SZNHU v Minister for Immigration and Anor (No.3)

[2009] FMCA 777

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNHU v MINISTER FOR IMMIGRATION & ANOR (No.3) [2009] FMCA 777

MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister refusing to grant a protection visa to the applicant – applicant is a citizen of Pakistan claiming fear of persecution for being a member of a particular religion – did not attend Tribunal hearing – letter written by Tribunal to applicant acknowledging receipt of application for review not an invitation to provide additional information under Migration Act 1958 (Cth) s.424 – no jurisdictional error.

Migration Act 1958 (Cth), ss.422B, 424A, 424B, 424C, 425, 426

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; 78 ALJR 992; [2004] HCA 32 followed
SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 followed

SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 followed
SZNAV & Ors v Minister for Immigration & Anor [2009] FMCA 693 not followed

NAVX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA FC 287 cited

Applicant: SZNHU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 556 of 2009

Judgment of: Scarlett FM

Hearing date: 31 July 2009

Date of Last Submission: 31 July 2009

Delivered at: Sydney

Delivered on: 31 July 2009

REPRESENTATION

The Applicant: In Person

Solicitor for the Respondents: Ms Dinihan

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,300.00.

3. I allow 5 months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 556 of 2009

SZNHU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The applicant is a citizen of Pakistan.  He asks the Court for judicial review of a decision of the Refugee Review Tribunal, dated 16 February 2009.  The Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) visa.  The applicant seeks orders remitting his application to the Refugee Review Tribunal for determination according to law, and that no action be taken by the first respondent, the Minister for Immigration and Citizenship, to remove him from Australia whilst the decision is pending.

2. He has set out in his application four grounds where he claims jurisdictional error.  They can be summarised as follows:

   (1)failing to consider an integer of his claim;

   (2)denial of natural justice in not using independent country information in the evaluation of his case;

   (3)failing to consider the applicant's claims of persecution on the basis of the membership of the Shia Muslim community;

   (4)The applicant satisfies the four key elements of the convention definition, this has not been considered by the Tribunal.

3. It has been explained to the applicant in Court that in order for the Court to grant relief it must be satisfied that the Tribunal decision is affected by jurisdictional error. 

4. The Minister has filed a response opposing the orders sought and has filed a written outline of submissions.  The applicant has not filed an outline of submissions but has attended Court and made oral submissions.

Background

1. The background to this matter is that the applicant arrived in Australia on 21 July 2008.  On 25 August in that year he applied for a Protection (Class XA) visa.  He claimed a fear of persecution on the basis that he is a Shia Muslim and he was targeted by hardliner Sunni Muslims in Pakistan.  He claimed that he been attacked in the mosque during prayers and was shadowed by hardliner Sunnis and he claims to have been kidnapped, bashed, beaten and tortured.

2. The applicant was invited to attend an interview with an officer of the Department of Immigration and Citizenship to take place on 29 October 2008.  Although he telephoned the department to indicate that he would attend the interview, he did not, in fact, attend the interview with the delegate of the Minister on 29 October 2008[1]. 

   [1] See Court Book at page 53

3. The delegate found:

   Due to the applicant's non attendance of a scheduled interview I have been unable to test the claims he has made.

4. The delegate went on to find:

   The applicant claims that he has been targeted by Sunni Muslims due to being a Shia Muslim.  Additionally, he claims to be the area secretary for a political organisation, the TNFJ, for whom he campaigned all over Pakistan. The applicant claims that he has been beaten, kidnapped and tortured by Shia Muslims.  As the applicant did not attend his scheduled interview I have been unable to test the assertions made by him in regards to his claims, and is to be satisfied of the voracity of his claims.  Consequently, I am not able to be satisfied that he has a fear of convention related persecution in Pakistan as claimed, or that he is a person to whom Australia has protection obligations[2].

