M30 of 2004 v Minister for Immigration - [2005] FMCA 1852

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M30 of 2004 v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1852

MIGRATION – Protection Visa – whether denial of procedural fairness.

PRACTICE AND PROCEDURE – Application to set aside orders in absence of Applicant – Counsel briefed to attend Court on day before scheduled hearing date – conduct of lawyers – whether arguable case.

Migration Act 1958, ss.47, 65, 414, 424A

Kostokanellis v Allen (1974) VR 596

Applicant:

APPLICANT M30 OF 2004

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 132 of 2005

Judgment of:

McInnis FM

Hearing date:

5 December 2005

Delivered at:

Melbourne

Delivered on:

20 December 2005

REPRESENTATION

Counsel for the Applicant:

Ms E. Lafit

Solicitors for the Applicant:

Sulaika Dhanapala Solicitor

Counsel for the Respondents:

Ms S. Burchell

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The Application filed on 7 October 2005 be dismissed.
The issue of costs be reserved to be considered on a date to be fixed by the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 132 of 2005

APPLICANT M30/2004

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

In this application, the Applicant had sought judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 15 February 2001, whereby a delegate of the Respondent's decision to refuse a protection visa was affirmed. Before this Court, the Applicant has sought to set aside an Order made by the Court on 6 October 2005, which had dismissed the substantive application and ordered the Applicant to pay the Respondent's costs. That Order of the Court was made in the absence of the Applicant.
It should be noted that the substantive application in this matter had commenced in the High Court of Australia on 17 February 2004, seeking an Order Nisi in relation to the Tribunal's decision. The Applicant has sought an extension of time to prosecute the case in this Court. It is further noted that on 13 July 2004 the High Court remitted the application to the Federal Court and on 19 October 2004, the Applicant by his Solicitors filed an amended application.
That amended application clearly refers to the Solicitor's name, and it is perhaps not surprising that by notice of listing dated 21 February 2005, the Court notified the Solicitor on record for the Applicant that the matter was to be listed for hearing in this Court on 6 October 2005. No issue is taken in relation to the notification invited by the Court, and nor indeed is there any issue taken that that notice referred to the date of hearing as being "6 October 2005".
However, in support of the application to set aside the Order made on 6 October 2005 in the absence of the Applicant, the Solicitor on record for the Applicant has provided two affidavits sworn 7 October 2005 (the first affidavit) and 28 November 2005 (the second affidavit).
When the matter came before the Court on the first return date of the application to set aside the Order made in the absence of the Applicant, Counsel appeared for the Applicant and likewise the Respondent was represented. That hearing occurred on 28 October 2005, and at that time, there was only one affidavit sworn by the Applicant's Solicitor, namely the affidavit of 7 October 2005 (“the first affidavit”).
The first affidavit referred to the listing of the matter and that Counsel had been briefed to appear. Somewhat inconsistently, the affidavit of the deponent contains the following:-
“(3) The matter was listed for hearing on 6 October 2005 and accordingly briefed counsel, Stephen Anger, to appear on this day.
(4) On 4 October due to an administrative error, the counsel was inadvertently advised counsel to appear on 5 October 2005 instead 6 October 2005.
(5) On 6 October 2005 on or about 10 am I received a message left on my mobile by the Respondents solicitor, Elena Arduca. Only then did the realisation of this mistake became apparent.
(6) As soon as the mistake was discovered, I contacted counsel on his mobile immediately, Counsel agreed to attend court.
(7) At the time we contacted counsel he was not in his chambers and by the time he arrived the matter had been dismissed.
(8) After I contacted counsel, I also telephoned the Respondents solicitor to inform her about the situation, but she was not available at her office during that time period.
(9) Immediately after I tried to contact the Respondents solicitor, I attempted to contact the court without success.
(10) I am a Ballarat-based solicitor and the distance did not permit me to attend court in person at the scheduled hearing time.
(11) Since the discovery of the human error I have done all in my power to rectify the mistake in this matter.
(12) I respectfully seek the court is indulgence to reinstate this matter to allow the applicant to submit his case as per the amended application.” [sic]
I have reproduced the affidavit exactly as it appears with obvious errors. Perhaps one of the more surprising contradictions is a suggestion that the Solicitor had "accordingly briefed Counsel to appear on this day" after referring to the hearing being "6 October 2005". The next paragraph suggested an administrative error was made and that Counsel was "inadvertently advised to appear on 5 October 2005 instead 6 October 2005".
When the matter came before the Court on 28 October 2005, the Court made it clear to Counsel then appearing that the affidavit material provided appeared to be "hopelessly inadequate". The Court had asked whether or not the deponent was present in Court and was advised that the deponent was not present, and nor had the Respondent requested the presence of the deponent for the purposes of cross‑examination.
The Court then stated:-
“It doesn’t give details of dates, it doesn’t cross reference to file notes, it doesn’t indicate whether or not any reasonable attempt has been made to contact either the Court or the respondent’s solicitors. It doesn’t indicate whether messages were left, it doesn’t indicate or explain even how it would come about that a mistake on a brief to appear which was not a mistake post dating the hearing but pre dating the hearing could in any way have an impact on this application.
