NAEE v Minister for Immigration - [2003] FMCA 105

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAEE & ANOR v MINISTER FOR IMMIGRATION

[2003] FMCA 105

MIGRATION – Review of Refugee Tribunal decision affirming a delegate’s refusal of a protection visa – whether the RRT failed to make a necessary finding – whether the RRT breached the rules of procedural fairness – failure to disclose country information – whether s.424A of the Migration Act 1958 (Cth) excludes the common law rules of procedural fairness – failure to consider whether the principal applicant would engage in political activity in Burma – RRT decision a nullity.

COSTS – Reduction in costs award where the applicants fail on all issues raised by them but are successful overall.

Migration Act 1958 (Cth), ss.52, 57, 63, 424A

Minister for Immigration; ex parte A (2002) 185 ALR 489
Minister for Immigration; ex parte Miah [2001] HCA 22; 179 ALR 238
Minister for Immigration v Islam [2001] FCA 1681
Minister for Immigration v Yusuf (2001) 180 ALR 1
Sellamuthu v Minister for Immigration [1999] 90 FCA 287
SGJB v Minister for Immigration [2002] FCA 1601
WAAJ v Minister for Immigration [2002] FCAFC 409
WAFV v RRT [2003] FCA 16

First Applicant:

Second Applicant:

NAEE

NAEF

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1274 of 2002

Delivered on:

26 March 2003

Delivered at:

Sydney

Hearing date:

26 March 2003

Judgment of:

Driver FM

REPRESENTATION

Counsel for the Applicant:

Mr N Poynder

Counsel for the Respondent:

Mr J Smith

Solicitors for the Respondent:

Sparke Helmore

THE COURT DECLARES THAT

The decision of the Refugee Review Tribunal made on 1 October 2002 is invalid and of no effect.

THE COURT ORDERS THAT

The Minister is prohibited from acting in reliance upon the decision of the Tribunal.
The decision of the Tribunal is set aside.
The matter is remitted to the Tribunal for redetermination according to law.
The Minister is to pay the applicant’s costs and disbursements of and incidental to the application, fixed at $1,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1274 of 2002

NAEE

First Applicant

NAEF

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction and background

This ex tempore judgment relates to a decision of the Refugee Review Tribunal (“the RRT”) made on 1 October 2002 and handed down on 24 October 2002. The RRT affirmed a decision of the delegate of the respondent Minister not to grant to the applicants protection visas. There are two applicants, a husband and a wife. All of the claims in relation to a claim for a protection visa were made by the principal applicant, the husband, and the outcome of the wife's application was determined by the outcome of the husband's application.
The relevant background facts appear in written submissions prepared on behalf of the applicants by Mr Poynder filed on 21 March 2003. Applicant NAEE, the husband, is a citizen of Burma. He and the second named applicant arrived in Australia on 2 August 1998. On 15 September 1998 they lodged an application for a protection visa. The application was refused by the respondent's delegate on 10 February 1999. On 24 February 1999 the applicants lodged an application for review of that the decision by the RRT. On 10 August 2000 the RRT conducted a hearing into the application.
There was a delay of more than two years before the RRT handed down its decision, during which time there was no communication from the RRT to the applicants. In its decision dated 1 October 2002 and handed down on 24 October 2002 the RRT affirmed the delegate's refusal of a protection visa.
In general terms, the first applicant claimed that he was at risk of persecution in Burma because of his long standing opposition to the military government of Burma. His claims consisted of his involvement in political protest activities surrounding the funeral of former UN Secretary General U Thant in 1974, his contact in the mid 1970s with an army officer, who was later executed for his part in an attempted coup against the military government, and his support for the opposition of National League for Democracy (“NLD”) led by Aung San Suu Kyi, since leaving Burma in 1975.
Significantly, the first applicant has not returned to Burma since he left that country in 1975. Since then he has lived in several countries in South Asia and South-East Asia before coming to Australia.
The first applicant also referred to his involvement in a demonstration against the then Burmese dictator, General Ne Win, while in India in 1980; his involvements in demonstrations in Malaysia in 1988; his support for Burmese student activists hiding along the Thai-Burma border in 1992; his conduct in meeting actors and the director of the film “Beyond Rangoon” in 1994, including holding conversations with a Burmese democracy campaigner from the United States and giving information to Burmese army officers about army corruption; his association with various Burmese opposition groups outside Burma; his participation in various public meetings, fund raising dinners and demonstrations and support of Burmese opposition groups in Australia.
The RRT made findings on most or all of these claims. In large part the findings by the RRT are not the subject of complaint in these proceedings. In an amended application filed in court this morning the applicants contest the decision of the RRT on two bases. The applicants submit that the RRT exceeded its jurisdiction in making the decision to affirm the respondent's decision not to grant them a protection visa and otherwise erred in law in arriving at that decision. The particulars given are these:
(1)The RRT failed to make a finding in relation to the first named applicant's claim to have spear headed an anti-Burmese military government campaign in Malaysia as a result of which he had difficulties in having his visa to remain in Malaysia renewed.
(2)The RRT failed to accord procedural fairness to the applicants in that it failed to provide the applicants with an opportunity to consider and comment upon material supporting its finding that there had been a significant change in the political climate with the release from house arrest of the NLD leader Aung San Suu Kyi in May 2002.
The written submissions filed on 21 March 2003 on behalf of the applicants and the respondent's written submissions filed on 24 March 2003 deal with these two attacks upon the RRT decision. In addition, both Mr Poynder and Mr Smith, for the respondent, made oral submissions before me this morning.

