SZEGV v Minister for Immigration - [2005] FMCA 1408

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEGV v MINISTER FOR IMMIGRATION

[2005] FMCA 1408

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – leave sought for a “McKenzie Friend” – discussion of whether appropriate in the circumstances – application dismissed.

Migration Act 1958 (Cth), ss.91X, s.424A(3)(a), 474
Judiciary Act 1903 (Cth), s.39B

McKenzie v McKenzie (1970) 3ALL ER 1034
R v Leicester City Justices; Ex parte Barrow & Anor (1991) 3 ALL ER 935
Smith v R (1987) 71 ALR 631
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
NAMW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 264
Re Minister for Immigration & Multicultural & Indigenous Affairs, Ex Parte Cassim (2000) 175 ALR 209
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982
R v Australian Broadcasting Tribunal; Ex Parte Fowler and Ors (1980) 31 ALR 565
Minister for Immigration & Ethnic Affairs v Jia [2001] HCA 17
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24

Applicant:

SZEGV

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 2647 of 2004

Delivered on:

29 September 2005

Delivered at:

Sydney

Hearing date:

31 August 2005

Judgment of:

Lloyd-Jones FM

REPRESENTATION

The applicant appeared in person, assisted by Mr Toufic Laba-Sarkis with leave.

Counsel for the Respondent:

Ms S Kaur-Bains

Solicitors for the Respondent:

Clayton Utz

ORDERS

The Refugee Review Tribunal be joined as the second respondent in these proceedings.
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2647 of 2004

SZEGV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 25 August 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 19 April 2001 and handed down on 4 May 2001, affirming the decision of the delegate of the respondent (“the delegate”) made on

31 July 2000 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks unstated relief against the decision of the Tribunal.

Background

The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZEGV”.
The applicant, who claims to be a citizen of Fiji, arrived in Australia on 2 June 2000. On 14 July 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 31 July 2000 the delegate refused to grant a protection visa and on 4 September 2000 the applicant applied to the Tribunal for a review of the delegate’s decision (Court Book pp.1-4) (“CB”).
The applicant stated he was born in June 1960 and is an indigenous Fijian Methodist. He claimed he is a mechanic by trade and before coming to Australia was employed as a trade assistant in the Ministry of Agriculture. The applicant came to Australia for his wife’s funeral, following her death while visiting Australia (CB p.19).
The applicant claimed that following the May 1999 general election in Fiji he had become concerned about the increasing wave of violence that was occurring in Fiji as a result of the changing political environment. He stated that the installation of an Indo-Fijian as Prime Minister was an insult to the nationalist Tako Lavo party, the SVT party and the indigenous Fijian race. The applicant stated he had become concerned about the intention of the Fijian Labour Party. He claimed his fear was due to the wave of violence sweeping the globe, particularly the sectarian violence in Indonesia, East Timor and the Solomon Islands in the Pacific and there appeared to be no solution to this violence which was escalating. The applicant stated that the same problems of ethnic cleansing exist in Fiji today. The land issues were reaching crisis levels and this frightened the applicant. His fears were realised when George Speight, with the backing of the army elite, stormed parliament and took the parliamentarians hostage. The applicant stated that Speight had made demands which disenfranchised most Fijians and deprived them of their human and democratic rights (CB pp.19-20).
The applicant stated he was from an ethnic Fijian family but his sister was married to an Indo Fijian which has put them at odds with their indigenous Fijian neighbours and they had experienced what the Indo-Fijians would face. He claimed their house had been disturbed and his friends were no longer speaking to him. The applicant travelled to Australia for his wife’s funeral and stated that a return to ongoing turmoil in Fiji would be a devastating experience (CB p.20).

