SZQOT v Minister for Immigration
[2012] FMCA 84
•10 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQOT v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 84 |
| MIGRATION – Review of report and recommendation of an Independent Merits Reviewer in respect of an offshore entry person – Applicant claiming psychological and physical harm in Iraq because of his marriage to a Thai woman – Reviewer treating the claim of psychological harm by enforced separation as merely a humanitarian concern – Reviewer applying a test of “severe harm” to the applicant’s claims – jurisdictional error established. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.46A, 91R, 195A |
| Applicant: | SZQOT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | JOHN GODFREY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 1899 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 10 February 2012 |
| Delivered at: | Sydney |
| Delivered on: | 10 February 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Smith |
| Solicitors for the Applicant: | Legal Aid NSW |
| Solicitors for the Respondents: | Mr O Jones Clayton Utz |
ORDERS
The Court declares that, in recommending to the first respondent that the applicant was not a person to whom Australia has protection obligations, the second respondent made an error of law, in that the second respondent misunderstood the meaning of persecution in the Convention Relating to the Status of Refugees.
The first respondent, by himself or by his Department, officers, delegates or agents, is restrained from relying upon the recommendation of the second respondent.
The first respondent is to pay applicant’s costs and disbursements of and incidental to the application in the sum of $6,240 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1899 of 2011
| SZQOT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| JOHN GODFREY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a report and recommendation of an Independent Merits Reviewer (“the Reviewer”) in relation to claims for protection made by the applicant who is from Iraq. The following statement of background facts relating to the applicant’s claims and the report and recommendation of the Reviewer is derived from the parties’ written submissions.
The applicant arrived at Christmas Island as an unauthorised boat arrival on 6 September 2010. That means that, for the purposes of the Migration Act 1958 (Cth) (“the Migration Act”), he is an offshore entry person and cannot make a valid application for a visa: s.46A. However, the Minister has power to lift the bar under s.46A in respect of the applicant as well as to grant him a visa under s.195A. As explained in Plaintiff M61/201E v Commonwealth (2010) 85 ALJR 133, the procedures adopted by the Minister and his Department in relation to people in the applicant’s position were as a consequence of a decision by the Minister to consider whether to exercise his powers under those provisions. This means that the assessment and review undertaken as part of those procedures must be procedurally fair and must address the relevant legal question or questions: M61/2010E at ALJR 148 at [77].
The applicant requested a Refugee Status Assessment (“RSA”) by the Australian Government at the Christmas Island Detention Centre on
15 August 2010.[1] The delegate found the applicant did not meet the definition of “refugee” under Article 1A of the Convention on
17 September 2010.[2] The applicant subsequently requested Independent Merits Review of the delegate's assessment.[3] The Reviewer concluded the review on 20 July 2011.[4] The result was notified to the applicant by letter dated 26 July 2011.[5]
[1] Court Book (CB), 31.
[2] CB 92-97.
[3] CB 108.
[4] CB 231.
[5] See Annexure A to Affidavit of Anne Himmelreich, affirmed 26 August 2011.
Case for refugee status
The applicant’s claim to be a refugee was made on several bases: first, because of his political opinion (being opposed to the Shi’a political parties); and secondly, because of his marriage to a Thai woman of the Sunni faith. The applicant claimed that he had been abducted and beaten after he had expressed his political views at a party and was only released upon payment of a ransom.
The first claim, which concerned the applicant alone, is not challenged. It is not explored further in these proceedings.
The second claim related to the applicant together with other persons. The applicant claimed he met his wife who is a native of Thailand over the internet. He travelled to Thailand, where they were married. The applicant did not register his marriage with the Iraqi authorities. His wife returned to Iraq with him.
In Iraq, the applicant's wife experienced harassment on the basis that she was an Asian woman and a Sunni Muslim. His wife returned home to Thailand. The applicant later visited his wife in Thailand. She bore him a child, who was also not registered with Iraqi authorities. He has not seen his wife in a long time, nor has he met his child. As an Iraqi, he is no longer able to enter Thailand. His wife could not return to Iraq. The applicant claims that he faces persecution in Iraq due to his wife's religion and nationality, as would his wife and child if they joined him.[6] He also claimed that he had been discriminated against and shunned by his friends on account of his marriage.
[6] CB 234 [16]-[18], 235 [21], 240 [44]-[45], 241 [48].