   [2] See Court Book at page 54

5. The delegate refused the application for a protection visa on 6 November 2008.

Application to the Refugee Review Tribunal   

1. On the 30th of that same month, the applicant applied to the Refugee Review Tribunal for review of the delegate's decision.  On 1 December 2008, the Tribunal wrote to the applicant in a letter headed Acknowledgement of Application.  A note on the copy, at page 66 of the Court Book, indicates that the letter was posted on 2 December 2008.  

2. The Court Book does not show any correspondence having been received from the applicant after that date until on 17 December 2008, the Tribunal wrote to him inviting him to appear before a hearing of the Tribunal scheduled to be held on 13 February 2009.  I note that the application was posted to the post office box number in a country town in New South Wales that the applicant had given as his address for correspondence on his application to the Refugee Review Tribunal[3]. 

   [3] See Court Book at page 63 - 69

3. The applicant did not attend the hearing on 13 February 2009 and was recorded as a "No show" on RRT hearing record[4].

   [4] See Court Book at page 76

The Refugee Review Tribunal Decision 

1. The Tribunal signed its decision on 16 February 2009 affirming the decision not to grant the applicant a Protection (Class XA) visa.  The Tribunal decision record contains an error which, whilst not a jurisdictional error, is nevertheless a regrettable error which should not have occurred.  It would appear to show a failure on the part of the Tribunal to edit the text of the decision record before it was released.

2. Notwithstanding the fact that the applicant did not appear at the hearing, paragraph 20 of the decision record says:

   The applicant appeared before the Tribunal on 13 February 2009 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages[5].

   That is clearly wrong. In fact, in paragraph 26 of the decision the Tribunal said:

   The applicant did not appear before the Tribunal on today and at the time and place at which he was scheduled to appear. There has been no further contact or information from the applicant. Under these circumstances and pursuant to section 426A of the Act the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before it[6].

   [5] See Court Book at page 86

   [6] See Court Book at page 87

3. Quite clearly those two statements cannot stand together.  One of them is clearly wrong.  The RRT hearing record shows that the applicant did not appear and, indeed, the applicant confirmed in his submission to the Court today that he did not attend the hearing. 

4. It is most regrettable as I said, that the Tribunal decision record appears not to have been subjected to any form of proof reading to identify and correct such an obvious error.  The Tribunal decision under the hearing "Claims and Evidence" sets out the applicant's claims made in his protection visa application.  It refers to the fact that the applicant was invited to attend an interview at the department on 29 October 2008 but did not attend.  It refers to the fact that the applicant was invited to attend a hearing on 13 February, give oral evidence, and present arguments but did not attend. 

5. The Tribunal decision shows that the Tribunal had not heard anything further from the applicant and proceeded to decide the matter without taking any further action under the provision to enable the applicant to appear before it, under the provisions of section 426A of the Migration Act.

6. In the Tribunal’s Findings and Reasons the Tribunal was satisfied that the applicant was a national of Pakistan based on the photocopy of the applicant's passport.  The Tribunal found in a nutshell that the applicant had not provided sufficient evidence to support his claims. The Tribunals reasons are as follows:

   31.  The delegate's decision put the applicant on notice as to the deficiencies in his application yet no further evidence has been received. 

   32.  There are a number of issues requiring more detailed evidence the Tribunal would like to discuss with the applicant before it could be satisfied that he holds a genuine fear of persecution or that any fear that he claims to have in this regard is well founded.

   33.  The applicant claims to fear persecution because of his activities in support of Shia Muslims in his country.  Without the opportunity to question the applicant about his fears, the Tribunal cannot make findings of fact as to whether the applicant has a well founded fear of persecution in Pakistan for any convention reason. 

   34.  As the Tribunal finds the applicant has not provided sufficient evidence to support his claims it cannot be satisfied the applicant would have a well founded fear of persecution for a convention reason should he return to Pakistan[7].

   [7] See Court Book at page 88

Application for Judicial Review

1. The applicant commenced proceedings in this Court by filing an application and an affidavit in support on 9 March 2009. In his application he sets out four grounds of review: 

   (1) the Tribunal failed to consider an integer of the applicant's claim in failing to consider whether or not a Shia Muslim (regardless of their specific claims of affiliation or past persecution) in Pakistan was at risk of harm from hardliners Sunnis and not able to access effective protection.

