SZRJY v Minister for Immigration and Citizenship (No 2)
[2012] FMCA 756
•13 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRJY v MINISTER FOR IMMIGRATION & ANOR (NO.2) | [2012] FMCA 756 |
| MIGRATION – Application to set aside orders dismissing application for non-appearance – where no arguable grounds of review and not entirely satisfactory explanation for non-appearance. |
| Migration Act 1958 (Cth), ss.65, 422B, 424AA, 424A, 425, 477 Federal Magistrates Court Rules 2001 (Cth), rr.13.03C, 16.05 |
| Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 250 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW and Others (2004) 140 FCR 572; [2004] FCAFC 264 Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 |
| Applicant: | SZRJY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 865 of 2012 |
| Judgment of: | Barnes FM |
| Hearing dates: | 28 June 2012 and 13 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 13 August 2012 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application of 19 June 2012 to set aside orders made by this court on 13 June 2012 is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $5,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 865 of 2012
| SZRJY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application filed by the applicant on 19 June 2012 seeking that orders that were made on 13 June 2012 pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) dismissing his application for review of a Refugee Review Tribunal decision be set aside. His application had been dismissed when he did not appear at the directions hearing. In support of his application the applicant relied on an affidavit sworn on 19 June 2012. When the matter was last before the Court, the applicant was cross-examined in relation to his affidavit evidence, in particular in relation to his explanation for his failure to appear in this Court on the day on which his application for review of the Tribunal decision was listed. In the course of the hearing the applicant sought a further adjournment on the basis that he was not in a fit mental state at the time of the Tribunal hearing. He appeared to indicate that he wished to put more evidence in relation to his mental state or as to what occurred in the Tribunal hearing before the Court in circumstances where the only evidence of what occurred in the Tribunal hearing that was otherwise before the Court was the Tribunal reasons for decision.
I granted the applicant an adjournment and made orders for the filing of further evidence. However all that he filed was an affidavit sworn on 25 July 2012 attaching a copy of a medical certificate for one day – 17 July 2012 – stating that he was suffering from a “medical condition” and in the opinion of Dr C. Gounder would be unfit for his normal work that day. This was not a day on which the applicant had to be before the Court.
At the start of the resumed hearing today the applicant unsuccessfully sought to tender what he said was a doctor’s report in relation to his mental state. However the document consisted of the results of recent tests in relation to cholesterol, vitamin D and the like. It was not a medical report. It did not relate to the time when his application was before the Tribunal. As submitted for the first respondent, it was not of any relevance in the present proceedings.
The respondent relies in these proceedings on an affidavit of Laura Frances Weston affirmed on 22 June 2012 and filed written submissions.
The court has power under r.16.05 of the Federal Magistrates Court Rules to set aside or vary a judgment or order where the order was made in the absence of a party. The respondent opposes such an order being made in this case.
The circumstances in which the order dismissing the application for non‑appearance were made are apparent from my judgment in SZRJY v Ministerfor Immigration & Anor [2012] FMCA 541. The applicant commenced these proceedings by application filed on 19 April 2012. He sought review of a decision of the Tribunal dated 16 January 2012. His application was filed outside the time provided for in s.477(1) of the Migration Act 1958 (Cth), which requires that an application for judicial review be filed within 35 days of the date of the migration decision. In his original application the applicant sought an extension of time pursuant to s.477(2) of the Migration Act. In the application he claimed that he needed an extension of time “for the sake of natural justice”. In his accompanying affidavit the reason given for the delay and why the applicant saw it as in the interests of the administration of justice to grant such an extension of time was that he “need[ed]” an extension of time to file the application for the sake of natural justice.
Details of the time, date and place of the first return date were inserted by the Registry on the application. When the matter came before the court on the first return date on 13 June 2012 there was no appearance by the applicant, either at the time the matter was listed or some 45 minutes later. At that stage no explanation was provided. The application was dismissed pursuant to r.13.03C(1)(c).
