SZOJH v Minister for Immigration

[2010] FMCA 445

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOJH v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 445

MIGRATION – Review of decision of Refugee Review Tribunal – Tribunal complied with obligations under s.425 – applicant lost entitlement to appear before Tribunal – Tribunal proceeded pursuant to s.426A – no bias or apprehension of bias – no obligation on Tribunal to conduct investigations – findings open to Tribunal – no jurisdictional error – application dismissed.

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

SZODX v Minister for Immigration & Anor [2010] FMCA 299
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265
Abebe  v Commonwealth [1999] HCA 14; 197 CLR 510
NAHI v Minister for Immigration & Multicultural Affairs [2003] FCAFC 10
Applicant NABD of 2002 v Minister for Immigration & Multicultural Affairs [2005] HCA 29; (2005) 216 ALR 1
NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287

Applicant: SZOJH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 894 of 2010

Judgment of: Nicholls FM

Hearing date: 24 June 2010

Date of Last Submission: 24 June 2010

Delivered at: Sydney

Delivered on: 24 June 2010

REPRESENTATION

The Applicant: In person

Appearing for the Respondents: Ms E Baggett

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application made on 23 April 2010 and amended on 10 June 2010 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 894 of 2010

SZOJH

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 under the Migration Act 1958 (Cth) (“the Act”) on 23 April 2010, and amended on 10 June 2010, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 31 March 2010, which affirmed the decision of a delegate of the respondent Minister to refuse the grant of a protection visa to the applicant.

Background

1. The Minister has put before the Court a bundle of relevant documents (Court Book – “CB”) from which the following background is derived.

2. The applicant is a citizen of India who arrived in Australia on 2 April 2009, and applied for a protection visa on 27 August 2009. (The application is reproduced at CB 1 to CB 34, with annexures.)

Claims to Protection

1. The applicant’s claims to protection were initially contained in a statement of claim attached to his protection visa application (CB 27 to CB 28).

2. He claimed to fear persecution because of his membership of the Harijan caste of Hindus, which he described as a lower class in India. He claimed that the lower castes experienced poor treatment from the “upper class” and “high-class families”. There were “reports” of Harijans being “burnt alive” and “houses were set on fire” where they spoke out against the class system. That because of “the factor of race” he would be denied employment opportunities.

3. The applicant claimed that his father’s farm was “boycotted” because the farm was situated near upper class Hindus. In response, the applicant formed a “social committee” to uphold rights for low caste Hindus. He “launched a strong protest” and “protest rallies” against the discrimination faced by low caste Hindus so that they may not “be treated as sweepers” and would not be forced to work in cleaning jobs.

4. He claimed the RSS and BJP (political parties), which he described as “Hindu Hard liners” are in power and that India: “… is a theocratic state which now firmly believes in the hard and fundamentally [sic] principles of Hinduism …” (CB 28).

5. The applicant claimed that people from other religions were burnt alive and that churches were bulldozed. He was “roped into many false cases”, beaten by upper class Hindus, unlawfully detained, and discriminated against. He claimed that he would be denied employment opportunities if he were to return to India.

6. In all he sought protection in Australia because of the discrimination and harm that he said he faced on the basis of his race and belonging to a particular social group.

7. It must be said that the applicant’s claims to protection bear a striking similarity to claims made in SZODX v Minister for Immigration & Anor [2010] FMCA 299 (“SZODX”), a case recently considered by me. The relevance for raising this will be made clear later in this judgment.

8. At [3]-[7] of SZODX the applicant’s claims to protection are set out in brief form. Remarkably, such phrases as “roped into many false cases”, the references to “boycotting” by the upper classes, the claimed ownership of a farm by a father, the forming of a social group to speak out about injustice are identical to the claims made by the applicant before the Court now. I will return to this matter later. 

The Delegate

1. The Minister’s delegate invited the applicant to an interview to be held on 3 November 2009 (CB 37). The applicant did not attend the interview. (See CB 44.3 and the Tribunal’s decision record at [23] at CB 70.)

2. The delegate accepted that the applicant was of the Harijan class of Hindus and gave him the “benefit of the doubt” by accepting that he experienced discrimination. However, he found that the applicant would receive effective state protection by the authorities in India (delegate’s decision record reproduced at CB 43 to CB 48.)

3. On this basis, the delegate refused the applicant a protection visa.

The Tribunal

1. The applicant applied for review by the Tribunal on 7 December 2009 (CB 49 to CB 52).

2. No additional claims were made to the Tribunal. The applicant’s address for receiving correspondence from the Tribunal was given as a post office box number at Parramatta, New South Wales (CB 51). In his application for review he elected that correspondence be sent to him at that address. It is important to note that he did not nominate or authorise any other person to receive correspondence on his behalf.