   (2) Unfairness was involved in the failure of the Tribunal not to use the independent country information for matter of reasoning and evaluation of my case for protection visa, therefore, there was a denial of natural justice.

   (3) the decision of the second respondent is affected by jurisdictional error in that second respondent failed to consider my claims that the applicant feared persecution on the basis of the membership with Shia Muslim community. 

   (4) The applicant satisfied the four key elements of the convention definition as detailed in page 2 and 3 of the Tribunal decision.  The Tribunal has not considered this aspect and, therefore, committed factual and legal error.

2. The applicant has not filed a written outline of submissions but has attended Court today and made oral submissions.  He confirmed to the Court that he had not attended the Tribunal hearing and said that on the day of the hearing he had a fever and was unable to attend.  In reply to a question from the Court, he told the Court that he had not contacted the Refugee Review Tribunal to advise the Tribunal about that. 

3. The applicant's submissions were directed towards his request for an order that the Tribunal should hold a further hearing at which the applicant could attend and bring other documents to prove his case.  He told the Court that his son had left Pakistan and had gone to England, but his wife was still in Pakistan.  He told the Court that he had no work permit so that he cannot work in Australia.

Conclusions 

1. In dealing with the applicant's grounds the grounds should be considered in the context of the fact that the applicant did not attend the Tribunal hearing, and the Tribunal decision was based on the insufficiency of the evidence before it. As the applicant had not attended the interview with the Minister's delegate, the delegate's decision was also based on the insufficiency of the information before it.

2. Thus, in dealing with the applicant's first ground, a failure to consider whether or not a Shia Muslim in Pakistan was at risk of harm from hardliners Sunnis and not able to access effective protection, the ground is first of all misconceived in that, as Ms Dinihan, for the Minister, has correctly submitted, it is not the role of the Tribunal to consider the position of Shia Muslims in Pakistan in general but to make factual findings in relation to this particular applicant based on his specific claims.  The Tribunal did not have the evidence to make that finding as it made clear.  Just as the delegate did not have the evidence to make that finding. 

3. The second ground claims a denial of natural justice by the Tribunal for not using independent information.  There is, of course, no obligation on the Tribunal to use independent country information, and there is no obligation on the Tribunal to conduct its own independent inquiries as has been made clear by the High Court of Australia in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[8] and also by Bennett J in SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs[9].  In that decision her Honour said at [8]:

   It is well accepted that the powers of the Tribunal to make any investigation under the Act do not give rise to any mandatory investigation re Minister for Immigration and Multicultural and Indigenous Affairs ex parte Cassim (2000) 175 ALR 209 at [13].  It is for the appellant to present to the Tribunal material necessary for it to achieve the requisite satisfaction. 

   [8] (2004) 207 ALR 12; 78 ALJR 992; [2004] HCA 32

   [9] [2005] FCA 1811

4. It follows then that ground 2 must also be dismissed.  Ground 3 says that the decision of the second respondent is affected by jurisdictional error in that the second respondent failed to consider my claims at the applicant feared persecution on the basis of the membership if Shia Muslim Community.  This ground is similar to the first ground except that it deals with the applicant in particular rather than Shia Muslims in general.

5. The Tribunal did consider the applicant's claims based on the claims that had been made in the application for a protection visa, but found itself with insufficient evidence in order to be satisfied that the applicant that did, in fact, have a well founded fear of persecution for any convention reason.  The applicant's claims in the protection visa application was set out in full in paragraph 22 of the Tribunal decision on pages 86 and 87 of the Court Book.

6. In my view, the Tribunal did consider the applicant's claims but found itself unable to accept them due to the insufficiency of the evidence before it. 

7. Ground 4 claims that the applicant satisfies the four key elements of the convention definition as detailed in page 2 and 3 of the Tribunal decision that the Tribunal had not considered that aspect but committed factual and legal error.

