SZLOE v Minister for Immigration

[2008] FMCA 515

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLOE & ANOR v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 515

MIGRATION – Review of Refugee Tribunal decision – adverse credibility finding – no failure to consider claims or asserted “seriousness of harm” – no failure pursuant to s.424A of the Act – impermissible merits review – no evidence of bias or bad faith – no evidence of a failure to provide an adequate level of interpretation – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), s.91R(1)(b), 36(2), 65, 424A(3)(b), 424A(1)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437
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
Ram v Minister for Immigration and Ethnic Affairs and Anor (1995) 57 FCR 565
Applicant A and Anor v Minister for Immigration and Ethnic Affairs and Anor (1997) 190 CLR 225; [1997] HCA 4
Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1; [2000] HCA 55
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162; [2005] HCA 24
SZEPZ v Minister for Immigration and Multicultural Affairs (2006) FCR 291; [2006] FCAFC 107
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 528
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102
Mahzar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188
Xiao v Minister for Immigration and Multicultural Affairs[2000] FCA 1472
Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230
Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507
Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1

Applicant: SZLOE & SZLOF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3329 of 2007

Judgment of: Nicholls FM

Hearing date: 21 April 2008

Date of Last Submission: 21 April 2008

Delivered at: Sydney

Delivered on: 21 April 2008

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Appearance for the Respondents: Ms N Johnson

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application made on 29 October 2007, and amended on 4 February 2008, is dismissed.

2. The applicants pay the first respondent’s costs set in the amount of $2,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

SYG 3329 of 2007

SZLOE & SZLOF

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 an application made under the Migration Act1958 (Cth) (“the Act”) on 29 October 2007 and amended on 4 February 2008 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 12 September 2007, and handed down on 2 October 2007, which affirmed a decision made by a delegate of the respondent Minister to refuse the grant of protection visas to the applicants.

2. The first respondent, in accordance with orders made by the Court, filed a bundle of relevant documents in this matter which I will refer to as the Court Book (“CB”).  The following background may be discerned from the documentation.

3. The applicants are husband and wife.  They are citizens of India.  They arrived in Australia in March 2007.  They applied for protection visas in May 2007.  That application is reproduced in the Court Book at CB 1 to CB 31.  The applicant wife did not make any claims to be a refugee in her own right, but applied as a member of her husband’s family unit. 

4. On 19 May 2007, a delegate of the first respondent refused to grant the visas, and the applicants subsequently, on 7 June 2007, applied for review by the Tribunal.  Both applicants were invited to attend a hearing before the Tribunal.  I note at CB 48 and CB 49 a copy of the letter of 17 July 2007 is reproduced.  The material reveals that the applicant husband did attend the hearing on 14 August 2007 at which time he also spoke on behalf of his wife who did not attend.  On that occasion he was assisted by an interpreter in the Gujarati language, and the only account of what occurred at the hearing that has been put before the Court is the Tribunal’s own account as contained in its decision record.

5. Unless I note otherwise, a reference to the applicant will be a reference to the applicant husband.  In his application for a protection visa the applicant claimed to have been engaged in business in India, targeted by extortionists and had been the subject of attempts by them to unlawfully demand money on various occasions and that these demands increased as his business grew.  When he sought assistance and help from the police, they could not protect him. 

6. At the hearing before the Tribunal the applicant’s claims to protection were said to arise from his claimed fear of harm from two people at least, whom he described as “thugs”, whom he said were members of his caste and had hostile relations with his family because of a land dispute.  The applicant claimed to be a member and supporter of the Congress Party in India and claimed that he and his family had been directed by these thugs to vote for a party opposed to the Congress Party, namely, the BJP, and that they had attended his home and harassed him and threatened him and his family in relation to this vote.

7. The applicant also variously claimed that prior to these incidents, the thugs had stopped the water supply to his home and farm and that the harassment had resulted in the closure of his business and that, indeed, he had been assaulted by them.

8. It is very plain from any reading of the Tribunal’s decision record that the Tribunal simply did not believe the applicant.  The Tribunal found that the applicant lacked credibility and was not a truthful witness.  The Tribunal gave reasons for this finding.  The reasons were because of the inconsistencies, contradictions and implausibilities in what the applicant had said to it.  As a result of this, the Tribunal concluded that it could not be satisfied that the applicant had a well-founded fear of persecution for a Convention-related reason and consequently found that in relation to the applicant husband, and separately in relation to the applicant wife, that they were not persons to whom Australia owed protection obligations.