3. By letter dated 8 December 2009 the Tribunal wrote to the applicant acknowledging the application. On the evidence before the Court, it appears to have been sent by registered post to the applicant (CB 53). In particular, in that letter the Tribunal advised the applicant that he must immediately advise the Tribunal of any change of contact details, and that if he wanted to put any material or written arguments to it, he should do so as soon as possible.

4. On the only evidence available to the Court it appears that the letter was sent by prepaid post and directed to the address for service provided by the applicant.

5. By letter dated 23 December 2009 the Tribunal again wrote to the applicant. It invited him to appear at a hearing before it scheduled for 1 February 2010 (CB 54 to CB 55). Again, the letter was sent by registered post to the address for receiving correspondence. That is, the relevant post box address. The Tribunal told the applicant in this letter that it had considered the material before it, but could not make a decision favourable to him. It advised the applicant that he should contact the Tribunal if he was unable to attend, and noted the consequences if he were not to attend. Importantly, the letter enclosed a “Response to Hearing Invitation” form and directed the applicant to complete and return that form to the Tribunal by 13 February 2010.

6. The applicant did not return this “Response to Hearing Invitation”. Nor did he otherwise respond to the letter of invitation. (See Tribunal decision record at [27] at CB 70.)

7. Subsequently, it appears that the Tribunal became aware that the invitation to hearing letter dated 23 December 2009 gave an incorrect date by which the applicant could respond. In light of this the Tribunal decided to reschedule the hearing.

8. By letter dated 1 March 2010, the Tribunal sent another letter inviting the applicant to a hearing scheduled for 30 March 2010, again enclosing a “Response to Hearing Invitation” form with provision for the applicant to return the form by 17 March 2010 (CB 59 to CB 60).

9. The applicant returned this form on 29 March 2010 indicating that he would not attend the Tribunal hearing (CB 61 to CB 62).

10. Despite the applicant’s advice that he would not be attending the hearing, the Tribunal waited until the day of the schedule hearing before proceeding. The Tribunal then proceeded to make its decision pursuant to s.426A of the Act, given the applicant’s non attendance at the hearing.

11. The Tribunal found that it was not satisfied as to the applicant’s claims. It stated that (at [37] at CB 72):

    “There are insufficient particulars as to the detail of the applicant’s claims to enable the Tribunal to establish the relevant facts. Because he did not attend a hearing the Tribunal has been unable to explore the detail of his claims … or their truthfulness. Therefore the Tribunal is unable to be satisfied that any of his claims are true.”

    I agree with the Minister that this represents the critical explanation for the Tribunal’s decision. (See Minister’s submissions at [21].)

12. In all, the Tribunal was not able to satisfy itself that the applicant met the criterion set out in s.36(2), that is, that the applicant met the definition of “refugee” as set out in the UN Refugees Convention. It therefore affirmed the delegate’s decision to refuse a protection visa to the applicant.

Application to the Court

1. The applicant has put both an application and then, subsequently, an amended application before the Court. In the amended application there is one ground set out over three typed pages. It must be said that some aspects of the applicant’s complaints as set out in the amended application are difficult to discern.

2. For example, I note the second paragraph on the second page:

   “Again this is not enough that the RRT lays down in the invitation to appear , that ypur [sic] case shall be decided , but the wordings are such that the applicant was and is still sure that the RRT has made up its mind as it is evident from the letter . Although the administrative tribunals are free to hand over any decision , but even though they are bound by the process of law while dealing any matter .”

3. Further, it is not clear what relevance the applicant’s assertion that he is not a criminal has to reveal jurisdictional error on the part of the Tribunal. The Tribunal made no such finding.  The sentence that precedes that statement, it must be said, defies understanding.  That reads as follows:

   “The definition that any person who cannot be given the protection, can be given the protection.”

4. Nonetheless, putting these difficulties in comprehension to one side, the following can be discerned as complaints.

   1.In light of country information the Tribunal should have accepted his claim as being in need of refugee protection.

   2.The Tribunal did not properly, or fully, consider his claims.

   3.The Tribunal should have addressed the question as to whether the applicant fell within a particular social group.

   4.The Tribunal’s letter of invitation to hearing revealed that it had made up its mind at that time to find against the applicant.

   5.The applicant’s factual claims as set out in his initial statement reveal that he met the necessary elements to be recognised as a refugee. 

