SZNWO v Minister for Immigration

Case •

[2009] FMCA 1198

•

24 November 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNWO v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1198
MIGRATION – Review of decision of Refugee Review Tribunal – information fell within exceptions – no obligation to give applicant information – inconsistencies in evidence not “information” – Tribunal “sufficiently indicated” dispositive issue – applicant seeking impermissible merits review – no general obligation on Tribunal to further investigate – no bias or the apprehension of bias – weight attributed to evidence a matter for Tribunal – no jurisdictional error – application dismissed.
Migration Act 1958 (Cth), ss.422B, 424, 424A, 424AA, 425
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572
VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
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
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46
SZMMP v Minister for Immigration and Citizenship [2009] FCA 233
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Minister for Immigration & Citizenship v SZNAV [2009] FCAFC 109.
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
VFAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; [2003] 131 FCR 102
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 121
SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592
WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Applicant: SZNWO
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 2131 of 2009
Judgment of: Nicholls FM
Hearing date: 24 November 2009
Date of Last Submission: 24 November 2009
Delivered at: Sydney
Delivered on: 24 November 2009

REPRESENTATION

Appearing for the Applicant: In person
Solicitors for the Applicant: -
Appearing for the Respondents: Ms E Warner Knight
Solicitors for the Respondents: Australian Government Solicitor

ORDERS

  1. The application made on 2 September 2009, and amended on 2 November 2009, is dismissed.

  2. The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2131 of 2009

SZNWO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

  1. This is an application made on 2 September 2009, and amended on 2 November 2009, made under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), which was made on 6 August 2009, and which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

  1. The applicant is a national of India, who arrived in Australia on 23 February 2009.  He applied for a protection visa on 4 March 2009.  The application is reproduced in the bundle of relevant documents which the Minister has put before the Court (Court Book – “CB”) at CB 1 to CB 32.

Claims to Protection

  1. In a statement provided with his protection visa application (CB 2 to CB 6) the applicant claimed that he originally came from the state of Tamil Nadu, India, but that, for some years prior to August 2007, he worked in Malaysia. He is of Muslim faith. On return to India, he opened a shop. On 6 December 2007 a political rally was held near his shop, and persons whom he described as “RSS people” (Rashtriya Swayamsevak Sangh – which I understand to be a Hindu based organisation) damaged some of his goods.  He was subsequently taken to a police station and accused of supplying weapons to some of those involved in this rally, or riot. 

  2. In January 2008 he went to Malaysia. He borrowed some money to open another shop. There was a dispute with the lender as to the repayment of capital and interest, and he was threatened. He subsequently found out that this lender was the leader of a Hindu organisation in Malaysia. The applicant claimed to fear harm in Malaysia from this Hindu leader. Although he had had a visa to work in Malaysia, he had no right of return.

  3. The applicant claimed to fear harm from the RSS in India. The fear of harm was said to be both for political and religious reasons. That is, as a Muslim who belonged to the “TMMK” (Tamil Nadu Muslim Munnetra Kazhagam), a political group. It was on this basis, therefore, that he sought protection in Australia. 

The Delegate

  1. The applicant attended an interview with the delegate on 1 May 2009. He subsequently submitted a letter from the TMMK, which asserted that he had been an active member of that organisation, and that he had taken part in the protest in October 2007 against the demolition of a temple. He claimed that the RSS had attacked him as a result (CB 77 to CB 78).

  2. The delegate was not satisfied with key aspects of the applicant’s factual account as to why he feared persecutory harm in India. Although it did not appear that the applicant had a right of return to Malaysia, the delegate also found that the applicant’s evidence in relation to the fear of harm in Malaysia to be unclear and evasive (CB 95 to CB 97).

  3. In any event, the delegate refused the application. 

The Tribunal

  1. The applicant applied for review by the Tribunal on 5 June 2009


    (CB 101 to CB 104). He attended a hearing before the Tribunal on 20 July 2009 (CB 111). The Tribunal’s account of what occurred at the hearing is contained in its decision record. ([27] to [57] of that record at CB 142 to CB 146.) It also appears that the applicant submitted yet another letter from the TMMK. (See [28] of its decision record at CB 142, and CB 114.)

  2. The Tribunal accepted that the applicant was a Muslim from Tamil Nadu, and that his claims should be assessed as against his country of nationality, that is, India. The Tribunal accepted that the applicant was unable to return to Malaysia ([82] to [83] at CB 153).