Consideration and findings

In relation to the first ground of challenge, that the RRT failed to make a material finding in response to part of the applicants’ claims, it is necessary to consider what was the relevant claim. Claims initially made by the applicants in their application for a protection visa are set out in the court book commencing at page 40 and extending through to page 47. Relevantly, the applicants make claims at paragraph 23 of that application concerning the first applicant’s activities outside of Burma in support of the pro-democracy movement and in opposition to the military government of Burma.
Secondly, the applicants, in their application for review to the RRT, appearing in the court book from page 80 and in particular at page 83, dealt with what the first applicant describes as the aftermath of the Penang visit in 1994. That was a reference to the movie “Beyond Rangoon”. In that section of the application the first applicant said this:
Soon after our return, I spearheaded an anti-Burmese military government campaign by organising the Burmese community in Malaysia, comprising mostly doctors and engineers in Sabah and Sarawak (East Malaysia) and several doctors, other professionals, many migrant workers, in Peninsula or West Malaysia. I disseminated information through word of mouth and distributed leaflets and [Aung San Suu Kyi] postcards, inciting all expatriate Burmese by slogans and messages to get strong and united to demand for immediate release of [Aung San Suu Kyi], to fight for the cause of restoration of democracy, to stop human rights abuses in Burma, and down with SLORC, etcetera.
Mr Poynder, in his submissions, says that there was a failure on the part of the RRT to deal with this claim made by the first applicant and that the failure of the RRT constitutes an error of law going to jurisdiction in the light of Minister for Immigration v Yusuf (2001) 180 ALR 1. In reply, Mr Smith submits that in fact the claim was dealt with. Mr Smith took me to the decision of the RRT (court book, page 109), and in particular, to the discussion of the applicant's claims (court book, page 113) and the findings and reasons of the RRT (court book, page 115) especially in the first full paragraph of page 116 of the court book.
At page 113 of the court book, the presiding member set out in summary form the first applicant's claims. At point 3, the presiding member referred to a claim by the first applicant to have been associated with various Burmese opposition groups outside Burma. In the findings and reasons for decision in the first full paragraph of page 116, the presiding member said:
I am prepared to accept that the applicant had been engaged in the Burmese expatriate political, social and cultural events that he names during his years away from Burma, before coming to Australia. This would be the natural inclination of people gathering with their ilk in foreign places. I am not satisfied that the applicant faces persecution over his actions because they did not appear to be particularly controversial.
Mr Smith submits that the presiding member sufficiently identified the claim made by the first applicant at page 113 and, more importantly, dealt with it, albeit in a general way, in the quotation that I have just read from page 116. In addition, Mr Smith submits that there was an ultimate finding in relation to this aspect of the first applicant's claims on page 122 of the court book, where the presiding member found:
I am not satisfied that his [that is the first applicant's] activities abroad would cause him to be harmed for convention reasons on return to Burma.
The finding made by the presiding member that I read from the first full paragraph at page 116 is not as clear as it might be. It is not the first finding made by the presiding member in relation to the first applicant's claims. On the preceding page the presiding member dealt with claims made by the first applicant about his activities in Burma and in relation to the 1976 attempted coup against the then Burmese government. I think it would be wrong in those circumstances to dismiss the paragraph on page 116 as a simple introduction to what follows. It may be an introduction to the specific findings which follow on pages 116 and 117 but, in my view, that would not be an adequate analysis of the paragraph. All of the following findings relate to specific claims that the presiding member was not satisfied about.