8. It is clear that the Tribunal did consider four key elements of the convention definition of a refugee.  It set out those elements out in paragraphs 12 to 18 of the decision record at pages 85 and 86 of the Court Book.  And the Tribunal gave consideration to what little evidence there was before it, it was unable to be affirmatively satisfied that the applicant was entitled to a protection visa. All four grounds, therefore, have failed to be made out. 

9. Clearly, where an applicant is not legally represented, the Court should consider whether an arguable case of jurisdictional error has been made out. Section 422B of the Act makes it clear that as far as natural justice is concerned, division 4 of part 7 of the Act is an exhaustive statement of the natural justice hearing rule. Clearly, the Court must consider whether there has been a breach of sections 424, 424A, 425 or 426A, and other ancillary sections in division 4 of part 7.

10. The Court must also look at whether any other matters such as actual or apprehended bias have been made out.  There is no evidence of bias, either actual or apprehended. 

11. Section 424A of the Migration Act does not apply as the only information that was before the Tribunal was that given by the applicant and the Tribunal found that the information was insufficient for it to be affirmatively satisfied.

12. Section 425 has not, in my view, been breached. The Tribunal invited the applicant to attend the hearing and the notice of invitation under section 425A of the Act contains no error. The Tribunal gave the applicant the day on which, and the time and place, at which he was scheduled to appear. It was given to the applicant by one of the methods specified in section 441A, namely, it was sent to the post office box number that he gave as his address for correspondence.

13. The period of notice given was quite substantial in the circumstances.  The letter was dated, 17 September 2008; the hearing was scheduled for 13 February 2009.  That is significantly greater than the prescribed period of notice.  The letter also stated:

    Please note the Tribunal may make a decision without further notice if an applicant invited to appear before the Tribunal fails to attend the scheduled hearing[10].

    [10] See Court Book at page 69

14. That, in my view, is a statement of the affect of section 426A of the Act.

15. The Court should consider whether the Tribunal correctly exercised the discretion given to it under section 426A to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. It should be borne in mind subsection 424A(2) does allow the Tribunal to reschedule the applicants appearing before it or delay its decision in order to enable to applicant's appearance before it.

16. In this case, the applicant did not attend. He said that he was unable to attend but he did not advise the Tribunal as to any reason as to why he had been prevented from attending. In the absence of that invitation, the Tribunal was entitled to proceed as it did under the provisions of section of 426A of the Migration Act. The hearing was scheduled for the morning of Friday, 13 February. The decision was signed on 16 February, which was a Monday.

17. Had the applicant attempted to contact the Tribunal it would have been possible for a telephone call to be made or a fax message to be sent. I can take judicial notice of the fact that facsimile machines work on weekends, even if the Tribunal does not. In my view, there is no breach of section 426A of the Migration Act.

18. As to section 425 of the Act, the Tribunal made ready for a hearing and the hearing record shows that an interpreter in the Urdu language was available had the applicant attended. The reason why the Tribunal dismissed the application was due to the inadequacy of the material before it. That is the same reason as the delegate refused the application for a visa in the first place. There is no breach of section 425 of the Act.

19. There are many cases before this Court where applicants do not attend hearings of the Refugee Review Tribunal and do not give any explanation to the Tribunal as to why they have not attended.  In SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs[11], Hely J said at [16]:

    The RRT made it pellucidly clear in its letter of 12 March 2004 that it was unable to make a decision in the appellant's favour on the basis of the information before it, and as the Full Court observed in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA FC 287 when the appellant failed to accept the opportunity to elaborate on that information at the scheduled hearing, the inevitable consequence was the rejection of his application.

    [11] [2005] FCA 1306

1. The same situation is considered by Bennett J in SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs to which I have previously referred.  At paragraph 18 of that decision her Honour agreed with the observation of Hely J in SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs at [16], and her Honour quoted that paragraph in full. 

2. And, clearly, the inadequacy of information before the Tribunal was the reason why the Tribunal refused the application.  And the inadequacy was brought about by the non attendance of the applicant.