That occurred in circumstances where there was a claim by the solicitor for the respondent that the applicant had been served with the court book together with a letter that confirmed the need for him to attend the Court at the directions hearing at the date, time and place specified and advised him of the consequences of non‑appearance. There is now evidence before the court in the affidavit of Laura Weston in relation to the sending of such a letter to the applicant at the address for service provided in the application to the Court. On 26 April 2012 a letter was sent to the applicant enclosing a notice of address for service for the first respondent, confirming the listing details and informing him that if he did not appear the matter may be dismissed. Similar information was provided with the letter of 23 May 2012 enclosing by way of service the court book.
Ms Weston attested that on 13 June 2012, the day when the matter was supposed to be before the court and the applicant did not appear, she was sent an email from a secretary in the firm for which she works at 12.05 pm advising that a friend of the applicant had called to say that the applicant did not realise the court hearing was on that day and wanted to speak to Laura, which I take to be a reference to Ms Weston.
At approximately 2.25 pm Ms Weston received a further phone call from this person who said that the applicant had missed the appointment on that day as he thought it was on (Saturday) 16 June 2012. He was provided with the contact details for the court’s registry.
On 19 June 2012 the applicant filed the present application in a case seeking reinstatement of the substantive application, including the application for an extension of time.
In his affidavit of 19 June 2012 the applicant said he was not represented and was “no totaly (sic) aware of legal consequence of the court hearing”. He claimed he was not educated, that he could not read English, and that “Immigration” asked him “to go on 15 May 2012” (sic) so he thought that that was his court hearing date. He claimed that one of his friends “had a look” at his application and then he “realised” the court date.
The applicant elaborated on these claims in his cross‑examination. There is some lack of consistency in relation to precisely when he thought he had an appointment with the Department. It appears that his understanding was that he had an interview with the Department on a date in June (16 June 2012) and did not look at the stamped copy of his review application, notwithstanding that he himself had filed it and in cross‑examination was able to point to and read the date for the first directions hearing. A friend told him to contact the court as 16 June 2012 was a Saturday. He did not do so but waited to get another friend to read letters from the first respondent’s solicitors.
The applicant claimed that he did not open letters, that friends opened them for him and that he waited until a friend was available to find out what his commitments were. He suggested that he had received letters from the first respondent’s solicitors but failed to open such mail for some weeks. He claimed he did not become aware of the first return date until his friend advised him on 19 June 2012. The friend rang the first respondent’s solicitors on 19 June 2012.
The discretion in r.16.05 must be exercised judicially and with caution, although the overriding principle is whether it is in the interests of justice to set aside orders that have been made by the court in the absence of a party. In determining whether it is in the interests of justice and whether to exercise the discretion to reinstate the proceedings it is relevant to consider whether the applicant has provided a satisfactory explanation for his absence and demonstrated that there is an arguable case in the principal proceedings (see Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 250 and cases cited therein).
While I accept what the applicant says in relation to his lack of English language skills, as Raphael FM noted in SZMWX v Minister for Immigration & Anor [2009] FMCA 115 at [4], the court deals with many cases brought by people who do not speak English, but most attend court. As his Honour put it, “[i]t is an applicant’s responsibility to ensure that he is aware of when his matters are being heard in court”.
Furthermore, in this case the applicant was notified of the correct time, date and location of the first court date on at least three occasions. First, when he himself, on his oral evidence, personally attended the registry to file the application, the details of the first court date were inserted on the application, clearly indicating the time, date and location. He had this indication, whether or not he opened letters which were sent to him by the solicitors for the first respondent. The first respondent’s solicitors wrote to the applicant twice, on 26 April 2012 and 23 May 2012, in each case reminding him of the date, time, and place of the listing and of the possibility that if he did not appear, the Minister may apply to have the matter dismissed for non-appearance.
In all the circumstances, if the applicant was in fact unaware of the first court date, it was because he chose not to inform himself. He filed the application himself. The application bore the details of the first court date. It was the applicant’s responsibility to ensure that he was aware of when the matter was before the court.
