SZLJK v MIAC

[2008] FMCA 694

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLJK & ANOR v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 694

MIGRATION – Review of decision of the Refugee Review Tribunal – failure to appear before the Tribunal – no failure to comply with the procedures set out in Division 4 of Part 7 of the Act – no denial of procedural fairness – application dismissed.

Migration Act 1958 (Cth), ss.426A, 36(2), 65, 425, 429A, 441A(4)
Migration Regulations 1994 (Cth), reg.4.35D

SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004] HCA 32
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
Tin v minister for Immigration and Multicultural Affairs [2000] FCA 1109
Paul v Minister for Immigration and Multicultural Affairs[2001] FCA 1196; (2001) 113 FCR 396
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214
SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 11
SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35
NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592; [2006] FCA 1045

Applicant: SZLJK & SZLJL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2973 of 2007

Judgment of: Nicholls FM

Hearing date: 16 May 2008

Date of Last Submission: 16 May 2008

Delivered at: Sydney

Delivered on: 16 May 2008

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Appearing for the Respondents: Ms N Johnson

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application made on 26 September 2007 is dismissed.

2. The first and second applicants pay the first respondent’s costs set in the amount of $2,700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2973 of 2007

SZLJK & SZLJL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an application made under the Migration Act 1958 (Cth) (“the Act”) on 26 September 2007 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 9 August 2007, and handed down on 30 August 2007, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicants.

2. The first respondent has filed a bundle of relevant documents in this matter (the Court Book – “CB”) from which the following background may be discerned.

3. The applicants are husband and wife and are both citizens of India.  They arrived in Australia on 17 March 2007 and applied for protection visas on 24 April 2007 (see CB 1 to CB 71).  Only the applicant husband made claims under the Refugees Convention.  The applicant wife claimed to be a member of his family unit and sought a protection visa on the basis that he would be recognised as a refugee.

Applicants’ Claims to Protection

1. According to the statement provided by the applicant husband with his protection visa application (at pages 70 and 71), and drawing to some extent on what was found before the Minister’s delegate, the applicant husband’s claims were that he was a Hindu who had owned a hardware shop in a Muslim area in a town in the State of Gujarat in India.  He claimed to have lost his business in the aftermath of riots, which followed an attack on a train carrying Hindu pilgrims by Muslims occurring in February 2002, and that he subsequently had to close his shop. He claims that he was harassed by Muslims who wanted his shop but were not offering “good money”. The applicant husband claimed that he asked friends for help and that he started farming, but that he lost money at this activity. He claimed that he had a debt owing to friends and to the bank, which “increased with credit interest”.  Following threats, particularly, “frightening telephone calls and notes”, he said that he was fearful of harm. With the help of friends, he applied to come to Australia where he would be allowed to work so as to earn money to repay his debt and to “keep his family happy and safe”.

Application to the Tribunal 

1. The application was refused by the Minister’s delegate (see the delegate’s decision at CB 76 to CB 85).  On 12 June 2007 the applicants sought review by the Tribunal (see CB 86 to CB 89). The application was sent via facsimile transmission by the applicants to the Tribunal.  By letter dated 13 June 2007, the Tribunal acknowledged receipt of the application (CB 90 to CB 91).  The letter set out the process by which the Tribunal was to conduct the review, and relevantly and importantly notified the applicants that once the Tribunal had received relevant information on the applicants’ file, it could either make a decision in their favour or, if it was unable to do so, would invite the applicants to attend a hearing. In its letter, the Tribunal explained that the hearing was the opportunity for the applicants to give the Tribunal evidence in support of the application and to provide further documentary material and information to the Tribunal.  

2. On 21 June 2007 the Tribunal again wrote to the applicants at the address for service provided by them (CB 97 to CB 98).  The letter notified the applicants that the Tribunal had considered the material before it but was unable to make a decision favourable to them, and it therefore invited the applicants to a hearing before the Tribunal.  The hearing was scheduled to take place at 9.00 am on 23 July 2007. The letter notified the applicants that arrangements had been made to conduct the hearing by way of “videoconference” and that while the relevant Tribunal member and the interpreter would be in Sydney, the applicants could attend the hearing at the Griffith Police Station (the nearest station to their home address). It alternatively provided the applicants with the opportunity to attend in person in Sydney if they so desired.  The letter stated the following:

   “Arrangements have been made to conduct the hearing by video conference. The Member and interpreter will be in Sydney. If there is a preference to attend in person in Sydney, please contact the Tribunal as soon as possible.”