9. The applicant has put an amended application before this Court.  I also note the applicant’s affidavit said to have been made on 5 October 2007 which, in effect, puts the Tribunal’s decision record before the Court, and asserts that the grounds mentioned in the application are true and that the applicant has a fear of harm.  The Court also has before it the applicant’s outline of written submissions.  I note that these are dated 9 April 2008 but, plainly, incorrectly stamped as having been filed on 11 April 2007 by the Registry of this Court.  I note that if they had been filed, as appears to be the case, on 11 April 2008, that the written submissions still represent the attempt by the applicant to explain the grounds set out in the application, and the Court considered them in that light.  But I note that the written submissions also purport to raise additional complaints about the Tribunal decision which I will deal with in due course.

10. The amended application puts forward one stated ground with what appear to be four numbered particulars, and an additional unnumbered paragraph with further particulars.  These are in addition to the two grounds stated in the originating application.  In any event, the applicant husband appeared before the Court in person.  He was assisted by an interpreter in the Gujarati language.  The applicant husband informed the Court that his wife did not intend to appear, but that she had given her consent to his speaking on her behalf.  Ms Johnson appeared for the first respondent.

11. The applicant told the Court that he has lots of problems in India, that he cannot return to India, that the Tribunal had available to it through the internet all the available information about the circumstances in India and generally pressed the complaints as set out in his amended application and written submissions.  The ground in the amended application as stated is as follows:

    “The Tribunal exceeded or constructively failed to exercise jurisdiction in making the decision to affirm the decision of the respondent not to grant the applicant a protection visa; and the Tribunal erred in law arriving at the decision to affirm the decision of the respondent not to grant the applicant a protection visa.”

12. As is noted in the first respondent’s submissions, the first and second stated particulars to this ground do not assert legal error on the part of the Tribunal; the third relates to certain parts of the procedural history of the applicant’s protection visa application.  While it makes broad assertions of the Tribunal decision being infected with error and the Tribunal acting contrary to law, there is no particularity whatsoever in these statements such that they could be seen as anything more than perhaps introductions to what follows in the amended application. 

13. The fourth stated particular asserts that the Tribunal did not make a finding relating to the seriousness of the harm claimed and, in particular, that the Tribunal did not find that the seriousness of the harm constituted persecution for the purposes of how that term is understood for the purposes of the Act.

14. I can only agree with the first respondent’s submissions that this ground is misconceived.  It is quite plain the Tribunal did not make a finding that the harm feared was not sufficiently serious to amount to persecution, but that is clearly because the Tribunal rejected that any of the claimed harm said to have occurred in the past had, in fact, occurred.  The reason that it rejected this was because it had formed a very clear negative view of the applicant’s credibility and truthfulness.

15. It is well-established that findings of fact by the Tribunal, which include findings on credibility, are for the Tribunal to make as the relevant decision maker (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”)).  As I explained to the applicant, such a finding on its own does not reveal a legal mistake or jurisdictional error on the part of the Tribunal.  Simply, the Tribunal did not believe the applicant.  It did not have to uncritically accept anything or everything that the applicant had said to it (Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437), and it gave very clear and cogent reasons as to why it did not believe the applicant. In these circumstances, I cannot discern error of law as asserted in the amended application by the applicant.

16. I note also that under the second heading of “Particulars”, the amended application complains that the Tribunal wrongly applied the law in relation to s.91R(1)(b) and (c) of the Act.

17. The Tribunal was plainly required to consider whether the applicants were persons to whom Australia owed protection obligations. The relevant statutory regime as set out in the Act mandates that a protection visa must be granted if the Tribunal is satisfied that an applicant meets the requirements set out in ss.36(2) and 65 of the Act. I say this (in particular for the applicant’s benefit) that the Tribunal is required to determine whether applicants before it meet the definition of “refugee” as set out in Article 1A(2) of the Refugees Convention. The effect of ss.65 and 36(2) of the Act in considering this question, is that, in the absence of the Tribunal reaching this requisite state of satisfaction, a refusal decision is mandated (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).

18. An applicant for a protection visa, such as the applicant husband before the Court today, must show that the fear of persecution is for one of the reasons set out in Article 1A(2) of the Refugees Convention. The requirement to satisfy that Article is further explained and enhanced by s.91R of the Act which deals with the requirement that the Convention reason, or reasons, upon which an applicant relies must constitute at least the “essential and significant reason, or reasons,” for the persecution, and that the persecution involves systematic and discriminatory conduct. Of course, examples of instances of serious harm are set out in s.91R(1) of the Act.