McKenzie friend

Mr Toufic Laba-Sarkis sought leave of the Court to act as a “McKenzie friend” for the applicant. Mr Laba-Sarkis informed the Court that he migrated from Lebanon and is now an Australia citizen. He is the Managing Director of a salvage timber and recycling value added business. Mr Laba-Sarkis stated that he is an NAATI accredited interpreter in the Arabic-English medium and that he had previously practised as a migration agent until 1996. Since 2004 Mr Laba-Sarkis has assisted people on a voluntary basis in making representations to the Minister and attended Courts and Tribunals in respect of migration issues. He is a member of the Ethnic Community Council, Maronite Christian Society, Secretary of the General Council of Community of Hasroun (Charitable Association) and other committees. Mr Laba-Sarkis stated he completed academic studies in theology, philosophy and migrant education.
In McKenzie v McKenzie and R v Leicester City Justices; Ex parte Barrow & Anor the concept of “McKenzie friend” envisages permitting a lay person to attend a trial and take notes, quietly make suggestions to the litigant in person and give advice to the litigant. It is a matter of discretion of the Court as to whether it is appropriate for a “McKenzie friend” to be involved at all: Smith v R.
I appreciate the practical difficulties in which a person in the position of the applicant is confronted because he is in a strange country whose language is not familiar and whose legal system he does not understand. Nor is the applicant likely to be in a financial position to enable him to obtain legal representation or retain Counsel.

The Tribunal’s findings and reasons

Ms Kaur-Bains of Counsel, appearing for the respondent, prepared written submissions prior to the hearing which contained the following summary of the Tribunal’s decision:
a)The Tribunal accepted that the behaviour of the applicant's neighbours in making faces at him and shunning him because he had an Indian in his family, was behaviour that was distressing to the applicant but found that it did not amount to persecution within the meaning of the Convention. Further, the Tribunal found that the incident relating to damage to his home which occurred during the coup was not of sufficient seriousness as to amount to persecution. Further, the fact that the applicant’s uncle has lived in the applicant's home since he left Fiji and has not suffered any incidents of violence, suggested there was not a real chance the applicant would be a victim of violent acts from his neighbours because he has Indian friends and an Indian family member.
b)The Tribunal also noted that country information revealed that ostracism resulting from intermarriages is not a big issue and the political situation has not made any difference to the likelihood or extent of ostracism resulting from intermarriages.
c)In relation to the applicant's general fear of racial violence, the Tribunal considered more recent country information about the political and security situation in Fiji (CB pp.22-28). This information took into account information as recent as April 2001 and confirmed that the security situation in Fiji was under control. The Tribunal noted the applicant had lodged his protection visa application four weeks after the Speight led May 2000 coup, when the security and political situation in Fiji was still uncertain. The Tribunal found the situation has since changed considerably and there was no indication that Fijians are being deprived of their human and democratic rights. The Tribunal therefore found, based on that information, the applicant could return to Fiji because there was not a real chance that he will be persecuted in the reasonably foreseeable future. Therefore, the applicant’s fear of persecution was not well founded.
d)The Tribunal noted that at the oral hearing, the applicant made it clear that he did not wish to return to Fiji because he will no longer have a job, his wife was buried in Australia, he has family members in Australia and has nothing to return to in Fiji. Whilst it was sympathetic to his situation, the Tribunal nevertheless confirmed its finding that the applicant was not a refugee within the Convention.