Hearing before the Court

1. At the hearing before the Court the applicant appeared in person. He was assisted by an interpreter in the Punjabi language. Ms E. Baggett appeared for the respondent Minister. I note also that written submissions have been filed for the Minister, in addition to the Court Book. The applicant has put nothing further before the Court. When given the opportunity to address the Court the applicant stated that he had nothing to add to his amended application. 

2. At that point I noted with the applicant the similarities between his case and that in SZODX. I noted that his reliance on a document (the amended application) which in part was difficult to comprehend, and which he explained had been drafted with the assistance of a friend, did not assist him in the presentation of his case before the Court. I sought then to direct the applicant’s mind to any complaints that he personally may have about the Tribunal’s decision, after confirming that this had been translated for him. 

3. I note incidentally that in his protection visa application the applicant indicates that he speaks, reads, and writes English (CB 12). When I sought to focus the applicant’s mind on the critical basis for the Tribunal’s decision, that is, his failure to attend the hearing leaving the Tribunal in a state of not being able to reach the requisite level of satisfaction, the applicant explained that he did not go to the Tribunal hearing because he had language difficulties and did not know that an interpreter could be provided.

4. It is not necessary for this Court to pursue that explanation because for whatever reason, the applicant did not attend. But even if it was because of some mistake on his part as to the availability of an interpreter, such conduct does not reveal error on the part of the Tribunal. Noting again the applicant’s previously stated indication of his capacity in the English language. 

Consideration

1. What can be said about the amended application is that all of the applicant’s complaints misunderstand the nature of the Tribunal’s decision. The relevant statutory regime, which primarily here is focused on ss.65 and 36(2) of the Act, required the Tribunal to reach a state of satisfaction that the applicant, in effect, meets the definition of “refugee” before a protection visa must be granted. Absent this level of satisfaction, the visa must be refused. (See SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] to [16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] to [5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73.)

2. The applicant made a statement of his claims to be a refugee. He provided this to the Minister’s department with his protection visa application. Following the refusal of his application he applied to the Tribunal for review of that decision. As I have already noted the applicant provided an address to which he wanted correspondence sent. At the time of making his application to the Tribunal, the applicant did not provide anything further to the Tribunal. 

3. As I have already referred to above, the Tribunal wrote to the applicant on three occasions. Relevantly, it is important to note, again, that on the first occasion, the Tribunal advised the applicant that if he wished to provide materials or written arguments for the Tribunal to consider then he should submit these as soon as possible. It is important to note that up until the making of its decision, nothing further was received from the applicant in support of his refugee claims.

4. In reality all that the Tribunal relevantly had before it from the applicant was his initial statement. As I have already noted the Tribunal wrote to the applicant on 1 March 2010. In this letter, the Tribunal advised the applicant that on the information before it, it was unable to make a favourable decision. For this reason, the applicant was invited to attend a hearing scheduled for 30 March 2010.

5. This letter was clearly sent pursuant to s.425(1) of the Act given that the Tribunal was unable to consider the review in the applicant’s favour as provided for in s.425(2)(a).

6. On what is before the Court the letter complied with all relevant statutory and regulatory requirements or in one instance there is no evidence to suggest that it did not. In compliance with s.425A the letter was sent by one of the methods set out in s.441A of the Act, namely, by pre-paid post to the last address provided by the applicant, as the recipient of the correspondence for the purposes of the review. That is, s.441A(4) of the Act. There is no direct evidence before the Court that the letter was sent within three working days. But the applicant makes no complaint in this regard to suggest otherwise.

7. The period of notice given in the letter is at least the prescribed period. (See ss.425A(3) and 441C(4) as to when the applicant is taken to have received the letter, and reg.4.35D(a). of the Migration Regulations 1994 (Cth).)

8. The letter contained a statement to the effect of s.426A. I say this with reference to s.425A(4). Namely, it told the applicant that if he were to fail to attend the hearing as scheduled, the Tribunal may proceed to a decision without taking further action to enable him to appear before it.

9. As I stated earlier, the letter enclosed a “Response to Hearing Invitation” form. The letter directed the applicant to complete the form and return it to the Tribunal. The applicant completed the form and advised the Tribunal that he did not wish to attend the hearing. At the relevant place the form contained the following (CB 61.3):

   “Please note that if any review applicant selects ‘No’ in response to the following question, the Tribunal may make a decision on the application for review made by that person without taking any further action to allow or enable that person to appear before it.”  

   This was received by the Tribunal on 29 March 2010 (at CB 61).