I have made due allowance for the fact that the applicant is not an English speaker and the fact that he may have relied on waiting for friends without proactively taking steps to discover when his matter was listed. However even if one accepted in its entirety the applicant’s explanation for his failure to appear, it is not an entirely satisfactory explanation, involving as it does a failure to ensure he was aware of when the matter was before the court despite various notifications. Nor does it outweigh the fact that he has not demonstrated that he has even an arguable case in the principal proceedings.
I have considered the grounds of review in his original application, including the application for an extension of time. The Court has before it the court book and the benefit of detailed written submissions from the first respondent. The applicant had the opportunity to make submissions in relation to the merits of his substantive application. The only matter that he raised in submissions today was his mental state. He claimed he told the Tribunal at the hearing that he was unfit.
I take this to be a contention that the applicant’s mental state deprived him of the ability to give evidence and present arguments about the issues arising in relation to the decision under review at the Tribunal hearing in the sense required under s.425 of the Migration Act and considered in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126. It is for the court to determine on the evidence before it whether an applicant has established that he was unfit to participate in the Tribunal hearing as considered by Branson J in NAMJ v Ministerfor Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 56; [2003] FCA 983.
In this case the onus has not been met by the applicant, notwithstanding the opportunity and further time he was given to file further affidavit evidence after the matter was last before the court on 28 June 2012. The evidence he submitted in court, a medical certificate for an unexplained medical condition on 17 July 2012, in no way establishes any unfitness at the time of the Tribunal hearing which was conducted over two days, on 9 November 2011 and 22 December 2011.
The only evidence before the court of what occurred in the hearing is the Tribunal reasons for the decision. The Tribunal recorded that at the end of the hearing, after the Tribunal put to the applicant information consistent with the requirements of s.424AA of the Migration Act and reminded him that he was entitled to seek additional time to provide additional information, the applicant stated that he was not in a mental position to think or be prepared (presumably to answer any other questions).
The Tribunal recorded that the applicant did not present any medical evidence to suggest that he was suffering from any form of illness, including mental illness, which “hindered his capacity” to respond to the Tribunal’s questions or to offer oral evidence. Nor has he presented any such evidence to the Court, notwithstanding the opportunity that he had to do so. In these circumstances there is no merit whatsoever in any ground based on a breach of s.425 of the Migration Act on the basis of the applicant’s mental health at the time of the Tribunal hearing.
In his affidavit and application of 19 April 2012, the applicant took issue with the fact that the Tribunal was said to have denied him procedural fairness by reaching “adverse conclusions” that certain aspects of his claims were implausible. He claimed these conclusions were not “obviously open on the known material” and that he was not given the opportunity to be heard in respect of those matters. In his affidavit the applicant contended that the Tribunal did not accept him as a credible witness and rejected all his claims.
Before considering those general contentions, it is necessary to have regard briefly to the background to these proceedings and the Tribunal decision. The applicant, a citizen of Pakistan, arrived in Australia in January 2011. He applied for a protection visa in April 2011. The application was refused and he sought review by the Tribunal. In its reasons for decision the Tribunal set out at length the claims made by the applicant at various times and referred to independent country information.
The Tribunal considered the applicant’s claims as based on the Convention grounds of religion, political opinion, and membership of a particular social group. He claimed he was a Shia and an active member of the Tehreck-e-Jafria Pakistan (TJP) in Pakistan and that, as a consequence, he was seriously assaulted and threatened by Sunni extremist groups. He claimed he decided to depart Pakistan as he did not wish to suffer the same fate as his brother, a prominent member of the TJP, who was said to have been shot dead in 2007.
However the Tribunal did not find the applicant to be a credible and truthful witness. It had regard to a number of factors which it set out in detail in its findings and reasons, including the omission of significant claims from the applicant’s evidence to the Department, various inconsistencies between his written claims to the Department and his oral evidence to the Tribunal and other reasons.