Application for review of the Tribunal’s decision

On 25 August 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
1.Refugee Review Tribunal decision to be returned to RRT and member to act according to law.
2.Adverse materials were not tested and put to me for comment.
3.I am at risk if I return to Fiji. I lost my wife here. Further affidavit will be lodged.
Mr Laba-Sarkis, the applicant’s McKenzie friend, assisted the applicant in preparing typed submissions which were read to the Court and which I will refer to later in this decision. That document identified a further six grounds of review. Ms Kaur-Bains for the respondent sought leave that the additional grounds be treated as amendments to the original application so that each ground could be responded to in the respondent’s oral submissions. Leave was granted and the additional grounds are identified as follows:
4.I believe that the RRT misinformed itself of the particular circumstances of the applicant and incorrectly applied the test to determine the status of a refugee and had a preconceived decision regarding the application.
5.The RRT failed to ask itself:
(a)does the harm feared amount to persecution?
(b)do the circumstances of the applicant merit special consideration because of the trauma he suffered as a result of the shocking death of his wife at Sydney Airport?
(c)does the applicant’s claim link to the refugee convention?
(d)is there a real chance that his fear would be well founded should he return to Fiji?
6.In determining the applicant’s case the Tribunal paid no attention to the individual circumstances and totally relied on information in general disregarding the applicant’s perceived fear, which to the applicant was real fear.
7.The Tribunal determined that the applicant’s fear is not well founded and relied on mere speculation, independent evidence that had no bearing or direct reference to the applicant’s claim.
8.The Tribunal was aware of the shocking death of the applicant’s wife at Sydney Airport and denied the applicant procedural fairness and natural justice by not considering his personal needs.
9.The Tribunal wrongly assumed that the applicant would not suffer convention based persecution.
10.I refer to the country information which to my view may be accurate enough for the purpose of informing certain types of people but may be quite inapplicable to the life and circumstances of a particular person such as the applicant and acting on it can result in injustice and tragedy.
In addition, the written submission prepared on behalf of the applicant contained a particular in relation to ground two in the following form:
The Tribunal erred in not presenting to the applicant any evidence of the DFAT country information report which the Tribunal relied upon in forming an expressed opinion.

The Law

The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Submissions

The applicant, with the assistance of Mr Laba-Sarkis acting as a McKenzie friend, prepared a written statement that they sought to read to the Court as previously mentioned in paragraph 10 above. The statement identified a number of further issues that were grounds and leave was granted to amend the original application to incorporate the additional six grounds.
Ms S Kaur-Bains, Counsel for the respondent, filed written submissions prior to the hearing which contained contentions in respect of the first three grounds. The additional six grounds that were added from the applicant’s written submissions were responded to by Ms Kaur-Bains in her oral submissions.

Reasons

Grounds 1 and 3 of the pleadings did not identify grounds of review and were nothing more than statements made by the applicant in support of his claim. The reference to the filing of a further affidavit in Ground 3 did not occur. These grounds did not raise any issue in respect of judicial review.
In Ground 2 the applicant alleged adverse material was not put to him or tested. The applicant did not identify the adverse material he says was not put to him. Further, the applicant did not say what action he would have taken had such material been put to him. Presumably the applicant was referring to the country information referred to in the decision. The country information formed the basis of the Tribunal’s decision that the applicant, as a Fijian, did not have a well-founded fear of racial and ethnic violence in Fiji because the country information was to the effect that the situation in Fiji had changed since the May 2000 coup and there was no indication that Fijians are being deprived of their human and democratic rights. The Tribunal rejected the applicant’s claim that he was fearful because his sister married an ethnic Indian and because he has Indian friends on the basis that the harm the applicant had faced in the past arising from that claim did not amount to persecution and, based on independent country information, he was unlikely to suffer persecution in the future. In respect of the country information that relates to the applicant’s first claim, that he fears persecution because of racial and ethnic violence particularly since the May 2000 coup, I agree with and adopt the following submissions of the respondent:
a)Firstly, the country information does not need to be tested. It is a matter for the Tribunal, as the trier of fact, to accept or reject that information.
b)Secondly, the country information relied upon by the applicant was not required to be put to the applicant pursuant to s.424A of the Act because of the exclusion referred to in s.424A(3)(a) (see NAMW v Minister for Immigration & Multicultural & Indigenous Affairs at paragraphs 68-71 and 138-139).
c)Thirdly, applying the common law rules of procedural fairness and noting that section 422B does not apply to this case, the applicant was accorded natural justice. The country information which the Tribunal relied upon was available and in the public domain (see Re Minister for Immigration & Multicultural & Indigenous Affairs, Ex Parte Cassim at 214). The applicant has not given evidence that the country information was not put to him. The Tribunal noted it put to the applicant that the situation in Fiji had improved and asked the applicant about the situation in Fiji (CB p.21). The applicant said he had not heard about what was going on in Fiji. The applicant did not attempt to put any further matters to the Tribunal for its consideration after the hearing nor indicated to this Court what he would have put to the Tribunal instead.
d)Furthermore, as the decision of the High Court in Re Refugee Review Tribunal; Ex parte H, established (at [33] of the reasons):
“… in the case of a breach of the rules of natural justice, relief under s 75(5) of the Constitution is discretionary.”
e)Assuming the Tribunal fell into jurisdictional error by denying procedural fairness to the applicant, the Court should not in this case exercise the discretion to grant relief because there is nothing the applicant could have put to the Tribunal that may have led the Tribunal to find the applicant had a well-founded fear of racial and ethnic violence in Fiji. Further, the discretionary relief should be refused because of the considerable and unwarrantable delay in the applicant bringing this application (see R v Australian Broadcasting Tribunal; Ex Parte Fowler and Ors at 568.5 and 570.3). The Tribunal handed down its decision on 4 May 2001, which is over four years ago. The failure of the applicant to provide an explanation for his delay and the lack of substance in the sole ground pleaded should be taken into account.
In relation to that claim, the Tribunal’s finding appears in its decision as follows:
“At the time of the coup the applicant experienced some damage to his home. He reported the matter to the police who were investigating at the time he left Fiji. The Tribunal finds that these incidents are also not of sufficient seriousness as to amount to persecution within the meaning of the Convention.” (CB p.21)
In respect of the country information relating to the applicant’s second claim that he fears persecution because his sister married an ethnic Indian and because he has Indian friends, the Tribunal noted:
“The applicant stated that his neighbours were making faces at him and shunning him because he had an Indian in the family. The Tribunal accepts that this behaviour must be distressing to the applicant but finds that it does not amount to “some serious punishment or penalty or some significant detriment or disadvantage” so as to be persecution within the meaning of the Convention.” (CB p.21)
The Tribunal rejects that part of the claim because it found that the harm that the applicant was putting forward was not sufficient to amount to persecution and there was no evidence in relation to that.