3. Now, there is one other issue that needs to be considered: whether there is a breach of subsection 424B(2) of the Migration Act in the acknowledgement letter sent to the applicant. The solicitors for the Minister, acting as model litigant, brought to my attention the recent decision of SZNAV v Minister for Immigration and Citizenship[12]. In that case, the Court found that the acknowledgement letter sent to the applicant following the lodging of the application for review by the Tribunal enlivened subsection 424(2) of the Act and failed to comply with subsection 424B(2) of the Act, that is that it failed to specify the prescribed period for response and that this constituted a jurisdictional error.

   [12] [2009] FMCA 693

4. In SZNAV at [44], Raphael FM found the error to be:

   In the instant case the applicant was told to provide the information immediately when he should have been told to provide it within 14 or 28 days.  Importantly, the Tribunal determined that it could not make a decision on the information alone on 25 July, eight days after the 17 July letter, therefore, before the regulated time period would have expired.

5. It has been put to me that the Court should not follow in SZNAV.  It is submitted that the Court should find it is clearly wrong.  The reasons why it is submitted that the Court should not follow SZNAV, are that the acknowledgement letter was not an invitation under section 424 of the Act, that it was not a request for additional information, and it is also submitted that even if jurisdictional error were established, relief should be withheld on a discretionary basis because the procedural irregularity had no affect on the Tribunal's Reasons and Findings.

6. What the Court must do is look at the acknowledgment letter which was sent by the Tribunal to the applicant, dated 1 December 2008, posted on 2 December 2008. Now, it is the case that section 424 of the Act has been amended and what the Court must look at is section 424 as it stood at the time.

7. The letter to the applicant is headed “Acknowledgement of Application”, and goes on to explain what the Tribunal would do next and what the Tribunal expected the applicant to do.  Importantly, the letter tells the applicant that the Tribunal has asked the Department of Immigration and Citizenship for the applicant's protection visa file, and on getting the file it would decide if the application for review could be considered.

8. If the application could be considered, a member of the Tribunal would then look at the information, that both the applicant and the department have given to the Tribunal and information about the applicant's country.  The letter told the applicant, after looking at the information the member would either make a decision in the applicant's favour or invite him to appear.  It also went on to say that the member might write to the applicant for more information or ask him to comment on information that he knew the Tribunal had.

9. The letter spoke about what the hearing was, why it was important, and then went on to tell the applicant what the Tribunal expected of him.  Apart from such administrative details as advising the Tribunal of any change of contact details and using his Tribunal file number the letter says:

   Immediately send us any documents, information, or other evidence you want the Tribunal to consider.  Any documents not in English should be translated by a qualified translator[13]. 

   [13] See Court Book at page 67

10. What this Court needs to do is consider whether that letter, with a request to the applicant to send information immediately constitutes a request for additional information under section 424 as it then stood, and if so whether it breached the requirements in section 424B of the Act.

11. I am of the view that the letter acknowledging the application is not a request for additional information under section 424 of the Act. The very text of the letter indicates that it was not the intention of the Tribunal that it should be an invitation under section 424. In particular, the letter says, under the heading "Will I Be Invited to Hearing of the Tribunal":

    After looking at this information the member may either make a decision in your favour or invite you to attend a hearing of the Tribunal.  The member may also write to you for more information, ask you to comment on information that the Tribunal has.

12. The very text of the letter indicates that the application had not gone to a Tribunal member. The letter was indicating that the application would go to a Tribunal member and would then be considered under the provisions of section 425 of the Act. The text of the letter supports the Minister's submission that the Tribunal had not then been constituted.

13. What the text of the letter also does is to advise the applicant that the member might write to him for more information or ask him to comment on information that the Tribunal had or presumably both. That is a simplified way of foreshadowing that the Tribunal may write to the applicant under the provisions of section 424 or 424A of the Migration Act.