  3. From a plain reading of its decision record, the Tribunal understood the applicant’s claims to be that he feared persecutory harm in India on the basis of political opinion and religion and, in particular, that he feared harm from the RSS and the police ([84] at CB 153).

  4. The central and critical finding of its analysis is that the Tribunal found that the applicant was not a witness of truth. It gave reasons for this, arising out of various inconsistencies in his evidence and claims, and his inability to explain these inconsistencies ([86] to [89] at CB 154). 

  5. The Tribunal also gave no weight to the documents submitted by the applicant because of the finding as to his credibility ([90] at CB 154).

  6. The Tribunal rejected the factual basis of the applicant’s claim to fear harm as it related to claimed events in Tamil Nadu. It found that it was satisfied that the applicant did not flee India fearing Convention related harm. The Tribunal also considered whether, as a Muslim from Tamil Nadu, the applicant would suffer persecutory harm on return. It found that the chance of such harm occurring was remote. The Tribunal, therefore, affirmed the delegate’s decision ([91] to [103]). 

Amended Application Before the Court

  1. By way of amended application, the applicant puts forward three grounds:

    “1. The Tribunal did not give to the applicant before the hearing the independent information that it had about TMMK. The Tribunal used this information (RRT decision record pages 11 to 18). This was against section 424A of the Migration Act 1958.

    2. The Tribunal member had failed to honour his undertaking. The requirement to put information to an applicant is contained in S424A which relevantly states:

    424A applicant must be given certain information

    1. Subject to subsection (3), the Tribunal must:

    a) Give to the applicant, in the way that the Tribunal consider appropriate in the circumstances, particulars of any information that the Tribunal consider would be the reason, or a part of the reason, for affirming the decision that is under review; and

    b) Ensure, as far as is reasonably practicable, that the applicant understand why it is relevant to the review and

    c) Invite the applicant to comment on it.

    In my case that the Tribunal ignore its undertaking to give me opportunity to make written submission about the inconsistencies in my evidence; therefore the Tribunal had erred by denying me procedural fairness in respect of that issues. 

    3. The Tribunal failed to comply with s424 of the Migration Act 1958.

    a) The invitation was not given in accordance with ss 424(3)(a) and 424B of the Migration Act:

    i) The invitation did not specify the way in which the additional information may be given.

    ii) The invitation did not specify the period within which the information was to be given.”

Hearing Before the Court

  1. Before the Court the applicant appeared in person.  He was assisted by an interpreter in the Tamil language.  Ms E Warner Knight appeared for the first respondent. Written submissions drafted by Ms Warner Knight have been filed on behalf of the first respondent. 

  2. When I directed the applicant’s attention to his amended application, he told the Court that it had been drafted by a “friend”, and that he was not sure whether the friend was a lawyer or not. The applicant told the Court that he had “told his case” to the Tribunal, but that it was rejected, and that he wanted “mercy” from the Court. 

Consideration

Ground One

  1. In ground one of the amended application the applicant complains that the Tribunal did not give him information about the TMMK before the hearing, which was information on which it relied. He claims that this was in breach of s.424A of the Act.

  2. Ms Warner Knight submits that this ground is misconceived. I can only agree.

  3. I note that this information is generally reproduced by the Tribunal in its decision record at paragraphs 58 to 80. This information is clearly information that is not about a person. It is, as sometimes described, non in personam information, and therefore falls within the exception set out in s.424A(3)(a) from the obligation in s.424A(1). (See Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 at [71], VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [12] to [14], and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [22].)

  4. Further, I note that this is a case to which s.422B of the Act applies, making the matters that are set out in Division 4 of Part 7 of the Act (that is, the part in which s.424A appears), the exhaustive statement of the natural justice hearing rule, of course absent bias (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59] to [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]).

  5. In these circumstances, the Tribunal had no other procedural fairness obligation (for example, at common law) to give the applicant such information for comment whether before or after the hearing. I note, in particular with reference to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162, that s.424A does not impose any such temporal limitation. To the extent that what the High Court said in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) may imply the contrary, that point was not decided in SZBYR.

  6. In short, therefore, ground one does not succeed. Whether the Tribunal relied on the information about the TMMK is not the issue. The issue is that the Tribunal was under no obligation to give the applicant this information before the hearing, pursuant to s.424A of the Act.