In particular, the Tribunal had regard to the difference between the applicant’s original claims that he had lived a “normal life” in Pakistan until three days before his departure from Australia, his later claim in the Departmental interview that he was approached on one occasion by some men who warned him not to participate in certain activities, and also his claim for the first time in a submission to the Tribunal that he had been badly assaulted by the men who had approached him and hospitalised. The Tribunal was of the view that these inconsistencies cast doubt on the truth of the applicant’s claims in the manner in which they gradually evolved. It did not accept his explanation that he had explained the events to a solicitor and the solicitor advised him that he could add additional details having regard to the initial claim that he lived a “normal life” prior to his departure. It also had regard to the late raising of the claim about the applicant’s brother in a submission to the Tribunal. It did not accept that the applicant had satisfactorily explained why he had neglected to mention such important claims to the Department.
The Tribunal also had regard to inconsistencies in the applicant’s evidence in relation to his TJP-related profile and activities and his explanations in that respect. The Tribunal did not accept the explanation that the interpreter assisting the applicant at the hearing had “invented” claims on his behalf or had misinterpreted his claims in a manner that “distorted” his claims. It found these explanations were a “late invention designed to mask the problematic nature” of the applicant’s evidence.
The Tribunal also had regard to inconsistencies in the applicant’s claims about his former addresses and employment and to the fact that, despite his claim that he had joined the TJP in 2008 and participated in various activities at a low level he was unable to provide information “beyond the most banal generalities” with regard to the TJP, contrary to what the Tribunal would have expected of someone who had such experience.
The Tribunal found that the applicant was not a credible, truthful and reliable witness, and that the totality of his evidence showed “a propensity to fabricate, shift, and tailor evidence” in a manner which achieved his own purpose. It was of the view that he had manufactured his claims and concocted evidence to achieve an immigration outcome. It had regard to the applicant’s level of education in making these findings.
The Tribunal therefore did not accept the applicant’s claims to have been a member of, involved with, or associated with the TJP or any other religious or political organisation, or the claimed consequences thereof. It also did not accept the claims about his brother and any past harm or mistreatment suffered by the applicant or his family. It was prepared to accept that he was a Shia Muslim and attended the Mosque for prayers, but found that other than praying at home, he had not practised his religion in any other way. It found that if he were to return to Pakistan, he would continue to practise in the same way as he had done in the past.
Having rejected the applicant’s claims that he or his family had ever been subject to harm or mistreatment for reasons of their faith, the Tribunal also pointed out that if he had any concerns in that respect, it would be reasonable for the applicant to safely relocate to a different locality in Pakistan, given his skills as a tailor and “technical mechanic”, the resilience and capacity to survive in an alien environment he had demonstrated in Australia, the size of the Shia population in Pakistan, and the concentration of large Shia populations in numerous towns and cities. The Tribunal found that if he did relocate, there was no real chance he would face harm by Sunnis, extremist Sunni groups, or any other religious or political group or organisation. It noted that he did not claim being married with a child “would render internal relocation unreasonable”. The Tribunal had regard to the barrier to relocation the applicant raised, which was his claim that only Urdu-speaking people could live in Karachi and that he was primarily a Punjabi speaker. However the Tribunal found that it was clear that the applicant also spoke Urdu (as had emerged at the Tribunal hearing). It was not satisfied that if he were to relocate to an Urdu-speaking locality he would face any difficulties.
The Tribunal was satisfied that the applicant’s fear of persecution for a Convention reason was not well-founded and found that he was not a refugee.
In his original application the applicant appeared to contend generally that there was a denial of procedural fairness on the basis that the Tribunal had reached conclusions that “were not obviously open on the known material, without giving [him] the opportunity to be heard”.
The Tribunal is not obliged to put its provisional reasoning to an applicant. In any event, it is apparent from the Tribunal account of the Tribunal hearings that the Tribunal raised issues of concern with the applicant, including its concerns about inconsistencies and other aspects of his evidence that may have led it to find that his evidence was not reliable and that he had not been truthful.