It doesn’t really even descend to considering whether or not there might in any event be an arguable case. It doesn’t otherwise refer to it seems to me details which one would normally expect a competent solicitor to refer to. I have to say and I don’t know whether the same view is taken and frankly it doesn’t matter whether the same view is taken by the respondent or the respondent’s advisers but I just find this hopelessly inadequate.”
During the course of that hearing, which ultimately became an application for an adjournment by the Applicant's Counsel then agreed to seek instructions arising from the following:-
“ I really think that – Mr Anger, you can pass this on to those instructing you – lawyers need to understand there is a duty to the Court and care needs to be taken in the preparation of affidavit material to be relied upon, particularly where it is used as the basis of setting aside an order of the Court and despite the lack of request from the respondent that the person attend I say to you I think if I was a solicitor I would be here, to use that colloquial expression, if for no other reason than to ‘face the music’, you know, because the affidavit reveals error on the part of the solicitor.”
In further considering the application for an adjournment, it should also be noted that during the hearing on 28 October 2005, the Court further stated the following:-
“ For the reasons I have given there is at least some explanation offered as to the non-appearance by counsel retained who I suspect has taken on board what I have said and perhaps would want to augment the material with other material and certainly make the deponents available. If that hurdle isn’t overcome I won’t even go to the question of arguable case because if I am not satisfied there is a reasonable explanation, then that might be the end of it. But I think I have to hear the argument. This is now an application for an adjournment.”
It will be clear from the extracts from the transcript, that the Court was concerned about the adequacy of the material then before it from the Solicitors for the Applicant. It seemed to the Court, somewhat unusual that if Counsel were briefed to appear on 5 October 2005 instead of 6 October 2005, then some material might reasonably be expected from either the Solicitor or Counsel as to what occurred if and when Counsel attended on the incorrect date, that is 5 October 2005, one day ahead of the scheduled hearing date.
One would normally expect as a matter of logic for Counsel or his instructing Solicitor to at least then, upon discovering that Counsel had attended on the wrong day, to make further inquiries as to the listing of the matter. At the very least, one would expect that the Solicitor would check her file to determine the correct hearing date and make appropriate arrangements for Counsel to attend on the scheduled hearing date.
There is simply no evidence before the Court offered for and on behalf of the Applicant, to explain this significant omission from the material. No further affidavit material has been provided by Counsel to explain whether Counsel did or did not attend Court as apparently briefed for 5 October 2005. No attempt has been made by the Solicitor to explain what action, if any, was taken upon becoming aware, if indeed she did become aware that Counsel had been incorrectly briefed to attend the Court the day before the scheduled hearing date.
It will be clear from the extract from the transcript, that the Court identified a number of obvious inadequacies in the material then relied upon by the Applicant's Solicitor. It is not the responsibility of the Court to exhaustively indicate the matters to be further included in other material to be relied upon by an Applicant. It is not for the Court to effectively seek to draft affidavits for and on behalf of the Applicants, who are represented by both a Solicitor and Counsel.
Regrettably, both Counsel appearing before the Court when the matter was further adjourned to enable the Applicant to provide further material had not appeared on 28 October 2005. Hence, the Court during the course of the hearing referred to extracts from the transcript now set out in this judgment in order to assist Counsel who now appear in making further submissions. Counsel now retained for the Applicant sought to further rely upon the second affidavit.
In the second affidavit, after reciting matters which had already been referred to in the first affidavit, the Solicitor then provided some further material as to what happened on 6 October 2005, after she had received a message from the Respondent's Solicitors. The deponent states:-
“…
(6) At the time I contacted Counsel he was not in his Chambers, but agreed to attend court.
(7) After I contacted Counsel, I also telephoned the Respondent's Solicitor at her office to inform her about the situation, but she was not available.
(8) I did not contact the Court as I genuinely believed that Counsel would be present in Court at the scheduled time to represent the Applicant.
(9) I contacted Counsel to discuss the outcome of the case and was advised that he was locked out of his Chambers and had to wait for a locksmith to arrive in order to obtain the Brief. Had I known this fact before I certainly would have attempted to contact the Court and inform them of the unfortunate situation.
(10) I was advised by Counsel when he finally arrived in court the matter had been dismissed.
(11) Since the discovery of the human error I have done all in my power to rectify the mistake in this matter. I truly believe that when I contacted Counsel, and that he had agreed to be at Court for the Application, the matter had been taken care.
…” [sic]
Again, I have set out the extracts from the affidavit as they appear together with obvious errors. I am bound to indicate that the affidavit material still appears to be hopelessly inadequate. It has not been the subject of any corroboration by Counsel and nor has there been any attempt to provide any affidavit material from the Applicant himself.