In relation to both claims, the Tribunal rejected the claims on the basis that actual harm did not amount to persecution and had no reference to country information. The Tribunal did need to consider whether the applicant had a well founded fear of being persecuted for reasons of race, religion and nationality and that would require the Tribunal to look at whether the applicant had suffered persecution in the past and would do so in the future and to that extent the country information would not have been relevant for the Tribunal to consider. Normally the Tribunal would look at what had happened in the past in order to determine whether there was any likelihood of harm in the future. Consequently, the Tribunal would still be required to consider the country information to determine whether the applicant had a well founded fear of persecution for the reason of race. The country information in regard to the second claim that the applicant was fearful because his sister married an ethnic Indian and because he had Indian friends related to the issue of inter marriage. The Tribunal found that fear of persecution due to having an Indian in the family was not well founded. It is not clear from the Tribunal’s decision, whether the Tribunal had relied on country information in its assessment as to the amount or seriousness of any persecution. On the assumption that the Tribunal did rely on the material, that material was within the public domain and would have been known to the applicant.

Finally, in respect of ground 2, it was submitted by the respondent that a further reason that discretionary relief should not be granted was because of the unwarranted delay which was not fully explained.

A letter was tendered and is identified as Exhibit A1 being a letter requesting the Minister exercise her discretion under s.417. In that letter the applicant related the tragedy of his wife’s sudden death on her arrival at Sydney Airport in May 2000 and details of a serious injury he had sustained. This was the only material submitted on behalf of the applicant to explain the delay in seeking judicial review of the Tribunal’s decision.
The applicant was forwarded a letter by the Tribunal dated 4 May 2001 when the decision was handed down (CB p.15). The letter advised the applicant of his rights to seek a review and the requirement that that be done within 28 days of notification of the decision. There remained no explanation as to the delay between 4 May 2001 and 18 August 2003, other than the submissions made on behalf of the applicant which suggested that because the applicant made a representation to the Minister there was some explanation for the delay. In R v Australian Broadcasting Tribunal; Ex parte Fowler & Ors per Barwick CJ, Gibbs, Stephen, Mason and Aickin JJ held at 565:
“The application for a writ of mandamus would be refused because mandamus is not a writ of right, and may be refused on the ground of unwarranted delay. The prosecutor’s delay in seeking relief in the circumstances of this case made it just that the relief which they sought should be refused.”
Then at 568:
“It is well settled that the writ of mandamus is not a writ of right nor is it issued as of course, and that there are well recognized grounds upon which the court may, in its discretion, withhold the remedy; one of those grounds is unwarrantable delay: see, for example, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400. The delay of the prosecutors in seeking relief in the circumstances of the present case made it just that the relief which they sought should be refused.”
The remainder of the grounds were not pleaded by the applicant and arose from the written and oral submissions presented to the Court during the hearing. This raised a number of issues which were required to be addressed and leave was granted to amend the application by the addition of six new grounds. The first of these additional grounds was ground 4, which contained no particulars, and raised the issue that the Tribunal misinformed itself of the particular circumstances of the applicant and incorrectly applied the test to determine the status of a refugee. In the absence of any particulars that identify the issue in the Tribunal’s decision and the absence of oral submissions supporting the contention, the only remaining avenue was to consider whether this issue does arise on the face of the document.
A fair reading of the Tribunal’s decision did not disclose anything that would support this pleading. The last part of the ground seemed to allege that the Tribunal was biased. There were absolutely no particulars in relation to this issue and there was nothing in the reasons for the Tribunal’s decision that would support that contention. A party asserting actual bias on the part of the decision maker carries a heavy onus. The allegation must be “directly made and clearly proven”: Minister for Immigration & Ethnic Affairs v Jia per Gleeson CJ and Gummow J at [69] and Kirby J at [127].
The fifth ground contended that the Tribunal failed to ask itself a number of key questions. In respect of (a), (c) and (d) the Tribunal clearly did ask itself the relevant question. In relation to (b), the matter was not relevant to the question determining refugee status. In the Tribunal’s decision under the heading “Findings and Reasons”, the Tribunal reached the following conclusion:
“To be [a] refugee within the meaning of the Convention that fear must also be well-founded. Based on the independent country [information] cited above which indicates that ethnic Fijians such as the applicant can safely return to Fiji without fear of persecution, the Tribunal finds that there is no real chance that the applicant will be persecuted, in the reasonably foreseeable future. Therefore his fear of persecution is not well founded and he is not a refugee within the meaning of the Convention.” (CB p.28)
Clearly the Tribunal found that there was no real chance that the applicant would be persecuted in the reasonably foreseeable future.
Ground 6 claimed that the Tribunal paid no attention to the individual circumstances of the applicant and totally relied on the country information and generally disregarded the applicant’s perceived fear. To the contrary, the Tribunal clearly listened to the applicant’s evidence during the course of the hearing, asked questions of the applicant and believed the applicant in relation to the harm he claimed he had suffered. The respondent submitted the applicant’s claims were addressed by the Tribunal as follows:
a)The applicant alleged adverse material was not put to him or tested. The applicant did not identify the adverse material he says was not put to him. Further, the applicant did not say what action he would have taken had such material been put to him.
b)Presumably the applicant was referring to the country information referred to in the decision. The country information formed the basis of the Tribunal’s decision that the applicant, as a Fijian, did not have a well-founded fear of racial and ethnic violence in Fiji because the country information was to the effect that the situation in Fiji had changed since the May 2000 coup and there was no indication that Fijians were being deprived of their human and democratic rights.
c)The Tribunal rejected the applicant’s claim that he was fearful because his sister married an ethnic Indian and because he had Indian friends on the basis that the harm the applicant had faced in the past arising from that claim did not amount to persecution and, based on independent country information, he was unlikely to suffer persecution in the future.
In relation to Ground 6, I adopt these submissions and note the reasons given above at paragraph 19(1)-(e).
The Tribunal then considered country information and as a fact finding exercise found that the position had changed in relation to the situation the applicant fears in Fiji on his return due to him being a Fijian and the situation in that country.
In Ground 7 it was claimed that the Tribunal determined that the applicant’s fear was not well founded and relied on mere speculation together with independent evidence that had no bearing or direct reference to the applicant’s claim. On a fair reading of the Tribunal’s reasons, the process shows that the Tribunal again weighed up both the evidence the applicant provided and the evidence of available country information and made findings of fact on that material.
In Ground 8 the applicant claimed the Tribunal was aware of the shocking death of his wife at Sydney Airport and denied him procedural fairness and natural justice by not considering his personal details. In the absence of any particularisation, it was unclear as to why the applicant claimed he was denied procedural fairness. There was no suggestion that the applicant had requested an adjournment before giving evidence concerning the circumstances of his wife’s death or any related issue. A fair reading of the Tribunal’s decision on its face did not disclose any procedure or circumstance that would suggest that the applicant was denied procedural fairness.
Ground 9 stated that the Tribunal wrongly assumed that the applicant would not suffer Convention based persecution. Again this was not particularised. However, the Tribunal clearly stated the correct test to be applied which was supported by authority. The decision indicated that the Tribunal in its decision making process correctly applied relevant criteria.
In Ground 10 the applicant’s pleadings indicated that the country information used by the Tribunal was not applicable to him. The country information referred to by the Tribunal addressed the general political situation in Fiji and the effect of those circumstances on indigenous Fijians and Indo Fijians. That material was relevant as the applicant claimed he feared returning to Fiji because of the country’s political instability and his fear he would suffer harm. In the absence of any particularisation or submissions, how this material was inappropriate in assessing the applicant’s circumstances on his return to Fiji is not apparent.
Counsel for the respondent raised the issue of considerable and unwarranted delay in the applicant bringing this application. The Tribunal handed down this decision on 4 May 2001 and the applicant did not file his application for review of that decision until 25 August 2004, being a period in excess of four years. In a letter dated 4 May 2001 the Tribunal wrote to the applicant advising him of the decision it had made and attached a copy of the decision. The letter indicated the applicant was able to seek review of the decision in the Federal Court but the application for review was to be lodged with the Court within 28 days of notification of the decision. The letter also drew the applicant’s attention to the deeming provision that he would have been taken to have been notified seven days after the date of the letter (CB p.15). No evidence or submissions were made that provide an explanation for the delay.