The fact that the Tribunal did not accept the applicant as a credible witness was a matter for the Tribunal. Its findings in that respect were open to it on the material before it for the reasons which it gave. There is no merit in a general contention taking issue with the Tribunal’s credibility findings. There is no merit in the generally expressed and unparticularised claim of a denial of procedural fairness. It is contrary to the evidence before the Court.
The first specific ground in the application is that the Tribunal did not give the applicant before the hearing the independent information it had about Pakistan, but used this information. This was said to be “against” s.424A of the Migration Act. This ground cannot succeed. It is well-established that independent country information of the nature referred to in the Tribunal’s decision is excluded from the Tribunal’s obligations under s.424A(1) of the Migration Act by reason of s.424A(3)(a) (see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW and Others (2004) 140 FCR 572; [2004] FCAFC 264). There is no merit in the first ground in the application.
The second ground is a generally expressed contention that the “Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act”. There has been no clarification of what “requirements of the Migration Act” are said to be in issue. Insofar as Division 4 of Part 7 of the Migration Act is concerned, I note the operation of s.422B(1) of the Act.
As indicated, the applicant has raised his mental fitness at the time of the Tribunal hearing which raises an issue in relation to s.425 of the Migration Act. However he did not put evidence before the Court to support any such ground, even on an arguable basis. Not only does the evidence before the Court not demonstrate any breach of s.425 in the sense considered in SCAR, but moreover, the evidence before the Court does not raise even an arguable case of such a breach. I have borne in mind that the fact that a party to an administrative hearing may feel unwell, or indeed may be suffering from some mental illness or physical illness that affects his ability to adduce evidence or advance arguments, will not in every case deprive him or her of a meaningful opportunity to participate in the hearing process (see SZMSF v Minister for Immigration and Citizenship [2010] FCA 585 at [32] per Flick J).
I have also borne in mind the need to assess fitness in the circumstances of the particular case. There is however nothing in the evidence provided by the applicant and nor is there anything in the material before the Court in the court book to establish even an arguable case that his mental or physical state at the time of either or both of the hearing dates in December 2011 was such that he was deprived of the capacity to give an account of his experiences, to present arguments in support of his claims, or to understand and respond to questions put to him. Insofar as it is claimed that there was a breach of s.425 this is insufficient to establish an arguable case such as to warrant reinstatement of the substantive application. Nor indeed would there be sufficient merit to support the grant of an extension of time had the application been reinstated.
As the first respondent submitted, the applicant was afforded an opportunity to present evidence and arguments in relation to the issues arising in relation to the decision under review at the hearing and based on the Tribunal’s account of the hearing it more than sufficiently indicated its concerns regarding the applicant’s credibility. There is nothing to suggest that it failed to raise dispositive issues in the sense considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63 at [47].
Furthermore, the Tribunal put to the applicant aspects of his evidence in accordance with s.424A of the Migration Act by way of reliance on the procedures in s.424AA. No issue is taken and nor is any apparent with the manner in which the Tribunal met such obligations. In particular, insofar as there was information consisting of oral evidence given by the applicant to the delegate within s.424A(1) of the Act this was put to the applicant. Insofar as the Tribunal may have also raised with the applicant information that was not in fact within s.424A of the Migration Act that does not demonstrate jurisdictional error.
The reference to “reasonable satisfaction” in this ground does not point to any arguable jurisdictional error. Under s.65 of the Migration Act the Tribunal is to determine whether it is satisfied that an applicant meets the criteria for the grant of a protection visa. If it is not so satisfied it must affirm the delegate’s decision (see SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225). In this case the requisite state of satisfaction was not reached. Ground two is not arguable. It does not demonstrate sufficient merit to support the application for reinstatement.
The third ground is that the decision was unjust and made without taking into account the “full gravity” of the applicant’s circumstances and the consequence of the claim. This general contention does not establish jurisdictional error. As the High Court noted in SZBEL at [25], “procedural fairness requires a fair hearing, not a fair outcome”. There is nothing in the material before the Court to suggest that it is even arguable that the applicant was not afforded a fair hearing.