  7. Ground one, therefore, does not succeed. 

Ground Two

  1. Ground two in the amended application repeats the latter part of ground one in the originating application. In the absence of any further explanation by the applicant, in my view, it can therefore be properly understood as a complaint that the Tribunal failed to give the applicant the opportunity, in writing, to comment on inconsistencies in his evidence and that this was said to be a failure pursuant to s.424A of the Act.

  2. In short, the answer to this ground is that inconsistencies in the applicant’s evidence are not “information” for the purposes of s.424A(1). See SZBYR, particularly at [17] and [18], and the reference there, with approval, to what was said by a Full Federal Court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471.

  3. The applicant also complains in his amended application that the Tribunal gave him an undertaking to give him an opportunity to make written submissions about these inconsistencies in his evidence.  The applicant has not put any evidence before the Court to support this claim regarding an undertaking. 

  4. The Tribunal’s account of what occurred at the hearing remains unchallenged before this Court by way of any evidence to the contrary.  If the applicant had sought to challenge the Tribunal’s account, then opportunity had been given to him at the first court date, by relevant orders made, for him to have put evidence (for example, a transcript of the hearing) before the Court. In these circumstances, this Court cannot make inferences as to what may have occurred at the hearing, contrary to what the Tribunal has itself has reported to have occurred (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241).

  5. It is very clear from that account that the Tribunal put these inconsistencies to the applicant at the hearing. (See [54] and [55].) The Tribunal explained to the applicant what it was doing in the following terms as set out at [53]:

    “I put to the applicant pursuant to s.424AA information that I considered would be the reason, or a part of the reason, for affirming the decision under review. I said that he had the opportunity to comment on or to respond to the information now or he could ask for additional time to comment on or to respond to the information or he could request an adjournment to give him additional time.”

  6. There is nothing before the Court to show that the applicant sought any additional time. To the contrary, it appears that the applicant chose the option of responding orally at the hearing. Again, a plain reading of paragraphs 54 to 57 of the Tribunal’s decision reveals nothing to support any proposition that the applicant sought any additional time, or that any undertaking had been given to him.

  7. I should also just note that, in any event, as Ms Warner Knight submits, s.424AA is relevantly no more than a method by which the Tribunal may comply with its obligation under s.424A(1). (See SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46, SZMMP v Minister for Immigration and Citizenship [2009] FCA 233.)

  8. The relationship between these two sections has been described as facultative and complimentary. I note also that s.424A(2A) provides that compliance with s.424AA discharges the obligation pursuant to s.424A. What the Tribunal described as “s.424AA information”, at paragraph 53 of its decision record was either not information for the purposes of s.424A (see above), or fell within one of the exceptions to the obligation set out in s.424A(3).

  9. There is one exception to what I have just said. The Tribunal put to the applicant the following: 

    1)Information in his protection visa application. This comes within the exception in s.424A(3)(ba).

    2)Evidence he gave the Tribunal at the hearing. This comes within the exception in s.424A(3)(b).

    3)The TMMK letters that he gave to the Minister’s Department and the Tribunal for the purposes of the review. The latter certainly falls within s.424A(3)(b), and the former appears to have been resubmitted to the Tribunal. (See [28] of the Tribunal’s decision record, and the specific reference to documents, plural.) In any event, it would fall within the exception either set out in s.424A(3)(b) or (ba).

    4)Inconsistencies are not “information” for the purposes of s.424A(1) (SZBYR).

    5)What the applicant told the delegate at the interview, does not fall within any of the exceptions in s.424A(3). The use of s.424AA was therefore appropriate for the Tribunal to have discharged its obligation pursuant to s.424A(1) (s.424A(2A)).

  10. Apart from the last item that I have cited above, there is strictly no need for the Tribunal to have put this information to the applicant pursuant to s.424AA, given what I have said above about the complimentary and facultative nature in the relationship between ss.424A and 424AA. (See [30] and [32] above.)

  11. But it is also the case that no error going to jurisdiction arises in the Tribunal having done so.

  12. I should note that, given the large number of Refugee Review Tribunal decisions that I have seen in recent times, and since the introduction of s.424AA of the Act, there appears to be a trend discernible of Tribunal Members putting information to applicants at the hearing that is either not “information” for the purposes of s.424A, or is information that falls within one of the exceptions in s.424A(3), yet still invoking s.424AA.