Conclusion

In SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 the High Court has held that when the Federal Court is exercising the jurisdiction vested in it by s.39B of the Judiciary Act 1903 (Cth) with respect to matters in which a writ of mandamus or prohibition is sought against the Tribunal, the Tribunal is a necessary party to the proceeding.
The original grounds in the applicant’s application are general and without particularisation. When the applicant’s McKenzie friend read a prepared statement of the applicant to the Court, a number of further grounds were identified and the applicant was permitted to amend his application to include the issues so that they could be addressed by the respondent. This amendment was permitted because the applicant was self represented and indicated he was unable to afford legal representation and was relying on the assistance of a community worker to act as a McKenzie friend. Despite these late concessions to the applicant, I have not been able to identify any ground that the Tribunal committed jurisdictional error. The applicant’s claim should be dismissed.
Mr Laba-Sarkis who assisted the applicant made a submission seeking that any cost order made against the applicant in these proceedings should be waived. Mr Laba-Sarkis indicated the applicant was impecunious because his bridging visa prevented him from working and he had expended much of his resources in paying for earlier advice in relation to his application. The appropriate exercise of my discretion on the question of costs of an application for judicial review is that costs follow the event: WAEY v Minister for Immigration & Multicultural & Indigenous Affairs; WAFU v Minister for Immigration & Multicultural & Indigenous Affairs. Further, there were no special circumstances in this matter that would result in the successful litigant being deprived of his costs. I am satisfied that an order for costs should be made in this matter. I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 29 September 2005