Insofar as this may be seen as a contention that the Tribunal failed to take into account any integers of the applicant’s claims, that is not apparent or even arguable on the material before the Court. Having rejected the underlying basis for the applicant’s claims it was not necessary for the Tribunal to go further in addressing the future than it did.
The fourth ground is that the Tribunal failed to investigate the applicant’s claim, especially the grounds of persecution in Pakistan, and that its decision was affected by actual bias. Insofar as this is a contention that the Tribunal was under an obligation to investigate the applicant’s claims, it is well-established that it is for the applicant to put evidence before the Tribunal, not for the Tribunal to obtain evidence in order to make out an applicant’s case, and that the Tribunal is under no general duty to inquire (see VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459, Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32, SZJBA v Minister for Immigration and Citizenship and Another (2007) 164 FCR 14; [2007] FCA 1592 and WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277). There is nothing in the material before the Court to establish or to even raise an argument that this was one of those rare and exceptional cases in which the Tribunal was required to undertake an obvious inquiry about a critical fact the existence of which was easily ascertained in the sense considered by the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39.
Nor is there any substance in the contention of bias. It is well-established that allegations of bias are serious charges which must be clearly made and distinctly proved. It is rare that an allegation of bias can be made out on the basis of the decision record alone. There is nothing in the present case to suggest even an arguable case of pre-judgment on the part of the Tribunal in the sense of it being so committed to a conclusion already formed and incapable of alteration whatever evidence or argument may be presented, as discussed in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17.
Nor has the applicant provided any evidence to support a claim that a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal might reasonably apprehend that the decision-maker may not have brought an impartial mind to the application (see Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28). There is no merit in this ground.
The matters raised by the applicant in his application and otherwise as grounds of review do not demonstrate even an arguable basis on which the Tribunal’s decision can be said to have involved jurisdictional error. I have borne in mind that an unmeritorious application should not be reinstated (see MZYIZ v Minister for Immigration & Anor (No.2) [2010] FMCA 755 at [10] and [46] and MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 and Yasmin v Minister for Immigration & Anor (No.2) [2010] FMCA 557 at [8]). I have also borne in mind that were the matter to be reinstated the applicant would require an extension of time. That would involve a consideration of the interests of the administration of justice in which context the extent of and lack of explanation for the delay in bringing the application to this Court, as well as the lack of merit in the substantive application and any other relevant circumstances would be of relevance.
Although it is not determinative in the present situation, I note that there was a delay of some 62 days in bringing this application. In the documents filed in these proceedings the applicant has provided no proper explanation for the delay. When asked about this issue he was given the opportunity once again to explain the delay and he referred again to the fact that he could not read and write English. He claimed he showed the decision letter to a friend who told him he would get a letter saying he had 28 days to appeal, that he misunderstood and waited for some weeks, and after a month another friend whom he asked said the time had already passed. Once again it appears the applicant blames friends for his own shortcomings. This is not such as to provide a satisfactory explanation were one considering an application for an extension of time.
In all the circumstances, having regard in particular to the complete absence of merit in the grounds of review and the fact that were the same material before the Court in relation to an application for an extension of time the extension of time would not be granted, I am of the view that this is not a case in which it is in the interests of justice that the application for review be reinstated. There is no merit in the substantive application. The application for reinstatement should be dismissed for the reasons that have been given.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful. The Minister seeks that he pay the Minister’s costs in the sum of $5,500. The application for costs is supported by an affidavit of Laura Frances Weston filed with leave of the Court today. The applicant indicated that if he could get a discount on the costs that would be desirable. However, the costs as set out and as explained in the affidavit of Ms Weston are calculated on a party-party basis. Having regard to the nature of this and other similar matters, I am of the view that the amount sought is appropriate. It is not excessive. There is no basis on which it is appropriate that it should be discounted.
Nor is there any basis for departure from the normal principle that an unsuccessful applicant should meet the costs of the first respondent. The amount sought is reasonable and appropriate.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 4 September 2012
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