I am prepared however, to assume in the present case that the Applicant has relied upon the Solicitor and Counsel acting on the Applicant's behalf to present the case to this Court, which inevitably will refer to legal submissions at least in relation to the substantive application.
However, at the very least, one would have thought that in a case of this kind, a short affidavit would have been provided by the Applicant confirming that the Applicant at all times has relied upon Solicitors and/or Counsel to attend Court and present submissions on behalf of the Applicant. As indicated, there is no corroborating affidavit from Counsel, but rather a reference to what the Solicitor had been told had happened to Counsel on the scheduled date of hearing. No indication is given in the affidavit material as to the times of attendances by the Solicitor, and perhaps significantly there is simply no indication in the affidavit material that the Solicitor for the Applicant has made any or any adequate attempt to contact the Court to advise the Court of the difficulties encountered by Counsel for the Applicant.
There are further inadequacies in the affidavit material which are obvious. It is clear that both the first and second affidavit, do not in any way seek to address the issue of discussions which one would reasonably expect to have taken place on and from the date when Counsel wrongly appeared on the day before the scheduled hearing date.
The Court is concerned in applications of this kind, to consider whether there is a reasonable explanation for the non-attendance of the Applicant. The Court is also mindful of the fact, that in circumstances where an Applicant relies upon Solicitors, then the negligence or misconduct of those Solicitors and/or Counsel should not of itself necessarily preclude an Applicant from establishing that the Applicant has a reasonable explanation for non-attendance.
In matters of this kind it is at least appropriate to look beyond the conduct of the lawyers and give to an Applicant who is represented some benefit which may arise from what can only be described in this case as apparent misconduct and/or negligence of the lawyers concerned, in failing to attend Court on the scheduled hearing date on behalf of the Applicant.
Clearly, the Court has a discretion to consider the explanation for an Applicant's failure to apply at the final hearing. I accept the authorities referred to by the Respondent, and in particular the decision of the Supreme Court of Victoria in the matter of Kostokanellis v Allen (1974) VR 596, which may have some application in the present case. Although in that case, the Court was considering a judgment in default in the County Court, the principles referred to in that decision, dealing as it did with the failure of the defendant in that case to appear, as being relevant to the circumstances of this case.
It is noteworthy, that the Full Court in that case in considering the issue of the non-attendance of a party states the following:-
“What then of the explanation for his non-appearance before Judge Byrne? Mr Merkel summarized his argument on this point by saying first that the appellant was not personally to blame for the fact that he was not represented at the hearing and that he ought not to be made responsible for the decision which his solicitor made. Secondly, it was argued that, even if as a general rule the client is to be held answerable for the default of his solicitor, the omission of the solicitors to do that which he was employed to do, namely attend at or arrange for an attendance on the return of the summons, was an omission beyond the course and scope of the retainer and so was an omission for which the appellant should not have to bear the consequences. Support for this submission was sought to be found in some observations of Lush J., in Bourke v Kecskes, [1967] V.R. 894, at p.897. Finally it was said that even if the situation were regarded as one in which the appellant should be identified with his solicitor, the conduct of the solicitor was explicable.