Recommendation by Reviewer
The Reviewer accepted some, but not all, of the applicant's claims. In particular, the reviewer accepted that:
a)the applicant had met his wife on the internet and they had been married in Thailand;
b)the applicant's wife had returned with him to Iraq and, due to harassment, had not adjusted to life there and had returned to Thailand;
c)the applicant had later visited his wife in Thailand, where she bore his child; and
d)the applicant's marriage was genuine, as was the applicant's desire to be reunited with his family.[7]
[7] CB 249-250 [59], CB 252 [63].
The Reviewer accepted that the applicant was no longer able to enter Thailand, as he was an Iraqi excluded from doing so by Thai immigration law. Further, due to the lack of registration of his wife and child with Iraqi authorities, they were not entitled to enter Iraq and would have significant problems in visiting there.[8] Lastly, the Reviewer found that the applicant's wife had made no attempt to reunite with her husband in Iraq since leaving the country.[9]
[8] Ibid.
[9] CB 252 [63].
In the absence of his wife from Iraq, the Reviewer found that the applicant did not have a well founded fear of persecution in Iraq due to the mere fact of his marriage. If the applicant's wife ever returned to Iraq, she would face harassment common to other foreign women in Iraq. However, the applicant himself would not face persecution due to his marriage.[10]
[10] Ibid.
The Reviewer stated that the issue was whether the applicant faced a risk of “severe harm” because of his marriage. In this respect, he found that the applicant’s inability to live with his wife was a “personal misfortune of very real proportions” but that it had arisen because of regulations surrounding entry and exit into (sic) Thailand. He then stated:
Absent the willingness of his wife to return to Iraq, and absent the right for his wife and child to enter Iraq, I find that the claimant does not have a well-founded fear of persecution for his imputed religion or any Convention reason because he is in a mixed marriage in Iraq now, or in the reasonably foreseeable future.
The Reviewer then considered the circumstances if the applicant’s wife were to return to Iraq. In that respect, he said:
While I accept that the claimant’s wife, if she were ever able to return to Iraq, would continue to be subject to the harassment common to that faced by other non-Iraqi, non-Muslim women in Iraq, I do not accept that the claimant would be at risk of severe harm because he is married to a Muslim woman from Thailand.
The Reviewer noted that he was unable “to solve the real humanitarian problem of a separated family” but found that there was no ground to find a well-founded fear of persecution and so found that the applicant did not meet the criteria for the grant of a protection visa under the Migration Act.
The present application
The applicant began these proceedings with an application filed on 26 August 2011, but now relies upon an amended application filed on 8 September 2011. The grounds in that application are:
1. The Second Respondent did not ask the correct legal questions when considering what recommendation to make to the First Respondent in respect of the Applicant.
a. Instead of asking whether the Applicant had a well-founded fear of serious harm the Second Respondent asked whether the Applicant had a well-founded fear of severe harm.
b. The Second Respondent did not ask whether the impact on the Applicant of not being able to live in Iraq with his wife and child constituted persecution within the meaning of Article 1A(2) of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.
I have before me as evidence the court book filed on 19 October 2011.
The applicant’s case is that the Reviewer made errors in considering the applicant’s claims. There are said to be two errors in the Reviewer’s consideration of the second claim. First, the Reviewer thought that the issue was whether there was a risk of “severe harm” because of the applicant’s marriage. The relevant question, in light of s.91R(1) is whether there was a real risk of “serious harm”. Secondly, the Reviewer did not consider whether being deprived of family unity in Iraq could amount to persecution.
The applicant submits:
The first error is that the [Reviewer] set the bar too high: harm can be serious without being severe. This was not just one slip, or an example of loose language that may be excused under Wu Shan Liang[11] principles. The [Reviewer] used the word twice and, importantly, did not otherwise explain what he meant when he found that the applicant would not face “severe harm” if he and his wife were to return to Iraq. For example, he did not say that the applicant would be socially ostracized, but that that is acceptable, or not sufficiently serious as to amount to persecution. He did not say, or consider, that walking down the street with your wife as she is being abused is acceptable or that the combination of those things was not serious. The obscurity in the reasoning only adds force to the suggestion that the wrong test was applied.
The second issue involves a number of steps. The first step in it is that the [Reviewer] accepted that the applicant’s wife left because she was being harassed and that she was harassed for reasons of her race and religion. Thus, she left, and ex hypothesi, would not return, for Convention reasons. The next step is that, while the [Reviewer] considered whether the applicant faced persecution (as understood by the [Reviewer]) for being in a mixed marriage, he did not consider whether being in Iraq without his wife and child amounted to serious harm. The raises the question whether this can amount to persecution.
“Persecution” is not defined in the Convention and, unsurprisingly in light of the aims of the Refugees Convention, there have been no attempt to prescribe its outer limits. In Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989-1990) 169 CLR 379 McHugh J said at 429-431:
As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is ‘being persecuted’ for the purposes of the Convention.