3. The applicants were also advised to complete and return an enclosed “Response to Hearing Invitation” form to confirm their attendance at the hearing, and to advise as to who would take part.  The applicants did not respond to this letter. It appears, without explanation, that the applicants did not attend at the time, date and place at which the hearing had been scheduled (namely, the Griffith Police Station) (see CB 102).

Tribunal’s Findings and Reasons

1. The Tribunal’s decision record reveals that it proceeded to make a decision on the basis of the material before it (and although it is silent, it presumably did so pursuant to s.426A of the Act) on the basis that the applicants had been notified that the Tribunal was unable to make a favourable decision, and that they were invited to a hearing before the Tribunal to give evidence and present arguments, and that the applicants failed to attend the scheduled hearing and did not seek a postponement of the hearing. Given that the applicants did not otherwise contact the Tribunal, the Tribunal was of the view that it had discharged its obligation to provide an opportunity to appear before it, and therefore exercised its discretion to proceed to make a decision on the review without taking further action to enable the applicants to appear (see generally CB 111.9 to CB 112.3).

2. A plain reading of the Tribunal’s decision record reveals that the reason that the Tribunal affirmed the decision under review was that on the material before it, it was unable to reach the requisite level of satisfaction that the applicant husband had a well-founded fear of being persecuted for a Convention reason if he were to return to India.  This was explained by the Tribunal to be because the applicant had “provided only the bare outline of his claims”, that it was “not clear whether he sought the protection of the authorities either at the national level in India or at the state level in Gujarat”, and further that it was “also unclear” why the applicant did not seek to relocate to a Hindu area of Gujarat to avoid the harm.

3. Further, the Tribunal found that the applicant husband did not satisfy the relevant criterion set out in s.36(2)(a) of the Act. The applicant wife who had applied as the spouse of a person who holds a protection visa was also unable to satisfy a relevant criterion set out in s.36(2)(b) of the Act.

Application before the Court

1. The application before the Court puts forward the following grounds:

   “1.That the tribunal’s decision was in breach of section 424A(1) of the Migration Act 1958 (Cth).

   Particulars:

   (a)There was certain adverse information used by the Tribunal to affirm the decision under review.

   (b)The Tribunal was in no obligation to put the departmental information to the applicant under s424A since the applicant did not turn up for hearing.

   2.That the tribunal made error of law and lack of procedural fairness and therefore committed jurisdictional error.

   3.That the tribunal made denial of natural justice.  Because it failed to provide further opportunity before the Tribunal.”

Hearing before the Court

1. At the hearing before the Court the applicant husband appeared in person.  He was assisted by an interpreter in the Gujarati language.  The applicant wife did not appear.  The applicant husband explained that his wife understood that he would represent her interest before the Court.

2. Ms N Johnson appeared for the respondent.  I also note that in addition to the Court Book and a formal response filed on 2 October 2007 by the first respondent, I also have before me the first respondent’s outline of written submissions filed on 28 April 2008. Ms Johnson sought leave, which was subsequently granted, to read into evidence her affidavit of 12 March 2008 and note relevantly that the affidavit annexes relevantly the tribunal's relevant postal log that is relevant to the applicant's case in relation to the tribunal’s letter of invitation to hearing. 

3. The applicant husband made submissions before the Court seeking to explain his failure to attend at the Tribunal hearing.  I gave the applicant husband the opportunity to give evidence to the Court in relation to this matter. He took up this opportunity and was subsequently cross-examined by Ms Johnson. 

Consideration

1. The relevant statutory regime applicable to matters of this type before the Tribunal (ss.65 and 36(2) of the Act) provides that a protection visa must be granted if the Tribunal is satisfied that the applicant meets the requirements as set out in s.36(2) of the Act. In effect, this means that the applicant meets the definition of “refugee” as set out in Article 1A(2) of the Refugees Convention, as further explained in s.91R of the Act. If this level of satisfaction is not reached, the protection visa must not be granted (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]-[16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).

2. Any plain reading of the Tribunal’s reasons reveals that the applicant husband had provided insufficient detail such that the Tribunal could not be satisfied that the relevant statutory requirements had been met.  In particular, I note that the lack of detail in the applicant’s claims was a matter specifically noted (in relation to the issue of adequate state protection and relocation) in the delegate’s decision. 