Mr. Smith examined the material placed before his Honour Judge Gray and made a number of trenchant criticisms of it with a view to showing that the appellant himself was at least in some measure responsible for the summons before Judge Byrne being undefended. It is true that the material is not as clear as it could have been, but we consider that Mr. Merkel’s submission that the appellant was not personally responsible for his non-appearance at the hearing is made out. We take the view that the appellant did not know that the summons was due to he heard on 20 February 1973, and that his presence at Ararat on that day was the result of an unfortunate lack of communication between him and his solicitor. …”
Prior to that reference, the Court had otherwise considered the general principles in the exercise of its discretion in matters of this kind and stated the following:-
“What emerges from these authorities is that under a rule such as O. 5, r. 14, what the judge is required to do is to determine what, in his opinion, is the just way in which the court’s discretion should be exercised. To do this must involve weighing up the extent to which the defendant is prejudiced by allowing the order and judgment to stand and the prejudice to the plaintiff in setting them aside. In many cases the situation will be that the plaintiff will not suffer any prejudice that cannot be remedied by an appropriate order as to costs. So far as the defendant is concerned, if he is unable to comply with r.14(b), the order and judgment cannot be set aside and there would appear to be little purpose in doing so. On the other hand, if the defendant does show on affidavit a prima facie defence on the merits it would seem that usually he will be seriously prejudiced if he is debarred from being able to present his defence at a trial of the action. One cannot tell until this has been done whether or not the defendant will succeed in such a defence. While it is undoubtedly relevant to the judge to consider what explanation the defendant has for not appearing on the return of the summons of final judgment, the weight to be attached to his explanation will depend upon the circumstances. Thus, for example, where the explanation shows that his non-appearance was due to some mistake or to his being misled, this may well assist the court in deciding to exercise its discretion in his favour. Again, the explanation given may reflect on the question whether the defendant has made out a prima facie defence on the merits. However, it does not necessarily follow that if the explanation does not amount to something which can be characterized as a ‘sufficient reason’ the defendant’s application should fail. IT must all depend on the circumstances. …”
As a general principle, I am prepared to accept that the explanation for the Applicant's failure to attend Court on the scheduled hearing date, or as in this case the lack of an adequate or appropriate explanation is one factor the Court should take into account and further accept that inordinate weight should not be given to this factor.
In the present case, however, an assumption seems to have been made that all that was required when the matter was first adjourned was to allow the Applicant further time to provide other affidavit material to augment the then "hopelessly inadequate" material and all that was simply required was the Applicant's Solicitor to prepare a further affidavit. The assumption was not valid. It would be clear, in my view, to any Solicitor acting reasonably and having any or any proper understanding of the principles that at the very least, an affidavit should have been provided setting out further detail that was missing from the first affidavit, and also, to the extent that may be required, corroboration from Counsel and any others concerned in the process.