In Applicant A v Minister for Immigration and Ethnic Affairs (1996-97) 190 CLR 225 at 232, Brennan CJ observed that:
When a person has a well-founded fear of persecution, the enjoyment by that person of his or her fundamental rights and freedoms is denied.
[11]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
(see also McHugh J at 258-259)
In Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293, in the course of discussing the nature of persecution in the Convention, the plurality stated:
(29) Whether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity.
(see also Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387)
These statements support the conclusion that the forced separation of a family unit can amount to persecution. For that reason, the [Reviewer] should have considered the question of the impact on the applicant of not being able to be with his wife and child in Iraq. In failing to do so, the [Reviewer] did not apply the correct test and any decision made by the Minister on the basis of his recommendation would be affected by legal error.
The Minister’s case is that while the Reviewer did employ the word “severe” rather than “serious” in considering the harm claimed by the applicant, there is no jurisdictional error because on a proper view of the claims made by the applicant, the Reviewer found that there was no harm or, at least, no harm which could on any reasonable view be regarded as serious. The Minister contends that there was no clearly articulated claim, and no claim squarely arising from the available material that the applicant would suffer harm simply by reason of his separation from his wife and child. The Minister further submits:
The Applicant's grounds should be considered together. They are, in truth, co-dependent. If Ground 2 is rejected, Ground 1 becomes immaterial. Thus, the Minister's response is straightforward:
a)Ground 2 must be rejected as a new case. It suggests that the Applicant will be persecuted simply because he cannot be present in Iraq with his family. At no point was such a claim made before the Reviewer;
b)In the absence of Ground 2, Ground 1 can be discounted. The Reviewer found there was no harm at all to the Applicant by virtue of his marriage. The harm arose for the Applicant's wife in Iraq and there was no prospect of her return.
Ground 2
The High Court has said time and again that an applicant for judicial review cannot gain improper access to merits review by refashioning his or her case. The question is whether the Reviewer fell into jurisdictional error. The Reviewer cannot err through "an application, never made, which might have been put on another basis".[12] Rather, "[i]t is for the applicant to advance [a claim]. The [Reviewer] must then decide whether that claim is made out".[13]
[12] Re Minister for Immigration & Multicultural & Indigenous Affairs;Ex parte Applicants S134/2002 (2003) 211 CLR 441 at [31] (Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ). Both these decisions are applied by Finn J in Hong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1308 at [41],
[13] Abebe v The Commonwealth (1999) 197 CLR 510 at [187] (Gummow and Hayne JJ).
Ground 2 is undoubtedly a fresh claim. The Applicant's case before the Reviewer, with the benefit of professional legal representation and a number of submissions directed to the Reviewer, was that he faced harassment from other Iraqis because he had married his wife. At no point did the Applicant claim that he faced persecution simply through not being in Iraq with his wife. The Applicant cannot, in this Court, take a different tack.
The basis of the Applicant's case in harassment from other Iraqis emerges from the following extracts contained in the Reviewer's decision:
a)"[The Applicant said] [w]hile in the car, the men were telling me that my views had changed to Sunni and that I was married to a Sunni Muslim from Thailand";[14]
[14] CB 235 para 20. See also 238 para 31, where the alleged abductors "called him a husband of a Sunni".
b)"[The Applicant said] I would also face harassment, abuse and serious harm, because of my marriage to a Sunni Muslim and Thai national, from the individuals at my friend's party, and Shia groups against Sunnis";[15]
[15] CB 235 para 21.
c)"[The people in the Applicant's neighbourhood said to him] that they all knew that he had married a Sunni and that she was a foreigner so they did not want anything to do with him";[16]
[16] CB 237 para 27.
d)"[The Applicant said] that they had said everyone in the room [at the party] was Shia but that he was a Shia who had married a Sunni and a foreigner and that was why he held different views";[17]
[17] CB 237 para 28.
e)"[The Applicant said] he could not take his wife anywhere in Iraq ... How could they live? They would always be at risk ... it would be the same people who had threatened him before ... probably it was people inside the Government";[18]
[18] CB 239 para 40.
f)"The [Applicant's] adviser submitted that the claimant has claims arising from the mixed marriage. She noted that there was some information on the way that the sectarianism that emerged in 2006 had impacted on people in Shia / Sunni marriages, and the harm amounting to persecution some people had suffered. She noted that in this case, the matter was compounded because the claimant's wife was a Thai national as well as a Sunni";[19]
[19] CB 239-240 para 43.
