which might have contained new information calling for some further interview. I accept that the IAA followed the procedural code which binds it. I otherwise agree with the Minister’s submissions concerning this ground.
Insofar as this ground seeks to contend that the IAA erred in failing to invite the applicant to an interview before it, such a contention must fail.
Given that Division 3, Part 7AA of the Migration Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule[64], the applicant’s arguments must be assessed against the relevant statutory requirements in Division 3, Part 7AA.
[64] See s.473DA of the Migration Act
Section 473DB(1)(b) of the Migration Act dictates that, subject to Part 7AA, the IAA must review a fast track reviewable decision referred to it without interviewing the referred applicant.
While the IAA had the power to get any documents or information or invite a person to give new information, it was under no duty to get or request such information and could only consider such information in exceptional circumstances[65].
[65] Sections 473DC and 473DD of the Migration Act
By letter dated 19 May 2016[66], the IAA provided the applicant with information in relation to the circumstances in which it could consider new information and noted that any new information the applicant sought to put before it was required to be provided within 21 days of the date on which the applicant’s case was referred by the Department[67].
[66] CB 248-259
[67] CB 258
Thus, the applicant was put on notice of the referral and the relevant procedure of the IAA review (including the possibility of providing new information and the requirement that there be exceptional circumstances for new information to be considered). The applicant did not seek to place any new information before the IAA and has not identified any information which he alleges he was prevented from submitting to the IAA, let alone specifying what “exceptional circumstances” existed to allow such information to be considered.
Finally, the Minister submits and I accept that, insofar as the applicant advances a contention that the IAA acted unreasonably in not exercising its discretion under s.473DC to invite the applicant to give new information, he has identified no proper basis for such a contention[68]. Nor was there otherwise a breach of the procedural fairness or natural justice requirements by the IAA in the conduct of the review.
[68] Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332 at [28]
In Ground 3, the applicant’s reference to the first interview appears to be a reference to his arrival interview set out in the court book at pages 1 to 11.
It is true that the IAA was concerned about inconsistencies in the applicant’s claims. However, the particular issue of the conclusion that should be drawn from what the applicant said at his first interview was addressed by the IAA at [11] of its reasons[69]:
Turning to the applicant’s claims to have been threatened and harmed by Alan’s brother, I have before me a handwritten record of an interview on 26 September 2012, shortly after the applicant’s arrival in Australia, which refers to the applicant’s 2006 detention and health problems of his daughter, but contains no reference to any problems arising from the death of his son. However, I place no weight on that omission as I am unable to verify the questions asked of the applicant or his full responses. I note that, as put to the applicant by the delegate, at the 2013 arrival interview the applicant also did not raise any problems in connection to the death of his son. However, I similarly do not draw any adverse inference from this omission. The applicant explained that during the arrival interview he was asked to be brief and had not been able to raise all of his claims. Having listened to the recording of the 8 January 2013 interview, I find this to be correct. The applicant was asked for the reasons why he left Sri Lanka, and spoke in Tamil before being interrupted by the interviewing officer. His response was not interpreted and the interviewer went on to ask specific questions. The applicant did later refer to being ‘disturbed’ by unknown persons, and to having no safety. Contrary to what is shown on the written record of that interview, he was not in fact asked whether he was a member of any political groups. I accept that the applicant did not have a full opportunity to detail his claims at the arrival interview, and that to the extent he was able to, his evidence was not inconsistent with his current claims.
[69] CB 270
I conclude that the IAA was alert to the issue which had been raised by the applicant at interview before the Minister’s delegate. The IAA took proper account of that issue.
I otherwise agree with the Minister’s submissions in relation to this ground.
The inconsistencies identified by the IAA included those in relation to:
a)the timing of the withdrawal of the court case; and
b)the political party the applicant claimed to support.
The inconsistencies identified arose from a consideration, against each other, of:
a)the applicant’s written statement dated 9 September 2015, the interview before the delegate and the letter from the Kattankudy Police Station[70]; and
b)the applicant’s written statement dated 9 September 2015, his written statement dated 27 August 2013, the letter from the UNP and the evidence given at interview with the delegate[71].
[70] CB 270-271[13]
[71] CB 271[15]-[16]
Furthermore, the IAA explicitly noted that it placed no weight on the omission of the claim in relation to the applicant’s son at the arrival interview and further drew no adverse conclusion from the fact that the claim was also not raised at the entry interview[72]. In that regard, the IAA found that the applicant’s evidence was not inconsistent with his claims[73].
[72] CB 270[11]
[73] CB 270[11]
Accordingly, the applicant’s complaint in relation to the weight allegedly given to inconsistencies arising from the arrival interview has no factual basis. In any event, the weight to be given to evidence is a matter for the IAA alone[74].
[74] Abebe v Commonwealth (1999) 197 CLR 510 at [197] (Gummow and Hayne JJ); Minister for Immigration v SZJSS (2010) 243 CLR 164 at [33] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ)
I conclude that the applicant is unable to demonstrate that the decision of the IAA is affected by any jurisdictional error. I will, therefore, order that the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $4,500. The applicant claims impecuniosity, but as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order. The costs sought are substantially below scale, and I have no difficulty in accepting that they are reasonable when considered on a party and party basis. The applicant indicated that if the order for costs were to be made, he would seek to have the debt written off.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 28 October 2016
6
8
5