One would expect file notes to be produced and further, it would not be unreasonable for the Court to expect that the Applicant may also provide further affidavit material if for no other reason than to confirm the Applicant's understanding that he would not be required to attend on the scheduled date of hearing. None of that additional material was provided, and the assumption made that it did not need to be provided, in my view, is invalid.
Whilst the inadequate explanation for the non-attendance of the Applicant is only one factor for the Court to take into account, it seems to me that in a case of this kind, having regard to the material relied upon, the Court should be reluctant to allow this application to set aside the Order made in the absence of the Applicant.
However, again, out of an abundance of caution and assuming that the Applicant has sought to rely upon the Lawyers then acting for and on his behalf, I am prepared to simply conclude that in this case there has been an inadequate explanation provided to the Court, though I further conclude that the reason for non-attendance on the scheduled date of hearing was due to the error on the part of the instructing Solicitor and/or possibly Counsel briefed. I am prepared to draw that conclusion on the affidavit material currently before the Court, though I cannot avoid expressing the Court's discomfort, given the circumstances, that in this instance, somewhat unusually, Counsel have been briefed to appear the day before the scheduled hearing, and not some time after the scheduled hearing.
I find it incredible that in a case of this kind, that neither Counsel nor the Solicitor acting in accordance with their proper duty, would fail to either attend on 6 October 2005 or make alternative arrangements to ensure attendance on that date, or at the very least, notify the Court of the difficulties being experienced by either the Solicitor or Counsel.
However, out of an abundance of caution and in circumstances where I do not wish to unduly prejudice the Applicant who has had the misfortune to engage Lawyers who conducted themselves in this manner on this occasion, I am prepared to further consider the issue in any event as to whether or not there is indeed an arguable case.
Counsel now acting for the Applicant who is different to the Counsel acting on the previous occasion had provided the Court with an outline of argument. Reliance was placed upon the grounds sought to be argued in the Applicant's amended application, which had been filed in Court on 19 October 2004. However, specific reference and emphasis was placed upon what is argued to be a denial of natural justice in this case where the particulars are claimed to be that the Applicant was not given an opportunity to respond to suggestion/finding with providing further information/submissions regarding the subjective fear, and in particular that the Tribunal failed to provide an opportunity to the Applicant to make submissions on its view of the Applicant's role as a Youth Club President.
To understand that submission based upon one of the grounds set out in the amended application, it is necessary to refer briefly to the background of this application. The Applicant is a male citizen of Sri Lanka who had arrived in Australia on 20 October 1998, on a business visa valid until 20 January 1999. On 30 January 1998, the Applicant lodged a protection visa application. That application was refused by a delegate of the First Respondent on 3 February 1999. The Applicant then sought review of the decision by the Tribunal in an application dated 25 February 1999.
As indicated earlier, the decision of the Tribunal in this case dated 15 February 2001, affirmed the delegate's decision to refuse a protection visa. The Tribunal decision would appear to have been handed down on 2 March 2001. The Applicant then filed, as indicated earlier in the judgment, the application in the High Court of Australia seeking an Order Nisi in relation to the decision of the Tribunal on 17 February 2004.
The amended application, apart from referring to the issue pressed at this hearing, otherwise refers to what are claimed to be jurisdictional errors and failure to consider the Applicant’s express claim that he was at risk of persecution because of his membership to a particular social group, namely a political party, United National Party (“the UNP”). Reference is made to relevant material submitted by the Applicant claimed to have been ignored. It is claimed the Applicant was denied natural justice on the grounds set out earlier in this decision and otherwise a ground relied upon appears to be that the decision was "so unreasonable that no reasonable decision-making would have made it". Further reference is made to the Tribunal’s failure to review and consider the application for the purpose of ss.47, 65 and 414 of the Migration Act 1958 (“the Act”).
The Tribunal decision in this matter appears to recite in some detail the claims made by the Applicant. Those claims were made by the Applicant, then a 37 year old businessman who had lived just out of Colombo. The claims were set out in a statement provided in support of the application which included a claim by the Applicant that his father was an active member of the UNP and the Applicant was appointed President of the Youth Council of the UNP in 1985 and was an active party member in the particular electorate.
Reference was made to the Applicant’s activities in the political party referred to and, in particular, his association with a then Minister of the Party. Further reference was made to the Applicant and his family being long supporters of the UNP, which he claimed he had joined in 1984 whilst still at school.