g)"[The Applicant] said ... they would stand out and all the family would be at risk";[20]
h)"[The Applicant's adviser submitted] ... he, his wife and daughter will face ongoing harassment and discrimination ... If [the Applicant] were to return to Iraq in the foreseeable future with his Thai bride, there is a real change he would be persecuted because of his marriage to a woman who is a foreigner and his biracial daughter ... before long, potential agents of persecution would learn of their religious differences ... they would be targeted ... [The wife and child] will heighten [the Applicant’s] risk of persecution ... because of his mixed marriage alone, there is a real change he would be persecuted on his return to Iraq in the foreseeable future"[21]
Ground 2 plainly constitutes a revision, in which the Applicant being unable to be present in Iraq with his wife is said to constitute persecution. At no point in the submissions on behalf of the Applicant, or evidence put forward by the Applicant, is there a claim that the impact on the Applicant of not being able to live in Iraq with his wife and child had this status. In short, the criticism of Kirby J in Minister for Immigration and Multicultural Affairs v Respondents S152/2003[22] is equally applicable in the present proceeding:
"This is yet another case where persons who failed before the Tribunal on the merits, sought to re-canvass factual findings in an impermissible way and to argue their claim for judicial review in a manner significantly different from the argument advanced before the Tribunal".[23]
Ground 1
In the absence of Ground 2, Ground 1 becomes immaterial. Harassment of the Applicant by other persons in Iraq due to his marriage raises no question of the degree of harm. The Reviewer found there would be no such harassment. The Reviewer rejected the claim at paragraph 16(a) above that the men who had kidnapped the Applicant had been motivated by his wife's religious identity. Their motive was criminal extortion.[24] The Reviewer rejected the claim at paragraph 16(d) that guests at the party had criticised and ostracised him for his choice of wife. The Applicant's account of the occasion was not true.[25]
The balance of the Applicant's claims at paragraphs 16(b), 16(c) and 16(e)-(h) gave rise to an allegation of future harassment of the Applicant based on the fact of his marriage. They were predicated on the presence of the Applicant's wife in Iraq. The Reviewer flatly rejected the allegation. There was no plausible prospect of his wife's return to Iraq. She was unwilling and, for want of registration by the Applicant, had no entitlement to enter Iraq. In her absence, there would be no harassment flowing from the Applicant's marriage. Even if the Applicant's wife returned to Iraq, the harassment would be directed at her, not the Applicant.[26]
[20] CB 240 para 44.
[21] CB 240 para 47 to 241 para 48. See also CB 115 para 1 "many mixed couples had to separate as they and their families were threatened with death and kidnapping by militia. Thousands of couples were ... forced to flee".
[22] (2004) 222 CLR 1.
[23] Ibid [123].
[24] CB 250-251 para 60.
[25] CB 251 para 61.
[26] CB 252 para 63.
Consideration
The critical part of the Reviewer’s reasons is at [63][27]:
I have considered the issue of whether the claimant faces a risk of severe harm in Iraq because of his marriage to a Thai born Sunni Muslim. I do not find that he does. The unfortunate reality in this matter is that his wife is not living with him in Iraq and he is unable to live with his wife in Thailand. That is a personal misfortune of very real proportions and I understand that. However, it has arisen because of the lawful regulations surrounding entry and exit into Thailand. I also note that the claimant has not registered his marriage in Iraq, nor has he registered the birth of his daughter there and that, consequently, his wife has not automatic right to enter Iraq at this time. This would cause significant problems should his wife wish to visit the claimant in Iraq. I further note that the claimant’s wife has not made any attempt to reunite with her husband in Iraq since her departure from Baghdad in 2006. I also note that the claimant has also not sought to register the marriage or the birth of his daughter in Iraq. Absent the willingness of his wife to return to Iraq, and absent the right for his wife and child to enter Iraq, I find that the claimant does not have a well-founded fear of persecution for his imputed religion or any Convention reason because he is in a mixed marriage in Iraq now, or in the reasonably foreseeable future. On the question of whether the claimant would be at risk of persecution because he is in an inter-racial marriage, I note firstly the points just made about the claimant’s wife not having sought to re-enter Iraq since 2006. I also note that there is no suggestion that the claimant’s wife is not a Muslim. While I accept that the claimant’s wife, if she were ever able to return to Iraq, would continue to be subject to the harassment common to that faced by other non-Iraqi, non-Muslim women in Iraq, I do not accept that the claimant would be at risk of severe harm because he is married to a Muslim woman from Thailand. I find that the claimant does not have a well-founded fear of persecution for a Convention reason because he is married to a Thai Muslim should be return to Iraq now, or in the reasonably foreseeable future.