19. I agree with the first respondent’s submissions that the Tribunal did not need to consider, or turn its mind to, whether these elements, these particular elements, were satisfied.  The Tribunal found that the applicant had no subjective fear of persecution.  It plainly considered his claims to have experienced harm and had comprehensively rejected these claims.  In these circumstances, the Tribunal did not need to go on and consider these additional elements of the relevant definition of “refugee”.

20. In the amended application the applicants also complain that the Tribunal “adopted a line of questioning designed to establish the harm from the perspective of the applicant persecute asking why would be harmed rather than addressing as to the motive that to political Parties (Bharatiya Janta Party) may have in harming the applicant” (errors in original).  I note that this is similar or identical to the complaint made in ground one particulars in the originating application made to the Court.

21. The first respondent’s submissions are that this is a difficult ground to understand.  I agree, noting that the applicant told me today that his documentation was prepared with the assistance of a friend who was not a lawyer, which may explain why some parts of the documentation are formulaic and also difficult to comprehend.  But, in any event, it may be that the complaint is that in considering the issue of persecution for the purposes of the Refugees Convention, and that this contains some element of motivation for the infliction of harm, that the author of these documents was seeking to direct the Court to what was said by the Federal Court in such cases as Ram v Minister for Immigration and Ethnic Affairs and Anor (1995) 57 FCR 565 (“Ram”), and the High Court in Applicant A and Anor v Minister for Immigration and Ethnic Affairs and Anor (1997) 190 CLR 225; [1997] HCA 4 (“Applicant A”). 

22. In the matter of Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1; [2000] HCA 55 McHugh J stressed that the Refugees Convention obliges the Tribunal to ascertain the motivation for the allegedly persecutory conduct which the refugee applicant fears.  In Ram, Burchett J said that persecution involves the infliction of harm but it implies something more, and that this includes an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation for the infliction of harm.  It could be that the applicant’s complaint is that the Tribunal’s questions at the hearing were focussed on his actions and did not include any focus on the motives of those from whom he claimed to fear harm.  But even if this is what the applicant is seeking to claim, such a complaint does not succeed. 

23. Firstly, I note, as the first respondent submits, there is no evidence of what occurred at the Tribunal hearing other than what is contained in the Tribunal’s own account before the Court.  On this account, the Tribunal clearly focussed on what I would describe as the factual substratum of the applicant’s claims.  The Tribunal plainly is entitled to do this.  It asked the applicant to explain what he said had occurred.  Again, this was appropriate.  There is no error of law, as the first respondent submits, in the Tribunal posing questions for itself relating to the state of mind of the applicant.

24. As to any motivation on the part of those whom the applicant claimed to have inflicted harm on him in the past, the Tribunal’s finding that the applicant’s evidence was inconsistent, contradictory and implausible (findings which, it must be said, were entirely open to it on what was before it), meant that in these circumstances, it was not necessary for the Tribunal to go on and consider the motivation of those from whom he said had harmed him.  This is simply because the Tribunal had rejected that, in fact, he had been harmed.  I cannot discern error as asserted in this part of the particulars of the amended application.

25. In the amended application, again, under the same heading of “Particulars”, the applicants assert that the Tribunal failed to apply the correct test in accordance with s.424A(1) of the Migration Act. There is a reference to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162; [2005] HCA 24. It may be that the applicants seek to further expand upon this in the written submissions where the written submissions say that: “In making decision, the Tribunal used certain information’s (sic) on which the Tribunal did not provide an opportunity to the applicant to respond”. As the respondent submits, these assertions are really unparticularised and, at best, what is asserted against the Tribunal is that it failed to put adverse information to the applicants pursuant to s.424A(1) of the Act. It is not clear what this adverse information is from the applicants’ perspective. If the applicants seek to complain that the Tribunal failed to put the adverse view that it has formed to the applicants pursuant to s.424A of the Act, then it is, as the Minister submits, that the Tribunal relied on information provided by the applicants themselves.