It is useful to note the Tribunal's decision where it refers to the history of the claim made by the Applicant:-
“ …
He said that three months after joining he had been elected President of the Local UNP Youth League, something which was assisted by the affluence of his family. I asked the applicant how long he remained President of the Youth League and he said that he still held the position and had been re-elected to it every two years, the last time in 1997. I found this surprising given the applicant is now thirty-seven and he explained that one did not need to be a young person to have such a role in the Youth League
...
I said to the applicant that I found it difficult to accept that he had meaningful and active role in the UNP given that he lived here and he responded by telling me that a person who was a Minister and another person who was a police inspector had lived outside Sri Lanka and no-one knew and that only recently the President of Sri Lanka had gone away and no-one had known. The applicant said too that at present his branch of the Party is powerless and that even if a letter comes there is no-one to respond to it.
…”
In the Tribunal decision it further refers to other claims made by the Applicant and questioning which occurred. The Tribunal states the following:
“ I asked the applicant about what he did for the Party in the thirteen or fourteen years he was President of a Youth League branch and he said he had done everything. He said that he had provided toilets for the poor, given food to the temple and clothes for the needy and that over the years he had been involved with canvassing for support from house to house, putting up party posters and decorations which involved his staff as well and supplying the timber for platforms. He paid for the staff and the timber. The applicant said these activities occurred only during election campaigns. I asked the applicant about his work for the Party between elections and he said that it involved matters such as giving people letters for jobs or for the police stating they were Party members and asking for assistance, going to functions or speaking at funerals on behalf of the Party.
I asked the applicant at the hearing what he thought the UNP could do in order to win power again. He said that the Party need to show people that it had a vision and a program and that the UNP vision was to develop the country and to lift the standard of living. He said that there is little difference between the main parties and that he had been attracted to the UNP because of his family's support for it and because his business did well when the UNP was in office. He said that the PA government does not assist business interests operated by UNP supporters and that they imposed import taxes on them and would not give UNP business people permits for things such as felling timber in the jungle. He said that the imposition of import taxes was not uniformly enforced so was used to disadvantage UNP business people.
…”
In the submissions made before this Court brought on behalf of the Applicant, it was submitted that the last paragraph referred to in the extract of the Tribunal's decision above indicated that the Tribunal proceeded to explore other issues concerning the steps to be taken by the UNP to win power and used the answers to those issues when reaching crucial findings and reasons adverse to the Applicant’s claim. In particular, it was noted that a significant finding in this matter was made by the Tribunal when it stated under the heading “Findings and Reasons” the following:-
“ …
I have concluded that the applicant had a local profile as a UNP supporter and that he knew and had Party-related and other dealings with Mr W and with Mr D. I do not accept that he had a high profile among the UN leadership in X.
…”
As I understand it, the denial of procedural fairness in this matter which is common ground, is not a privative clause decision that arose from the way in which the Tribunal used that additional material and failed to indicate to the Applicant that it would make such use of that material.
It is clear to me, that upon a proper reading of the Tribunal's decision, it has explored thoroughly by question and answer with the Applicant, critical issues to the application which included of necessity and assessment by the Tribunal of the profile of the Applicant in the UNP. For the Applicant to misunderstand or fail to appreciate that this was a key issue, in my view, cannot be sustainable. It was clearly raised by the Tribunal and any further details to be provided by the Tribunal could only go to the question of sharing with the Applicant the Tribunal's thought processes which I am satisfied, as a matter of law, it is not bound to do. I am not satisfied in the circumstances of this case that any failure to raise with the Applicant, the matters which ultimately form this conclusion would constitute a denial of procedural fairness.
The conclusions on a proper reading in this case of the Tribunal include significant and adverse findings as to the Applicant's association with the UNP. It clearly undertook a very detailed and thorough analysis of the Applicant's involvement in the activities of the Party. It ultimately concluded after referring to the Applicant's claims as to his support for the Party the following:-
“…