[27] CB 252.
There are two difficulties with that paragraph. The first is that the Reviewer at two points in that paragraph refers to a test of “severe harm” rather than “serious harm” as stipulated in s.91R of the Migration Act. The second is that the paragraph is difficult to interpret because it runs together several lines of thought relating both to the applicant’s claims of physical harm and what the Reviewer described as “humanitarian” issues concerning his circumstances in Iraq including his separation from his wife and child. The second is further referred to at [64] of the Reviewer’s reasons.
It is, in my view, imperative that decision-makers dealing with claims of persecution use the same language as is employed in the Refugees Convention and in relevant provisions of the Migration Act. The relevant provisions of the Migration Act in relation to an offshore entry person include s.91R. The Reviewer acknowledged that the section applied at [8] of his reasons[28]. Section 91R applies a test of serious harm:
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
[28] CB 232.
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
…
If decision-makers depart from the language of the section a question arises whether they are applying a different test of harm to that mandated by Parliament. Such a departure is so problematic that, in my view, it is likely to point to jurisdictional error unless the Court is able to conclude that the facts as found by the decision-maker could not constitute a finding of persecution on a test of serious harm. The significance of terminology in addressing a test of harm is emphasised by Professor Jane McAdam in a recent article, Australian Complementary Protection: A Step-by-Step Approach. Professor McAdam’s article published in volume 33 of the Sydney Law Review, in particular at page 725, comments on the distinction deliberately made by Parliament in the Complementary Protection Act by adopting the term “significant harm” rather than the term “serious harm” employed in s.91R(2). There is an implication from that deliberate distinction made by Parliament that a different test of harm was intended. Likewise, here, where the Reviewer adopted a test of severe harm, there is an implication that he was mistakenly applying a different test from the test he was required to apply pursuant to s.91R(2).
The Minister seeks to escape that conclusion by arguing that the Reviewer found that the applicant would not be subject to harm at all. I have two difficulties with that submission. The first is that there is no clear finding in the Reviewer’s reasons that the applicant would not be subject to any harm. The second is that, in my view, there was a sufficiently clearly articulated claim of psychological harm made by the applicant by reason of his separation from his wife in Iraq which required consideration by the Reviewer. I was taken by counsel for the applicant to the various points at which that claim could be said to have been articulated. The clearest is the original entry interview recorded by the Minister’s Department and reproduced at pages 29 and 30 of the court book. I incorporate that record in this judgment:
2nd reason, (point to photos of family). 2 years & 5 months. I haven’t seen my wife. And my daughter was born & I haven’t seen her 1 yr & 9 months. And she couldn’t come to Iraq & now Iraqis is [not] allowed to go to Thailand. After 2008, Iraqis were not allowed to go to Thailand and I went in 2008 as a consequence of my wife sending me an invitation to Thailand. This is why I was able to leave. This problem to me is much more important than the other one.
The Reviewer was clearly aware of that record because he referred to it in summary form at [13]-[16] of his reasons. While the applicant’s claims were developed to emphasise serious physical harm said to have been suffered by him in Iraq, there was no abandonment of the claim of psychological harm by reason of the separation.
The Reviewer accepted that the applicant’s wife departed Iraq because of harassment that was connected to her race and religion. There was an issue of whether the applicant’s wife would be able to return to Iraq which was not clearly resolved, but it appears to have been implicit in the Reviewer’s reasons that the applicant’s wife was unlikely to willingly return to Iraq because of the harassment that she had been subjected to. The Reviewer also accepted that the applicant would be unable to travel to Thailand to see his wife and child. The material before the Reviewer, in my view, required a consideration of whether the applicant would suffer serious harm if he were required to live in Iraq without his family, namely, his wife and child. That claim was not considered except as a humanitarian issue, and, in failing to consider that claim as a claim of persecution as well as in adopting a test of harm other than that required by s.91R(2) of the Migration Act, I find that the Reviewer fell into jurisdictional error.
It follows that the applicant is entitled to receive the relief of a declaration and injunction sought in the amended application, and I will so order.
In consequence of the orders made by the Court, the solicitor[29] for the applicant sought an order for costs. The solicitor for the Minister queried whether no order for costs should be made against the Minister in circumstances where the applicant was represented pro bono or with the benefit of Legal Aid. In my view, there is no reason for the Court to depart from the ordinary principle that costs should follow the event. Scale costs are sought and I see no reason to depart from the Court scale. I will order that the first respondent is to pay applicant’s costs and disbursements of and incidental to the application in the sum of $6,240 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
[29] Counsel was called away before judgment was delivered.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 20 February 2012
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