26. I note that in relation to that part of the information provided by the applicant husband at the hearing, that is, his evidence at the hearing, that this is information that falls within the exceptions set out in s.424A(3)(b) of the Act from the requirements of s.424A(1) of the Act (SZEPZ v Minister for Immigration and Multicultural Affairs (2006) FCR 291; [2006] FCAFC 107). If what the applicants seek to complain about is a failure of the Tribunal to put its adverse views and thought processes to them pursuant to s.424A(1) of the Act then, given what the High Court said in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [17] and [18], such thought processes are not “information” for the purposes of s. 424A(1). In all, the obligation set out in s.424A(1) was not enlivened and, as the first respondent submits, there was no requirement, or obligation, imposed on the Tribunal to send any letter pursuant to that section.

27. Further, the Tribunal put to the applicant at the hearing that it found it inconsistent that he had initially told the Tribunal that he had a wheat business operating as a sideline business after opening his garment shop and then later told the Tribunal that he had not grown wheat for five to six years.  At the hearing the Tribunal also pointed out to the applicant that he had initially stated that he had reported to the police certain threats that were made to him, but then subsequently said that he had not reported these to the police because he was threatened that if he called the police then the thugs would seriously harm him, and that they would kill him. 

1. The Tribunal also noted that at the hearing it asked him how many times he had reported incidents of harm to the police, and the applicant had stated that it was two occasions, but he could not remember when.  But the Tribunal drew the applicant’s attention to the fact that he had, only indicated some moments earlier, on one of the occasions (in 2004) reported the incident to the police.  The Tribunal also noted the inconsistencies and contradictions in the applicant’s evidence as it related to the thugs attending his home and threatening his family.

2. As I have said earlier, in the originating application to the Court (I refer to this because I have an unrepresented applicant before me today, and I want to ensure that if there is error to be discerned the Court does not overlook any possibility) I have already dealt with the first ground and particular. 

3. The second ground, stated as ground three, asserts that the Tribunal based its decision on unreliable information and should have made investigations before making the decision.  If it is that the applicant is asserting that the Tribunal took into account irrelevant information and failed to take into account relevant information, then it is plain from the Tribunal’s decision record that what it relied on in the making of its decision was the applicant’s own evidence.  I cannot see that it took into account irrelevant information or that the assertion that it failed to take into account relevant information amounts to anything more than a request for impermissible merits review (Wu Shan Liang) in that it could only mean that the applicant is saying that the Tribunal failed to take into account the information that he provided, that is, it did not believe him.  As I have already said, the adverse finding as to the applicant’s credibility was entirely open to the Tribunal on what was before it, and, without anything further, it is not open to this Court to review or to disturb such a finding.  It may be that the Tribunal did make its decision on the basis of unreliable information in the sense that it can plainly be inferred that it found the applicant himself and the information that the applicant had provided in that sense to be unreliable.  But this, of course, does not assist the applicant for the reasons that I have already stated.

4. The applicant’s complaint that the Tribunal should have made an investigation before the making of the decision may also be seen in light of what the applicant told the Court today that the Tribunal had information available to it through the internet and should have presumably made investigations prior to making the decision to reject his claims.  There is, of course, no general duty on the Tribunal to make further investigation (NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 528 at [18]-[21]), but, importantly, in the circumstances of this case, I cannot see that any such obligation arose. The Tribunal does not have to go searching through the internet to find information that may or may not be of assistance to the applicant. The starting point for the Tribunal must be to give the applicant an opportunity to put forward his claims, to give his evidence and explanations, and to consider all aspects of his claims. This is precisely what this Tribunal did. Both applicants were given the opportunity to attend a hearing. The applicant husband did attend and gave his evidence. The Tribunal simply did not believe him. In these circumstances, there was no obligation on the Tribunal to make any further investigation or, indeed, more particularly, to search the internet for any other information. I emphasise again for the applicant that the Tribunal in this matter relied on what he himself had put to it and that the Tribunal’s finding as to his credibility was a matter for the Tribunal and was open to it.

5. I note in the written submissions a number of other complaints that are raised by the applicants.  The applicant complains that the Tribunal erred when it failed to assess state protection and failed to enquire as to the practicality of relocation.  The short answer to the applicant’s complaints in this regard is that while the Tribunal at the hearing did question the applicant as to whether he had safely lived in other villages it did not make any findings with respect to the issue of relocation.  Having found that the applicant had not been the subject of persecutory harm in the past, the Tribunal was not required to go on and consider whether the applicants could reasonably and safely relocate to avoid any persecutory harm.  As Ms Johnson submitted, both in relation to the issue of relocation and state protection, the Tribunal did not go on to consider these issues because it could not be satisfied that the applicant had a well-founded fear of persecution if he were to return to India.  It did not accept that he had been involved with the Congress Party after December 2002 or that any involvement prior to 2002 had attracted any adverse attention amounting to persecution.  It did not accept that he and his family had been threatened or harassed as claimed, or that they had been targeted or, in particular, that he had experienced extortion or extortion attempts, and it was not necessary, therefore, for it to consider whether state protection was available or adequate or meaningful or whether relocation was reasonable.