The evidence does not indicate that he was involved in any strategy, policy or planning activity for the UNP and his activities seem to me to be essentially local. The applicant appeared to me to have a very good understanding of the practical usefulness of Party allegiance and of the way in which political patronage can work and it seemed to me that the motivation for his interest in politics was to enhance his capacity to do business. I can understand that the UNP and the PA may look just the same, as he said they were, but I consider that there are policy differences which a person who canvassed for support for the UNP might have known.
…”
The Tribunal otherwise considers the association claimed by the Applicant with the Minister, referred to in the material, and then reaches a conclusion about the Applicant’s local profile.
In my view, even if there could be some argument the Tribunal should have raised its thought processes with the Applicant ultimately leading to an adverse conclusion, it otherwise reached that conclusion in any event independently of the specific matter raised in the extract referred to earlier in this judgment from the Tribunal's decision concerning the response to what the Applicant thought the UNP could do in order to win power again.
In my view, there is no arguable case based upon this ground sought to be pursued or pressed before this Court which would justify setting aside the Order made in the absence of the Applicant.
Counsel now appearing for the Applicant properly did not press other arguments before the Court this day. Those other arguments seem to me to be properly characterised by the Respondent as effectively arguments which choose to cavil with the fact finding of the Tribunal or failure to give the emphasis the Applicant may have preferred in relation to certain other material either provided by the Applicant or indeed available to the Tribunal, including country information.
I am not satisfied in this case that there is any material before the Court which would satisfy this Court that this is a decision that was so unreasonable that no reasonable decision-maker would have made it, even if I were satisfied that that in itself can properly form a basis for judicial review in an application of this kind. I do not see any basis upon which the Court can conclude that there has been a failure to comply with the provisions of the Act, otherwise referred to in the amended application.
The Tribunal in this case, essentially was entitled to consider the claims placed before it by the Applicant. It ultimately made significant adverse findings in relation to the Applicant's profile with the UNP. I accept as submitted by the Respondent that in this instance there is no obligation on the Tribunal to put to the visa Applicant the subjective process of reasoning in relation to the material before it and nor is the Tribunal bound to tell an Applicant that it does not accept any particular claim.
In any event, the brief references to the exchanges set out earlier in this judgment clearly indicate the Tribunal has given the Applicant a proper opportunity to deal with issues of some concern and has done so in a clear and effective manner.
The conclusions reached by the Tribunal, in my view, are conclusions reasonably open to it and are free of any error and certainly do not reveal any denial of procedural fairness. I do not see in this case any information in the material which would satisfy this Court that it is information of a type which would attract the attention or operation of s.424A of the Act.
What has occurred in this instance is that the Applicant has made certain claims and those claims have been explored. The Applicant has provided other information which again has been further explored and indeed, specifically in relation to the concerns about the use of other material, it appears clear to me, that the Tribunal has given the Applicant every opportunity to provide appropriate material in support of his claim.
I am not satisfied that any material has been adequately identified which would otherwise support any suggestion of a failure on the part of the Tribunal to ignore relevant material.
In the circumstances, having regard to the Applicant's amended application and in particular the specific matters now pressed before this Court in support of the application to set aside the Order made in the absence of the Applicant, I conclude that in this instance there is indeed no arguable case.
On that basis alone I am satisfied, in the exercise of the Court's discretion that the application to set aside the Order made on 6 October 2005 should be refused.
In making that decision, I am mindful of the authorities which clearly indicate that it is a significant step to take in effectively dismissing the substantive application of an Applicant. However, Counsel appearing in support of the application to set aside the Order made in the absence of the Applicant has by written and oral submissions, pursued in some detail the arguments which, in any event, would otherwise be pursued on the substantive application.
As indicated however, on the material before me, I conclude that there is indeed no arguable case. It follows, therefore, that the application filed on 7 October 2005 seeking to set aside the Order of the Court made on 6 October 2005 should be dismissed with costs. I shall hear submissions in relation to the issue of costs of and incidental to this application, as clearly there may well be circumstances in this instance where the Court will consider the exercise of the discretion it has to make an order for costs against the legal representatives of the Applicant.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of McInnis FM

Deputy Associate:

Date: 20 December 2005