In my view, the purpose of the paragraph on page 116 is to deal with claims that the first applicant had made about his activities outside Burma since 1975 which had not otherwise been specifically dealt with, and which were accepted by the presiding member as genuine activities. The decision in relation to those claims by the presiding member was that the first applicant had done what he alleged, but that his actions were not particularly controversial and, as ultimately found by the presiding member, those actions could not support a claim of a well-founded fear of persecution because the first applicant was unlikely to be harmed for a Convention reason should he return to Burma by reason of those activities.
The expression used by the presiding member in this paragraph is somewhat loose. His reference to “events” is somewhat obscure. In addition, the sentence, "I am not satisfied that the applicant faces persecution over his actions because they do not appear to be particularly controversial" is ambiguous. It could be that the presiding member was expressing a personal view about whether the activities were controversial or not. Clearly, in my view, what the presiding member should have been assessing was whether the activities would be viewed as controversial within Burma by the Burmese authorities. Mr Smith pressed on me that that was what the presiding member was intending to say.
While the statement is ambiguous and the presiding member did not express himself as clearly as he could have, it is not a legitimate approach to the review of a tribunal decision to scour the reasons for the decision with a fine tooth comb, attempting to fix upon unfortunate manners of expression. In my view, the presiding member was, in the paragraph at the top of page 116, intending to deal, among other things, with the claim made by the first applicant appearing at page 83 of the court book. I find, therefore, that there was no failure by the RRT to deal with this aspect of the first applicant's claim. Furthermore, I find no other error of law in the manner in which the presiding member dealt with the claim at that point.
The second ground of review raised in the amended application is that there was a breach of procedural fairness in that the RRT failed to give the applicants an opportunity to comment upon country information relied upon by the presiding member which came to light after the hearing before the RRT and before its decision was given (court book, pages 118-119). The presiding member referred to country information in 2002 concerning the release from detention of Aung San Suu Kyi in May 2002. The presiding member placed significance on this country information as apparently indicating some liberalisation in the repressive regime in Burma after the release of the democratic leader.
After referring to the country information the presiding member said at page 119 of the court book:
The Tribunal accepts the process of brining democracy to Burma will be slow, particularly with the personal dynamics between Aung San Suu Kyi and the Burmese Junta. However, the country information above shows that the NLD in Burma is throbbing with activity, and I am not satisfied that a person of the applicant's political profile would be persecuted for supporting the NLD. I accept that the Burmese Junta has sought to marginalise opposition, that human rights abuses occur in Burma, and that the NLD is, after all, still not able to enjoy its rightful election victory of 1990. Notwithstanding these matters I am not satisfied that the applicant faces a real chance of persecution in Burma over an expression of pro-NLD opinion.
Two issues are relevant to the consideration of this ground of review. The first is whether under the general law there was a breach of procedural fairness in that it is common ground that the 2002 country information relied on by the RRT was not disclosed to the applicants, and the applicants were not given an opportunity to comment on it. The second issue is whether, even if there would be a breach of procedural fairness under the general law, s.424A(3) of the Migration Act 1958 (Cth) (“the Migration Act”) relieves the RRT from any obligation to disclose that country information.
Mr Poynder relied on the decision of the High Court in Minister for Immigration; ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 on the general issue. In that case the High Court was dealing with ss.52 to 63 of the Migration Act and in particular, s.57. The High Court held in that case that there was no intention in those sections to exclude the operation of common law rules of procedural fairness which required that an applicant be given an opportunity to comment on material adverse to his claim. There is nothing particularly controversial in the general principle. Apart from the decision in Miah the general principle was referred to by His Honour Kirby J in Re Minister for Immigration; ex parte A (2002) 185 ALR 489 at 498 where His Honour says:
In Australia it is a basic principle of the common law rules of natural justice that a person whose interests are likely to be affected by an exercise of power will be afforded a fair opportunity to respond to information or relevant material adverse to that person's interests which the repository of the power proposes to take into account in deciding upon its exercise. In short, a person should ordinarily be afforded the opportunity to provide evidence or material to rebut information or material tendered against the person's interests. As well, a person should be afforded the opportunity of persuading the decision maker by oral or written submissions as to the significance of the adverse evidence or material and the way in which it might be reconciled with the person's claim.
In this case it is apparent that the country information was accessed by the RRT well after the hearing at which the first applicant appeared. It is also clear that the country information was material to the outcome of the decision in the RRT, although the decision of the RRT did not depend exclusively upon it. The RRT made a number of findings, including findings on credibility, in relation to a number of the applicant's claims. Those findings are not in contest.
However, it is in my view clear from a fair reading of the RRT decision that the 2002 country information influenced the presiding member in finding that there had been a political improvement in Burma following the release of Aung San Suu Kyi which lessened the chances that the first applicant would be subject to persecution by the military Junta ruling Burma should he return there. The material was clearly adverse to the first applicant's interests and, consistently with ordinary common law principles, in my view, the applicants should have been given the opportunity to comment upon that material.
Mr Smith submits to me that in fact the first applicant did have an opportunity. He submits that the information concerning the release of Aung San Suu Kyi was a matter of public knowledge. The first applicant had been active in political life relating to Burmese affairs over a lengthy period including during his time in Australia. The first applicant gave oral evidence and admitted, under cross-examination from Mr Smith, that he was well aware of the release of Aung Sun Suu Kyi from house arrest in May 2002.
In these circumstances, Mr Smith submits that the first applicant could have made submissions on the information to the RRT should he have wished to. There are, in my view, several answers to that submission. The first is that the applicants were not represented at the RRT hearing and subsequently, although they were represented by a migration agent prior to the RRT hearing. In my view, decision makers, including administrative decision makers, have a higher obligation to self‑represented litigants than to litigants represented by professional advisers who are aware of an entitlement of applicants to make further submissions.
Secondly, while the first applicant was aware of the information relating to the release of Aung San Suu Kyi, he was not aware, nor could he be aware, of what (if any) use the RRT might make of it. The first applicant had made claims relating to political activity outside Burma in which he and others agitated for the release of Aung San Suu Kyi. The first applicant may have concluded that there was no point in making submissions about the impact of the release of Aung San Suu Kyi on the claims based on that activity because, Aung San Suu Kyi having been released from house arrest, it was objectively unlikely that persons agitating for that release would be persecuted solely be reason of that activity if they returned to Burma.
The first applicant was asked in the witness box by Mr Poynder what he would have done if he had been given the opportunity to make submissions to the RRT on the country information. He responded that he would have pointed out that the release of Aung San Suu Kyi was the release of a figurehead in order to relieve international pressure on the leaders of the SLORC Junta. He would have submitted to the RRT that the release of Aung San Suu Kyi did not carry any implication for the easing of pressure on ordinary grass roots democratic supporters and, indeed, there had been arrests of agitators following the release of Aung San Suu Kyi.