14. Clearly, that text alone is an indication that the Tribunal did not consider that this letter was an invitation to provide additional information under the provisions of section 424. That, of course, is why the letter asked the applicant to send any information "immediately" and no prescribed period of was given. If it was a letter under section 424, of course, as was made clear in SZNAV, the prescribed period of time should be given.  Without the prescribed period of time being given and a date being referred to in the letter, clearly, the Tribunal could not rely on the provisions of subsection 424C(1) of the Act, which says:

    1. In a person (a) is invited under section 424 to give additional information; and (b) does not give the information before the time for giving it has passed, the Tribunal may make a decision on the review without taking any further action to obtain the additional information.

15. Clearly, section 424C could not be enlivened by a failure by an applicant to send in any documents "immediately". It appears to me that the text of the letter of itself indicates that it was certainly not the intention of the Tribunal to write to the applicant under the provisions of section 424 of the Act.

16. In any event, the applicant in this case did not send any information in. It may well be that he did not have any information to send at that stage. In any event, the Tribunal wrote to him on 17 December 2008 inviting him to a hearing. If this was the letter sent under the provisions of section 424 and the applicant had failed under section 424C to provide information in response to the written invitation, the Tribunal could have purported to make a decision on the review without taking any further action to obtain the additional information. It did not. It invited him to attend to a hearing.

17. In my view, these facts point squarely to my finding that the letter written to the applicant, dated 1 December 2008, was not intended to comply with the provisions of section 424 of the Act as it then stood. The section at that time said the following, under the heading, "The Tribunal May Seek Additional Information"::

    (1) In conducting the review, the Tribunal may get any information that it consider relevant.  However, if the Tribunal gets such information the Tribunal must have regard to that information in making the decision on the review. 

    (2) Without limiting subsection (1) the Tribunal may invite a person to give additional information.

    (3) invitation must be given to the person (a) except where paragraph (b) applies, by one of the methods specified in section 441A, or (b) if the person is in immigration detention by a method prescribed for the purposes of giving documents to such a person.

18. It would appear clear to me that the Tribunal was not intending to ask the applicant for additional information. It was asking him to put its case before it so that the Tribunal, once constituted, could consider the test set out in section 425 of the Act, which is to invite the applicant to appear before it to give evidence and present argument unless it considers that it should decide the review in the applicant's favour on the basis of the material before it, or the applicant consents to the Tribunal deciding the review without the applicant appearing before it or subsection 424(1) or (2) applies to the applicant.

19. As I said the letter was not a letter under section 424 of the Act. Even if I am wrong in this conclusion, and I am firmly of the belief that I am not, this procedural irregularity, to use the Minister's submission, appeared to have no affect on the way the Tribunal proceeded to hear the matter or the way the Tribunal decided. The Tribunal still invited the applicant to a hearing. It gave him plenty of notice to appear and he did not appear. He had plenty of time to send the information in. If he did not send it in immediately there is no detriment to him, but he sent in nothing to add to his case and did not attend the hearing. Where is the prejudice to the applicant? There is none.

20. In any event, the reason why the Tribunal decided to affirm the decision was because the information before it was insufficient and the information was insufficient because the applicant had neither provided any information or attended the hearing. In my view, even if the acknowledgement letter contravened subsection 424B(2), and I do not believe it did, that any such contravention did not provide the slightest detriment to the applicant and it would be inappropriate, in my view, to grant relief.

21. I am satisfied that the Tribunal decision, in any event, is not affected by jurisdictional error. I am satisfied, therefore, that the application should be dismissed.

22. There is an application for costs on behalf of the first respondent Minister.  The applicant has been unsuccessful in his claim and it is an appropriate matter for a costs order.  The applicant says that he is not working and he cannot afford to pay the amount sought.  I see no reason to doubt that.  That is not a reason not to make a costs order in the circumstances, but it is a matter to be considered in allowing time to pay. 

23. The amount sought is $4300, which is an amount less than the Court scale.  In my view, it is an appropriate amount in the circumstances. 

    
    

    I do propose to order that the applicant is to pay the first respondent's fixed in the sum of $4300.  I will allow five months to pay. 

I certify that the preceding sixty three (63) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  12 August 2009