3. The material before the Court reveals that the Tribunal put the applicants on notice as to the process and procedure that it would adopt in relation to the conduct of the review. Importantly, the Tribunal invited the applicants to a hearing pursuant to s.425 of the Act. The relevant letter provided notice of the specified date, time and place of the hearing. The opportunity for the applicants to be heard by way of videoconference is consistent with the discretion provided to the Tribunal pursuant to s.429A of the Act that the Tribunal may allow an appearance by an applicant by telephone or closed circuit television or by any other means of communication. The words of the relevant part of the Tribunal’s letter make it plain that the applicants should attend the hearing by attending at the Griffith Police Station at the address given in Griffith. Nor is there error in the Tribunal indicating to the applicants that if there was a “preference” to attend in person in Sydney, that could also be arranged on request of the applicants.

4. I cannot see error in the Tribunal scheduling a hearing to be conducted by way of video conference facility, especially as it was, after all, to the benefit of the applicants, given that they would not have to travel outside of the town in which they were living. Nor is there error in the Tribunal providing the opportunity for the applicants to change the venue if they so desired; noting importantly that the applicants were notified that a change in venue could be arranged if the applicants contacted the Tribunal to seek such a change.

5. The evidence before the Court (see the registered post number at CB 97.3, and in particular the evidence of Ms Johnson) is that this letter was despatched to the applicant’s address for service on 22 June 2007 by registered post. This complied with the requirements of s.441A(4) of the Act because it was despatched by registered post within three working days of the date of the letter to the last address for service provided by the applicants. Further, the relevant notice period prescribed by reg.4.35D of the Migration Regulations 1994 (Cth) (“the Regulations”) being 14 days was also provided for in the relevant period (being 21 June 2007 to 23 July 2007). Further, the letter did contain a statement to the effect of s.426A of the Act, that is, with reference to the options available to the Tribunal if the applicants did not appear before it.

6. In all, the Tribunal did send a notice to the applicants inviting them to a hearing pursuant to s.425 of the Act, and this notice complied with the relevant statutory provisions (s.425A of the Act) and the relevant regulatory requirements (reg.4.35D of the Regulations). The Tribunal did not receive any reply from the applicants to its letter, and when the applicants did not attend the hearing, it was open to the Tribunal to proceed to determine the matter without taking any further action to enable the applicants to appear before it. In these circumstances, it was open to the Tribunal to exercise its discretion to proceed in the manner that it did. I cannot see error in this regard. As the Minister submits, the Tribunal was not required to make further enquiries (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004] HCA 32 per Gleeson CJ at [19], per Gummow and Hayne JJ at [33]-[43], per Callinan J at [124]; note Kirby J contra at [74]).

7. The applicant husband gave evidence today before the Court and the salient features of that evidence is as follows: the applicants received the Tribunal’s letter inviting them to the hearing.  The applicant husband showed this letter to friends or other people.  He did not obtain a full translation but largely, based on what he had generally been told by others in Griffith, he mistakenly formed an understanding that he had to travel to Sydney to attend the Tribunal hearing, as he said that had been the case with others in Griffith who had similarly applied to the Tribunal. 

8. He said that he travelled to Sydney for the hearing, and that while he could not remember the address of the building, he nonetheless checked the listings posted at the Tribunal.  Although he said that he could not read English, he was able to check the relevant file number and said that he could not see his file number.  He then telephoned his wife.  She then checked the letter of invitation to hearing with someone else and told him that the hearing was scheduled to be held in Griffith.  He gave evidence in cross-examination that he did not speak to any Tribunal staff in Sydney, and that after he became aware that he had missed the hearing he made no attempt to contact the Tribunal. 

9. He confirmed receipt of relevant Tribunal letters; that is, the letter of 21 June, informing him of the hearing on 23 July, and that he received subsequent letter from the Tribunal of 10 August 2007, notifying him of the handing down of the Tribunal’s decision on 30 August 2007.  The applicant confirmed during cross-examination that he took no steps in any of that time to contact the Tribunal and explain the mistake that had occurred in attending at Sydney instead of Griffith for the hearing. 

10. I am satisfied on what is before the Court that the Tribunal, as I said, complied with all of the statutory and regulatory requirements in relation to the invitation for hearing.  In circumstances where the applicants failed to attend the hearing at the appropriate time and place, and in circumstances where the Tribunal did not otherwise hear from the applicants (and the applicant husband has confirmed this by his evidence today), it was open to the Tribunal to exercise its discretion to proceed in the manner that it did.  I cannot see error in this regard.

11. The applicants did not provide any explanation to the Tribunal for their failure to appear even though such opportunity was available to them up until the Tribunal handed down its decision on 30 August 2007.  Plainly, the Tribunal is not obliged to accept an applicant’s claims at face value.  For whatever reason, the applicants, having been put on notice of the importance of the hearing, did not to attend.  The Tribunal’s rejection of the application was the “inevitable consequence” of their non-attendance at the hearing (see NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5]).