10. I am satisfied that in all these circumstances the applicant consented to the Tribunal proceeding to make a decision without him appearing before it. This is said with reference to s.425(2)(b) of the Act. Given the provision in s.425(3) the applicant therefore lost his entitlement to appear before the Tribunal as set out in s.425(1).

11. In any event as I also said previously the Tribunal did wait until the scheduled day before proceeding to a decision. On that day the applicant did not appear at the scheduled hearing.

12. Therefore, on either of these two bases the Tribunal was entitled to proceed in the way that it did pursuant to s.426A.

13. In his amended application the applicant complains that by its letter of invitation to hearing the Tribunal had already made up its mind.

14. The extent of the applicant’s complaint is not exactly clear. Nor was the applicant able to assist the Court given that the document, as he said, was drafted with the assistance of a “friend”. 

15. But to the extent that this may be some explanation in addition to the explanation that he gave the Court, and to which I have already referred, as to why he did not wish to attend the hearing, it could be seen in context as a complaint or inference that the Tribunal did not bring an open mind to its consideration of the applicant’s claims.

16. This may be some inference to assert in bias, or the apprehension of bias on the part of the Tribunal. If this is what the applicant’s friend sought to convey then what must be immediately understood is that such serious charges that go to the integrity of the Tribunal member must be clearly made, let alone distinctly proven (Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [43] to [44], Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872, Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).

1. It may be, nonetheless, that the complaint is directed to the wording of the Tribunal’s letter that: “The Tribunal has considered the material before it but is unable to make a favourable decision on this information alone” (CB 59.4)

2. If this is what the applicant’s friend sought to direct the Court’s attention to I cannot see that the Tribunal’s letter suggests a closed mind. The Tribunal was clearly expressing a preliminary view based on the material before it. What must be understood by whoever drafted the applicant’s amended application is that the Tribunal is not required to uncritically accept the applicant’s written statement as being sufficient to be satisfied that the applicant meets the definition of “refugee” (Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 per Beaumont J).

3. I note that additionally this is recognised by the very provisions of s.425 itself. The provision in s.425(2) contemplates a situation where the Tribunal can consider the applicant’s claims at a time prior to a hearing for the purpose of deciding whether the matter can be resolved in the applicant’s favour at that time.

4. In issuing the invitation to hearing, the Tribunal clearly considered the provisions of s.425(2)(a). I say this given the very language of its letter. It was unable to reach the level of satisfaction to decide the review in the applicant’s favour.

5. On its own, this does not reveal that the Tribunal had made up its mind about the review as a whole. The Tribunal plainly told the applicant that he could come to the hearing to present arguments and give evidence in relation to the issues in his case. On its face, this shows a willingness on the part of the Tribunal to consider these arguments and any evidence provided.

6. There is clearly an insufficient basis on which to allege bias or the apprehension of bias. In proceeding to its decision, and despite the opportunity provided to him both by the Tribunal’s advice to send in material and written arguments, and the invitation to a hearing, all that the Tribunal had before it when it came to make its decision was the applicant’s initial statement and what, perhaps, was contained in his protection visa application itself.

7. The Tribunal reasoned that there was insufficient particularity as to the detail of the applicant’s claims, such that it could make relevant findings of fact to reach the requisite level of satisfaction on what was before it. These findings and its ultimate conclusion were, at least, reasonably open to the Tribunal to make.

8. I note that proceedings before the Tribunal are said to be inquisitorial.  The Tribunal, however, is not in the position of what has been described, as a contradictor. As was said by Gummow and Hayne JJ in Abebe v Commonwealth [1999] HCA 14; 197 CLR 510, it is for the applicant before the Tribunal to advance his case in support of the contention that he has a well founded fear for a Refugee’s Convention reason. It is certainly not for the Tribunal to go looking for favourable cases or circumstances to assist the applicant as appears to be suggested by the amended application currently before the Court.

9. It must be stressed that in the current case the applicant was given the opportunity to put forward his claims and to present his evidence. Simply, on what was before it the Tribunal could not be satisfied that the applicant met the definition of refugee and was therefore owed Australia’s protection.

10. The amended application also complains that the Tribunal did not consider country information which was favourable to the applicant’s case.

11. Despite opportunity the applicant did not put any country information before the Tribunal for it to consider. At best, in his statement he claimed that the treatment given to low caste Hindus and the discrimination they face could: “… be verified from independent sources” (CB 27.6).

12. I cannot see any obligation on the Tribunal in these circumstances to conduct an investigation to find independent sources which may verify the applicant’s general claims. 

13. There was some country information before the Tribunal as a result of references to it in the delegate’s decision. As set out at [19] of its decision record the Tribunal noted that it had regard to the material referred to in the delegate’s decision as well as other material available to it. 