6. To the extent that the amended application and, in particular, the particular dealing with the complaint that the Tribunal adopted a line of questioning designed to establish the harm from the perspective of the applicant, may be said also to seek to complain that the Tribunal in some way acted in bad faith or adopted a line of questioning designed to establish some predetermined outcome, and to the extent, therefore, it could be said that this is also a complaint of bias on the part of the Tribunal, then there is no evidence before the Court to support any such assertions.  All that the Court has before it in this regard is the Tribunal’s decision record.  It would be rare if such complaints could be made out with reference only to the decision record (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38], per von Doussa J). Despite opportunity, the applicants have not put any evidence before the Court to support any such claims. With reference to relevant authorities, such claims do not succeed (Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28, Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361, Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102).

7. I note also that the written submissions make assertions firstly, that “at the time of the hearing before the Tribunal, the applicant was totally confused and nervous”.  There is also a complaint about the Gujarati interpreter’s interpretation of many issues raised at the time of the hearing.  As Ms Johnson correctly, in my view, submitted before the Court today, there is no evidence before the Court to establish any deficiency in the standard of interpretation at the Tribunal hearing.  There is simply nothing in the material before the Court to support such a complaint nor, for that matter, is there anything before the Court to support the applicant’s complaint that he was totally confused and nervous, let alone that, even if he had been confused and nervous, that this then would show error on the part of the Tribunal.  In the absence of any such evidence, these complaints do not succeed.  I note the applicant was given opportunity at the first Court date, at which time counsel had attended on his behalf for that limited purpose, to have filed any evidence in support of any of his grounds or complaints.  Despite opportunity, no evidence in this regard has been put before the Court.

8. Ultimately, there is no evidence to show that there was inadequate level of interpretation or that he was nervous or confused (Mahzar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188, Xiao v Minister for Immigration and Multicultural Affairs[2000] FCA 1472, Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230, Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507, Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1). Nor even if he was nervous or confused, that this led to a failure on the part of the Tribunal to provide the applicant with a proper opportunity pursuant to s.425 of the Act to be heard.

9. The applicant may assert before this Court that he has a lot of problems in India, as he asserted today, but that is a claim that was properly put before the Tribunal and which the Tribunal, for reasons which it plainly gave, rejected.  I cannot see that any of the grounds, particulars or complaints as put variously by the applicants before the Court are made out, nor can I otherwise discern jurisdictional error on the part of the Tribunal.  The applicants were given their opportunity to give evidence in support of their claims.  The Tribunal made an adverse credibility finding, which was open to it on what was before it.  In doing so, it addressed each aspect of the applicant’s claims.  I cannot discern jurisdictional error.  This application is therefore dismissed. 

10. It is appropriate that an order be made for costs.  I note that the applicant before the Court has said before the Court today that he is not working and that he cannot afford such an amount.  But, in my view, that is not a sufficient reason such that an order for costs should not be made.  The lack of funds, in my view, is not a sufficient reason.  The applicants have chosen to put an application before this Court, which is their right.  But with rights and the exercise of rights, come consequences.  One of the consequences is that if applicants are unsuccessful, in the normal course, an order for costs should be made in favour of the successful party.  I cannot see any reason in this case to depart from that.  I am going to make an order as to costs. 

11. As to the amount, I am guided by what is reasonable in all the circumstances.  It is, of course, a matter for an applicant, as to how an applicant chooses to pursue and press their application before this Court.  The application and amended application have required the first respondent’s legal representatives to engage in certain work to respond to this application.  I note, in particular, the preparation of multiple copies of the Court Book, the filing of a formal response, the preparation and filing of written submissions, the need to address not only grounds raised in the application but an amended application and additional complaints made in written submissions, and I note two appearances by a solicitor representing the first respondent in this matter.  In my view, in all these circumstances, the amount sought is a reasonable amount.  I will make the order in that amount.

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

Associate:  A Douglas-Baker

Date:  24 April 2008