12. As the Minister submits, the Tribunal was not required to make any further inquiries (see Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12). The applicants did not provide any explanation to the Tribunal for their failure to appear even though such opportunity was available to them up until the Tribunal handed down its decision on 30 August 2007. Plainly, the Tribunal is not obliged to accept an applicant’s claims at face value. The applicants were put on notice of the importance of the hearing. They did not attend.

13. From the Tribunal’s perspective, the applicants provided no explanation, and it is important to note that the applicant husband confirmed in his evidence today that the response to hearing invitation form was not returned to the Tribunal. On any objective basis, the Tribunal’s rejection of the application was, in a sense, the inevitable consequence of the non-attendance at the hearing (see NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287).

1. Ground 1 in the application asserts a breach of s.424A(1) of the Act. During the course of refusing the applicant’s application for an adjournment, I made reference to the time that was available to the applicant to have properly attended to the conduct of pursuing his case before this Court. I can only note again that, despite the opportunity provided by a Registrar of this Court at the first Court date of this matter on 31 October 2007, the applicants had not filed nor served any further material by way of providing particulars to their application or evidence to support and progress their matter before this Court. The stated ground of purported breach of s.424A(1) of the Act was that the Tribunal failed to put to the applicants “certain adverse information” that it “used” to affirm the decision under review. The applicants do not say, nor was the applicant husband able to assist before the Court today, as to what this adverse information may be.

2. In any event, I cannot see that the Tribunal’s decision turned on any “information” as is set out by the High Court judgment in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”) at [18]. The Tribunal’s thought process and subjective appraisals do not constitute “information” for the purposes of s.424A(1) of the Act such that that section is enlivened (Tin v minister for Immigration and Multicultural Affairs [2000] FCA 1109, Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396, VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214, SZBYR at [17] and [18]). Simply, on what was before it, the Tribunal was unable to be satisfied that the applicants met the relevant statutory requirement. I cannot see that s.424A(1) of the Act is enlivened in these circumstances.

3. Ground 1(b) of the application is difficult to understand. On its face, it appears to assert that there was no obligation on the Tribunal to put “the Departmental information to the applicant under s424A”, but read in the most advantageous way to the applicants, it may be that what the applicants are seeking to assert is that the Tribunal relied on information in the applicant husband’s protection visa application, information which he had given to the Minister’s Department, and that therefore this can be said to be information on which the Tribunal relied thus enlivening s.424A(1) and falling outside the exception contained in s.424A(3)(b) because it was not information given by the applicants for the purposes of review.

4. If this is what the applicants mean by this complaint, then this ground does not succeed.  Bearing in mind what the High Court said in SZBYR at [17], this information provided by the applicants to the Minister’s Department does not “contain in their terms a rejection, denial or undermining” of the applicants’ claims to be persons to whom Australia owes protection obligations. In any event, see the state of the authorities prior to SZBYR: SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 11 at [29]-[30] per Allsop J, followed in SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238, where again no obligation pursuant to s.424A can be said to have arisen.

5. Ground 2 asserts a breach of procedural fairness. I note that this is a case to which s.422B of the Act applies. (In relation to s.424AA of the Act as Division 4 of Part 7 was prior to 29 June 2007.) Relevantly, therefore, to the extent that the applicant asserts a lack of procedural fairness, this must be seen as a lack of procedural fairness pursuant to the statutory code (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]). Given what is set out above, and given that I cannot see any other breach of the procedural code, this ground does not succeed.

6. Ground 3 asserts a denial of natural justice because the Tribunal was said to have failed to provide a “further” opportunity before the Tribunal. On the applicant husband’s evidence to the Court, it is difficult to see how the Tribunal could have provided any further opportunity when the applicants, for whatever reason, did not tell the Tribunal that there had been some difficulty or some mistake in attending the hearing. But in any event, the applicant husband’s evidence was very clearly that the relevant letters from the Tribunal had been received, and while the Court is sympathetic to applicants such as the applicant husband, in understanding the difficulties that are faced by persons who come from another country and face language barriers and a lack of understanding of how relevant matters operate in this country, and even while understanding that different cultural attitudes that may be at play, I find two aspects of the applicant husband’s evidence difficult to accept.

7. What must be remembered is that the applicants did not come to this country, presumably, as migrants. By their action, and by their applying for protection visas in this country, they were making a very clear statement that their lives and liberties were at risk unless Australia was to offer them protection. Whatever cultural context may be applied, this can only be seen to be an extremely serious matter.