As it turns out, it was the more general implications of the release of Aung San Suu Kyi for the political liberalisation of Burma, that the presiding member fixed upon in his reasons for decision, but the first applicant could not have had any fore-knowledge of the way in which the information would be used by the presiding member. In my view, an applicant should not be expected to guess what the RRT might make of information and, indeed, to guess what information might be used. To put that sort of requirement upon an applicant would be to compel an applicant to potentially make submissions to the RRT that would simply lead the RRT down a train of inquiry that the RRT might otherwise not have made and which might be adverse to the applicant's interests.
In my view, there was a breach of the principles of procedural fairness under the general law in the failure by the RRT to disclose the country information relating to the release of Aung San Suu Kyi to the applicants and to invite submissions, prior to the making of the RRT decision. However, Mr Smith then submits that s.424A(3) of the Migration Act relieves the RRT of any obligation of disclosure. Section 424A(1) provides as follows:
Subject to subsection (3) a tribunal must:
(a)give to the applicant in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review; and
(b)ensure as far as reasonably practicable that the applicant understands why it is relevant to the Review; and
(c) invite the applicant to comment upon it.
Subsection (2) deals with the manner in which the information must be provided. Subsection (3) provides:
This section does not apply to information that:
(a) is not specifically about the applicant or another person and is just about a class of persons of which the applicant or another person is a member; or
(a) that the applicant gave for the purpose of the application; or
(b) that is non-disclosable information.
It is common ground in these proceedings that the country information relating to Aung San Suu Kyi is captured by s.424A(3)(a). Clearly, the section relieves the RRT of any statutory obligation to provide that country information to the applicant. It is also common ground that the section was applicable at the time of the application to the RRT in 1999.
Mr Poynder, however, submits that s.424A does not exclude the operation of the common law. First, he refers to the decision of the High Court in Miah relating to s.57 of the Migration Act. Secondly, and perhaps more significantly, he took me to single judge decisions of the Federal Court, the first being SGJB v Minister for Immigration [2002] FCA 1601 and the second being WAFV v RRT [2003] FCA 16. In both of those decisions, single judges of the Federal Court found that s.424A of the Migration Act does not exclude the common law rules of procedural fairness.
However, as was admitted by Mr Poynder and as was pointed out by Mr Smith, for the Minister, the Full Federal Court in WAAJ v Minister for Immigration [2002] FCAFC 409 has also dealt with this question. In that case, the Full Federal Court at paragraph 36, said this:
Although the notified new ground of appeal made no reference to procedural fairness, this was mentioned during argument. Prior to 2 October 2001, breach of the rules of natural justice was not a ground of review available in this Court - see section 476(2)(a) of the Act - although it was available in the High Court of Australia: see re Minister for Multicultural Affairs; ex parte Miah [2001] HCA 238; 179 ALR 238. However, s.424A was not in the Act when the Miah delegate's decision was made. All members of the High Court Bench in Miah pointed out that the common law rules about natural justice could be excluded by a manifestation of the legislative intention to that effect, including by the making of a statutory regime to cover the relevant factual situation: see per Gleeson CJ, Hayne J, at [35], per Gaudron J at [90], per McHugh J at [141 to 143], per Kirby J at [178]. As it seems to us, section 424A must be treated as an exhaustive statement of the Tribunal's obligation to bring information to the attention of a visa applicant overriding any wider common law obligation.
Mr Poynder submitted to me that this finding by the Full Court was not a finding, but simply an obiter dictum. Mr Smith countered that the issue having been raised during the trial of the matter and an express finding having been made on it, it is authority binding me.
I accept Mr Smith's submission. I am bound by the decision in WAAJ v Minister for Immigration. I note that in that decision there was no reference to obiter dicta comments made by His Honour Kirby J in Applicant A, which support the single judge decisions in SGJB and WAFV and it may be that the issue will be litigated further in the Federal Court or in the High Court. However, on the present state of authorities, I must follow the decision of the Full Federal Court. Accordingly, I find that s.424A(3) over-rode the common law obligation on the RRT to disclose the country information concerning Aung San Suu Kyi to the applicants.
That takes care of the two issues raised by the applicants in the amended application. During the course of argument this morning, I raised an additional issue and invited submissions on it from both counsel. Neither counsel wished to make any submissions. The issue that I raised was whether the RRT made an error of law going to jurisdiction in failing to deal with the question of what, if any, political activity the first applicant might engage in should he return to Burma.
I raised the issue for the following reasons. It is apparent from the country information in the court book and also general knowledge that Burma is ruled by a military dictatorship and a ruthless and corrupt one at that. This applicant has been out of the country since 1975. During that time he has, on any view, been active in political activity relating to Burma. He has engaged in that political activity in democratic countries in South Asia, South East Asia and Australia. It would be a false assumption to think that the first applicant would simply cease all political activity should he return to Burma.
Country information available to the RRT at the time of the RRT hearing included a country information report from the Australian Department of Foreign Affairs and Trade, dated 28 January 2000 (court book, pages 126-127). Relevantly, that report states:
Burma continues to have a pervasive security apparatus which intrudes generally on all civilian life. To that extent all persons outside the senior military face a level of discrimination, for example, in access to services, health, education, travel, etcetera. All persons are required to report to the local authority when staying overnight in other than their permanent residence, even for example, if only one night visiting relatives. While this requirement is often ignored, the extent of monitoring, reporting and “dobbing” would make it extremely difficult to be able to continually avoid the attention of authorities.
Activists from the period of the 1988 pro-democracy uprising would be treated no differently from the broader population nor face persecution or discrimination today unless…they have continued to be and are known to be still actively working in opposition to the government. Even then the level of activity would be taken into account.
Registered political party members will face greater surveillance than the general population. However, short of being members of parliament; ringleaders of attempted demonstrations or involved in the publication and/or distribution of anti-government materials, they are unlikely to face any greater harassment or discrimination than the general public. In the last two years for example, political detentions and imprisonments for the most part have been limited to parliamentarians elect associated with calls by the NLD for the establishment of the committee representing the parliament; ringleaders and activists of student demonstrations in August 1998; ringleaders calling for demonstrations in September 1999 and some publishers of anti-government materials.
That document, in my view, makes clear that when dealing with a political activist returning to Burma (even a low level one such as the first applicant), it is necessary to consider whether the activist would continue with that activity in Burma and what the extent of that activity would be. The assessed extent of that activity would logically determine a finding on whether or not the first visa applicant had a well-founded fear of persecution.
In this regard, it seems to me that the inquiry conducted by the RRT was incomplete. In response to questions from me in the witness box, the first applicant told me that he did not provide any information to the RRT about what he might do by way of political activity if he returned to Burma. Neither was he asked any questions by the presiding member. The decision of the RRT deals with the risk of persecution faced by the first applicant should he return to Burma, but the findings made by the RRT are informed exclusively by what was submitted by the first applicant about his activities in Burma up to 1975 and his activities outside of Burma after 1975. The RRT, having made no inquiry about what the first applicant would do by way of political activity should he return to Burma, was uninformed on that vital question.
There is an issue of the extent to which an administrative decision maker is required to make inquiries about matters that are not advanced by an applicant. The authorities are mixed: Sellamuthu v Minister for Immigration [1999] 90 FCA 287 at 292; Minister for Immigration v Islam [2001] FCA 1681. It is relevant in that regard that these applicants were not represented by a migration agent or lawyer at the RRT hearing. The first applicant represented himself and his wife. In those circumstances, certainly in relation to legal proceedings, it is well settled that decision makers are under some obligation to extend the range of inquiry beyond the submissions made by the individual. In my view, in relation to the inquisitorial proceedings conducted by the RRT, where there is an obvious issue confronting the decision maker on the basis of material before the decision maker, there is an obligation to make some inquiry of the applicant in order to obtain a properly informed decision.
In my view, the RRT failed to make a properly and adequately informed decision by failing to make any inquiry about the political activities that would be pursued by the first applicant should he return to Burma. In my view, it was impossible to make a reliable decision on the risk of persecution faced by the first applicant, without making that further inquiry. In the circumstances, the investigation conducted and the decision made by the RRT was incomplete. The RRT overlooked a relevant consideration. The failure to make the necessary inquiry by the RRT was an error of law going to the jurisdiction of the RRT because it affected the exercise of the RRT's power: Minister for Immigration v Yusuf. In the circumstances, I find that the decision of the RRT is a nullity. It is, therefore, not a privative clause decision and is unprotected by s.474 of the Migration Act.
I will therefore grant the prerogative relief sought by the applicant.
In relation to costs, Mr Poynder has sought an order for costs on the basis that his clients have been wholly successful and the Minister unsuccessful. However, as was pointed out by Ms Rayment, for the Minister, the applicants have succeeded on an issue that was raised by me and not by the applicants. That is a relevant consideration in deciding whether to make an order for costs.
The procedure that I adopted in this case was to raise the issue from the bench during the course of trial and to invite submissions on it. In the event neither counsel elected to make any submissions. However, there was an opportunity at that point for both counsel to consider their position and if appropriate to take instructions. In my view, it remains appropriate to make a costs order based on the general principle that costs follow the event, but the amount of costs that will be ordered necessarily takes into account the fact that the applicants failed on all issues raised on their behalf. In those circumstances, it is appropriate to make a reduced costs order. I will order that the respondent pay the applicant's costs and disbursements of and incidental to the application, which I fix in the sum of $1,000.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 4 April 2003