  13. A clear distinction needs to be drawn between what is information that must be put to an applicant to discharge the obligation pursuant to s.424A at a hearing, employing the facility provided by s.424AA, and meeting procedural fairness obligations at the hearing, pursuant to s.425 of the Act, as explained by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”).

  14. That is, of course, that an applicant before the Tribunal, in effect, is entitled to know the determinative issue, or issues, that are dispositive of his or her application. If these are different to what was determinative before the delegate, then the Tribunal is obliged to put, or as was said in SZBEL, at paragraph 47, to “sufficiently indicate” these issues at the hearing and, thereby, give the applicant the opportunity to comment or explain.

  15. In my view, when properly understood in this way, what the Tribunal did, for the most part, putting aside what the applicant had told the delegate at the interview, at paragraphs 53 to 57 of its account of the hearing, was not really to give the applicant the opportunity to comment on information that would be the reason, or a part of the reason, for affirming the decision under review, but had the effect of putting or “sufficiently indicating” to the applicant its concerns about inconsistencies in his evidence relating to the factual account of what he said had occurred in India. 

  1. In my view, therefore, the Tribunal put the applicant on notice and gave the applicant the opportunity to comment on what is clearly the central and determinative issue in the disposition of the review, namely, that the applicant was not a witness of truth in giving his factual account. That is, that the Tribunal rejected the applicant’s factual account of what he said had occurred in India and, in my view, the Tribunal thereby met its procedural fairness obligation pursuant to s.425 of the Act.

  2. There was no error in the Tribunal saying that it put information to the applicant pursuant to s.424AA because, in spite of what can be described, with respect, as a misdescription, the Tribunal achieved the objective of providing procedural fairness to the applicant pursuant to s.425 as it was required to do.

  3. No error is therefore revealed. The Tribunal complied with the remaining obligation under s.424A(1) in relation to what the applicant told the delegate at the interview, and properly used s.424AA to achieve the objective of discharging its obligation pursuant to s.424A(1) in that regard.

  4. As I said earlier, in relation to the latter part of ground two in the amended application, I cannot see any evidence that the Tribunal provided the applicant with an undertaking to give him the opportunity to provide written submissions on these matters. This ground is not made out.

Grounds Three

  1. Ground three in the amended application asserts that the Tribunal failed to comply with s.424 of the Act. This mirrors ground two in the original application, which, in essence, asserts a breach of s.424 of the Act.

  2. As Ms Warner Knight submits, there is nothing before the Court to show that the Tribunal requested information such that it could be said that there was a breach of s.424(3)(a) and s.424B, as asserted in the amended application, and the originating application.

  3. The reference to “additional information” is, as Ms Warner Knight submits, a reference to a version of s.424 that is not relevant to this Tribunal decision.

  4. I cannot let this pass without commenting that this, unfortunately, is again an illustration of an unrepresented applicant who relies on a “friend” to provide grounds, and often submissions, in matters of this type. In my view, this is an example of formulaic grounds being presented, without any real understanding of their relevance to the applicant’s particular circumstances. 

  5. I should also note that whether such “friends” are motivated by the best of intentions, or otherwise, it is of no help to an applicant who comes before this Court claiming error on the part of the Tribunal to provide what I can only describe in this case as the largely misconceived grounds of the amended application. 

  6. It is clear that the applicant’s friend has not, perhaps, caught up with the change in the language of s.424 and nor, indeed, for that matter, the Full Federal Court decision in Minister for Immigration & Citizenship v SZNAV [2009] FCAFC 109.

  7. In any event, ground three in the amended application does not assist the applicant. 

Original Application: Ground Three

  1. Given that the applicant appears unrepresented before the Court, I also note that ground three in the original application asserts that the applicant meets the Convention definition of “refugee”, and that the Tribunal committed a legal error in incorrectly finding otherwise. In the absence of anything further, this does not rise above a request for impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

Original Application: Ground four

  1. Ground four in the original application asserts bias on the part of the Tribunal in that it is said that the Tribunal failed to investigate the applicant’s claims. It can only be said that this is a very, very serious allegation to make against a Tribunal member. It goes to the very integrity of that member. But it is the case that no evidence and, indeed, no argument has been put before the Court to support this assertion.