8. Firstly, in light of what I have just said, I find the applicant husband’s evidence that he relied generally on what some un-named persons in Griffith told him, that he accepted what some of these other persons may have told him about the importance of the Tribunal hearing, and the place at which it was to be conducted, and that he failed to at least obtain some comprehensive translation of the Tribunal’s letter, to be inconsistent with the very serious issue of which the applicant was seeking to put before the Tribunal – namely, the danger to his life and liberty.

9. Further, the applicant's failure to make any attempt to notify the Tribunal, despite opportunity, of the mistake that he said he had formed as to the place of the Tribunal hearing, also raises questions about the applicant’s commitment to the very serious matter that he was seeking to put before the Tribunal.  The applicant appears to have adopted some calm acceptance that he had made some mistake in attending at Sydney instead of Griffith for the hearing, and his evidence was that his wife told him that the hearing was in Griffith.  In my view, the applicant husband’s (and for that matter, the applicant wife’s) failure to contact the Tribunal in the five weeks available to them is inconsistent with the seriousness of the application that they had put before the Tribunal.

10. As already referred to above, I cannot see error in how the Tribunal exercised its discretion pursuant to s.426A to proceed in the way that it did. The Tribunal complied with its obligations when the applicant did not attend at the scheduled time. And I note in this regard, as I said before, that the applicants made no attempt to contact the Tribunal as they had been requested to do so in relation to their intention of attending or not attending at the hearing. When the applicants did not attend at the hearing, and they made no efforts to contact the Tribunal, it was plainly open to the Tribunal to proceed to exercise its discretion and determine the review without taking any further action to enable the applicants to appear before it.

11. There was nothing from the applicants to seek an adjournment of the hearing date, nor did the applicants seek any further opportunity.  Further, I cannot see that there was any obligation on the Tribunal to make any enquiry as to the failure of the applicants to appear at the scheduled hearing (see in particular NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592; [2006] FCA 1045 at [20]-[22]).

12. In all, the applicants were provided with the opportunity to attend a hearing.  The applicants did not attend.  They did not attend on the applicant husband’s evidence because of a mistaken understanding derived by him from unidentified persons to whom he had spoken, that the place of the hearing was in Sydney rather than in Griffith. 

13. In the circumstances of this case, on the evidence that is before the Court, this is not a matter akin to what was before the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35. In that case, the Tribunal’s decision was found to have been affected by jurisdictional error because fraud on the part of the migration agent lead to the applicants not attending a hearing before the Tribunal, such that the High Court said that the Tribunal’s obligation to invite the applicants to a hearing, and to provide a meaningful opportunity for a hearing, was affected by the fraud of this third party.

14. Plainly, as Ms Johnson submitted, the evidence before the Court does not go anywhere near to sustaining any concern that fraud, or that anything akin to fraud, or that even negligence, was involved in this case. I agree with Ms Johnson’s submissions that the applicant husband’s evidence in this regard (that he appears to have gained the impression from other unnamed people in Griffith that the place of the hearing was in Sydney) can only be described as “vague.” Further, the state of this evidence plainly provides the explanation that shows that the mistake as to the location of the hearing was an honest mistake on the applicants’ part. I was not satisfied that, if indeed there can said to have been a mistake, that such as mistake was on the part of these other unnamed people. If anything, the state of the evidence before the Court would suggest that the mistake was the applicant husband’s own mistake.

15. In conclusion, therefore, the applicants were provided with the opportunity to attend a hearing to give evidence to the Tribunal.  They did not attend.  In circumstances where the Tribunal was satisfied that its statutory and regulatory obligations were complied with, and in circumstances where the applicants put nothing before the Tribunal to seek an adjournment or to explain their failure to attend, it was plainly open to the Tribunal to proceed in the way that it did. I cannot discern jurisdictional error as it is said to arise from the stated grounds of the application, nor otherwise. Accordingly, this application is dismissed.

16. I am satisfied that an order for costs should be made in this matter.  There is nothing before the Court that would indicate or that would argue that such an order should not be made. I note, in particular, that the applicant husband, despite opportunity, said that he had nothing to say to the Court on the issue of costs. I am further satisfied that such a costs order should be made in respect of both the applicant husband and the applicant wife, given that the applicant wife is an applicant in these proceedings and pressed her application before the Court by way of her husband’s representation. 

17. As to the amount; I am satisfied, given the work that has been done by the Minister’s legal representatives, as evidenced by what has been filed in this matter, that the amount sought is, in all the circumstances, a reasonable amount, noting that in accordance with the relevant schedule to the Rules of this Court, that the Minister’s representative could have sought an amount far in excess of $2,700. 

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date:  28 May 2008