14. As the Minister’s submissions correctly in my view submit whether the Tribunal has regard to country information and to which information it has regard, is a matter for the Tribunal. Further, it is well settled that the weight to be given to any country information is for the Tribunal to determine (NAHI v Minister for Immigration & Multicultural Affairs [2003] FCAFC 10 at [11]-[13], Applicant NABD of 2002 v Minister for Immigration & Multicultural Affairs [2005] HCA 29; (2005) 216 ALR 1 at [8] per Gleeson CJ, NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419 at [81]-[84]).

15. But in the current circumstances, notwithstanding whatever else may have been before it, the reason for the Tribunal’s decision was that in the absence of particulars as to the details of the applicant’s case, particularly given his unexplained decision not to attend the hearing, the Tribunal could not be satisfied that the applicant had a well founded fear of Convention related persecution. No error is revealed in these circumstances.

16. The amended application also complains that the Tribunal did not have regard to, or did not consider, that he was a member of a particular social group.

17. This must be rejected. The Tribunal’s summary of the applicant’s claims as extracted from the only statement that the applicant put before it reveals that the Tribunal understood the applicant’s claim in this regard. The Tribunal said (at [22] of its decision record):

    “… He was persecuted and discriminated against on the bases of his race, caste and belonging to a particular social group …”

18. It is important to note that the Tribunal did not just reproduce the applicant’s statement in full in its decision record. This was not some formulaic acknowledgement of his claims. The Tribunal’s summary of the applicant’s statement reveals that it did engage in a process of what could be described as an “active intellectual” consideration. In my view, on any plain reading of its summary the Tribunal accurately reflected the applicant’s statement of his claims. 

19. In all, this complaint again fails to disclose error and it must be said again misconceives both the statutory tasks set for the Tribunal and the Tribunal’s relevant reasoning. That is, reasoning as to not achieving the requisite level of satisfaction.

20. The applicant’s complaint that the Tribunal did not properly or fully consider his claim fails for the same reason. The Tribunal did understand the applicant’s claims. 

21. In the state that these were presented to it the Tribunal could not be satisfied that the applicant was a refugee. This was open to the Tribunal on what was before it.  No error is revealed.

22. As for the remainder of the amended application, as the Minister again in my view correctly submits, the applicant seeks to engage the Court in impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259).

23. For the applicant’s benefit I note that having made his application, he has perhaps not understood that he must bear at least some responsibility for pressing and pursuing his claims before the Tribunal. In the current case, having made his application for review of the delegate’s decision, the applicant did nothing further to press his case. 

24. The applicant was clearly put on notice by the Tribunal of various opportunities available to him to further explain and enhance his claims. The applicant was provided with the opportunity to attend a hearing before the Tribunal in circumstances where the Tribunal properly advised him that on what had been put before it, it was unable to make a decision favourable to him.

25. For whatever reason, either the one which the applicant advanced before the Court, or the one that appears to arise from the amended application, the applicant did not attend the hearing before the Tribunal. It is difficult therefore to understand what other outcome the applicant could have expected from the Tribunal. As has been relevantly observed by the Full Court in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287, the applicant’s conduct could only lead to the inevitable outcome that the Tribunal would refuse his application.

26. It must be said that while it is the applicant’s right to subsequently come to this Court, the failure to properly comprehend his own contribution to his lack of success before the Tribunal, and the putting of what I can only describe as a deficient amended application before the Court, is of concern. 

Conclusion

1. But whatever those circumstances what remains is this. For the applicant to succeed in his application as amended before the Court, at the very least the Court would need to discern jurisdictional error in what the Tribunal has done. No such error is revealed.  I will therefore make an order dismissing the application as amended.

Costs

1. The first matter that I need to consider is whether the order for costs should be made. I note that the Minister asks for this order in the normal course of events. As is often said costs follow the event.

2. In the current case, there is nothing before the Court to persuade me such that the order should not be made. The applicant says that he does not have money to pay any costs. While it is of course the applicant’s right to come to this Court there are, as with the exercise of all rights, quite often consequences. A lack of funds is not a sufficient reason not to make the order. 

3. Second, as to the amount I note first that it is well within the amount that the Minister could have sought consistent with the relevant Schedule to the Rules of this Court. While I consider that Schedule to be a useful guide, quite separately, I am satisfied that having regard to the actual work that has been done by the Minister’s solicitors in this matter the amount sought is a reasonable amount. I will make the order in the amount sought.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date:  14 July 2010