  2. The test for bias is well established.  The relevant authorities make it very clear that it must be clearly made and distinctly proven (Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43] to [44], Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872, Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425). It is a rare case that it can be made out with reference only to the Tribunal’s decision record alone.

  3. On what is before the Court, such a claim cannot be properly asserted, let alone made out (VFAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; [2003] 131 FCR 102).

  4. As to the reference of failure to investigate, there is no general obligation on the Tribunal to make any further investigation that I can see in this case. The applicant does not say with any specificity what the Tribunal failed to investigate. If what he means is that it failed to make inquiries, then, as have said, I cannot see that there is any obligation on the Tribunal to have done so (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 121 at [21] to [22] per Gummow and Hayne JJ; see also SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at [46] per Allsop J; WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 at [24]).

  5. To the extent that it can be said that there is any specificity to this complaint, the complaint is that the Tribunal failed to investigate the grounds of persecution in India.  Any plain reading of the Tribunal’s decision record reveals that the Tribunal fully discharged what it was jurisdictionally charged to do in this case. That is, to consider the applicant’s claims as made. This plainly included the applicant’s claim to fear persecutory harm in India. The Tribunal rejected the applicant’s claims in this regard because it found him not to be truthful. The Tribunal’s findings and its reasons that it gave for that finding were open to the Tribunal to make on what was before it. 

  6. Nor can I see error in the Tribunal’s assessment of what can be described as the applicant’s general situation as a Muslim from Tamil Nadu returning to India.

Other Considerations

  1. For the sake of completeness, I also note that no error is revealed in the Tribunal’s dealing with the applicant’s letters from the TMMK.

  2. It is clear (as set out at [90] in the Tribunal’s decision record) that the Tribunal placed no weight on these documents because it found the applicant’s credibility to be so damaged.  I note that the weight to be attributed to evidence is a matter for the Tribunal. It appears that the Tribunal took the view, a view which was open to it, that the applicant’s credibility had been so damaged that no amount of corroborative evidence could undo that damage. (See Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20 /2002 [2003] HCA 30; (2003) 198 ALR 59.) It was open for the Tribunal to proceed in that way.

  3. Before the Court the applicant submitted that he “told” his case to the Tribunal, but that the Tribunal rejected it. Unfortunately for the applicant, it is the case that the Tribunal does not have to believe anything or, indeed, everything that an applicant says to it. (See Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437.)

  4. The Tribunal gave cogent reasons for its adverse findings as to the applicant’s credibility (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). Its findings were open to it on what was before it. Ultimately, the applicant’s general request (if I can call it that) for “mercy” and the request for this Court to intervene, and assist him, cannot be met. As Ms Warner Knight, in my view, correctly submitted, it is not the job of this Court to review the factual findings made by the Tribunal and to substitute its own findings for those of the Tribunal.

Conclusion

  1. In all, therefore, it is the case that for the applicant to succeed before the Court, I would need to (at the very least) discern jurisdictional error in the Tribunal’s decision. I cannot discern such error.  I will, therefore, make an order dismissing the application, and as amended.  

Costs

  1. The Minister seeks costs in the amount of $5,000.

  2. The first question that I need to consider is whether a costs order should be made in this matter. The applicant told the Court that he is not employed, and does not have money. Unfortunately for the applicant, this is not a sufficient reason for a costs order not to be made. It is, of course, the applicant’s right to come to this Court, and the applicant is entitled to make his application. But, as it is the case for the exercise of all rights, there are consequences. One of the consequences in this case is that the Minister has been put to the expense of responding to an application that, ultimately, has not been made out. In all the circumstances, I cannot see that there is any reasonable argument to say that the costs order should not be made.

  3. As to the amount, the test, of course, is one of what is reasonable in the circumstances. I take the view that I am not strictly bound by what is set out in the relevant Schedule to the Rules of this Court. But, as a general guide as to what may be reasonable, the Schedule provides that the Minister may seek an amount of $5,865 for matters of this type. The Minister seeks an amount less than that.

  4. I am satisfied in all the circumstances of this case that, having regard to the actual work that has been done by the Minister’s legal representatives in responding to the application, the amount sought is a reasonable amount. I will, therefore, make the order as sought on behalf of the Minister.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date:  16 December 2009

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