SZUAH v Minister for Immigration
[2015] FCCA 2802
•6 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUAH & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2802 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.52, 424AA, 494B, 494C, 494D |
| Minister for Immigration and Citizenship v SZLIXand Another (2008) 245 ALR 501; [2008] FCAFC 17 Nawaz v Minister for Immigration and Citizenship and Another (2013) 136 ALD 347; [2013] FCCA 545 SZFDE and Others v Minister for Immigration and Citizenship and Another (2007) 232 CLR 189; [2007] HCA 35 SZLWE v Minister for Immigration & Anor [2008] FCA 1343 |
| First Applicant: | SZUAH |
| Second Applicant | SZUAI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 641 of 2014 |
| Judgment of: | Judge Barnes |
| Hearing dates: | 27 August and 6 October 2015 |
| Delivered at: | Sydney |
| Delivered on: | 6 October 2015 |
REPRESENTATION
| Applicants: | In person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.
The Application be dismissed.
The First Applicant pay the costs of the First Respondent fixed in the sum of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 641 of 2014
| SZUAH |
First Applicant
| SZUAI |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) dated 13 February 2014. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the First Applicant a protection visa and found that it did not have jurisdiction in respect of the second-named Applicant (the infant daughter of the First Applicant).
The First Applicant, a citizen of China, arrived in Australia in September 2008 as the holder of a student visa. She applied for protection in November 2012. Her daughter was born in April 2013 and was added to the application in June 2013. On 30 July 2013 a delegate of the First Respondent refused the application.
The First Applicant sought review by the Tribunal on 26 August 2013. On 11 September 2013 the Tribunal wrote to her through her authorised recipient (whose details had been provided in the review application), noting that her child was not included in the review application and pointing out that given the time limit on review applications it may not have jurisdiction to review the delegate's decision in respect of the child.
On 13 September 2013 the First Applicant requested that the child be included in the review application. The Tribunal invited both Applicants to a Tribunal hearing at which the First Applicant gave evidence. Both Applicants have sought review of the Tribunal decision in these proceedings.
Before considering the grounds of review, it is convenient to have regard to the Tribunal decision. In essence, in her protection visa application, the Applicant mother claimed she came to Australia in 2008 out of concern for her safety. She claimed that in 2006 her parents had been evicted from their pig and fish farms and had a dispute with the authorities in their local town, that gangsters had harmed the property, that her parents were concerned for her safety and sent her to Australia to study, and that her father had informed her that if she had not left China the authorities would have hurt her as well.
The First Applicant claimed to fear persecution on the basis that she was a Christian. She claimed that she had met a Sister Chen from the church who had comforted her in relation to her parents’ situation and that after her boyfriend left her when she was pregnant she went to church in Australia and thereafter embraced Christianity. She later claimed she had believed in Christianity in China, but had practised her religion secretly and did not practise in Australia for the first three or four years after her arrival.
The First Applicant also claimed that as an unmarried mother she feared harm in the form of discrimination and social ostracism. In addition, she claimed that her child would be discriminated against and isolated because she came from a small village where people were very conservative. She claimed her parents would not be able to assist her financially.
The First Applicant elaborated on these claims at the Tribunal hearing. The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal's account in its reasons for decision. The Tribunal recorded that it put to her certain information from her student visa application pursuant to s.424AA of the Migration Act 1958 (Cth) (the Act), in particular information that her father had held a managerial position in a company in Fuqing City from April 2002 onwards and in relation to his income.
After setting out country information in relation to Chinese family planning laws in the province from which the First Applicant claimed she came, the Tribunal found that the First Applicant was lacking in credibility in respect of key aspects of her claims for protection. It reached that finding notwithstanding its acknowledgment of the need to be sensitive to difficulties faced by asylum seekers and to give the benefit of doubt to those generally credible. It accepted and had regard to the fact that the First Applicant was in a depressed emotional state at the hearing. However, for reasons it gave, the Tribunal found her to be lacking in credibility. It concluded on that basis that she was not in genuine fear of persecution. It was not satisfied that there was a real chance of persecution on her return to China.
Given the First Applicant's highly generalised level of religious beliefs and practices as articulated at the Tribunal hearing, the Tribunal did not accept that on return to China she would seek or be committed to engaging in a particular type of Christian religious activity in a manner or form that would bring her to the adverse attention of the authorities. The Tribunal noted that the First Applicant had indicated that for some three or four years after arrival in Australia she did not attend any religious services or gatherings and also that she did not claim to have encountered any difficulties with the authorities in respect of her religious convictions before coming to Australia. It did not accept that she had a well-founded fear of persecution in China on the basis of her religion.
The Tribunal considered the First Applicant's claims that she would not be able to register her child on return to China because the child was born out of wedlock. It had regard to her oral evidence that her parents no longer owned a home and would be unable to assist her financially with bringing up the child or paying the social compensation fee to register the child. However, the Tribunal also had regard to the fact that information in the First Applicant’s student visa application indicated that her father held a senior and well-paid position in a business in Fuqing City. In light of the information in the student visa application, the Tribunal did not accept the First Applicant’s parents were financially bereft as claimed or that they were unable to assist her with payment of a social compensation fee to register the child.
The Tribunal noted that there was country information indicating that in rural locations in China a single mother may face discrimination and social ostracism, but that this was less likely to happen in an urban centre. The Tribunal found that the First Applicant came from a major urban centre and a relatively prosperous family. It did not accept that she faced serious harm by reason of the fact that she would return to China as a single mother. More generally, the Tribunal did not accept that the First Applicant had a well-founded fear of persecution for a Convention reason on return to China.
The Tribunal also considered the complementary protection criterion, but on the basis of its earlier findings found that the First Applicant did not meet this criterion.
The Tribunal found that it had no jurisdiction to review the delegate's decision in relation to the child (the Second Applicant) as her review application was not lodged within 28 days “after the applicant was notified of the delegate's decision” in accordance with the Act and Migration Regulations 1994 (Cth). It found that material before it indicated “the applicant” was notified of the decision by letter dated 30 July 2013 and dispatched by post. The Tribunal was satisfied that “the applicant” was notified of the decision in accordance with the statutory requirements. It found that therefore, in accordance with s.494C of the Act, the applicant was taken to have been notified of the decision on 8 August 2013, so that the review application had to be lodged by 5 September 2013. It found that as the application for review in respect of the child was not received by the Tribunal until 13 September 2013, it was not made in accordance with the relevant legislation and that it had no jurisdiction in relation to the child.
The first ground in the review application filed on 14 March 2014 is a general complaint by the First Applicant that the Tribunal said that she “was born in city so my daughter and I will not be discriminated”. This ground summarises a factual finding of the Tribunal. It does not allege any jurisdictional error. Rather it takes issue with the Tribunal's factual findings and perhaps more generally with the Tribunal's credibility findings.
Factual findings are a matter for the Tribunal, as are credibility findings. In this case the Tribunal's findings were open to it on the material before it for the reasons which it gave. The Applicants’ disagreement with the Tribunal's findings seeks impermissible merits review.
I note that in oral submissions the First Applicant asserted that she came from a small rural village. Such an assertion also takes issue with the Tribunal's factual findings and seeks impermissible merits review. In light of the information before the Tribunal (put to the First Applicant at the hearing) it cannot be said that the Tribunal’s findings about her circumstances and background were illogical or unreasonable. Moreover, while the First Applicant’s claims that related to the eviction of her parents from farms were not expressly referred to in the Tribunal's findings, the Tribunal's finding in relation to the circumstances of the First Applicant’s parents necessarily involved a rejection of her claims about their alleged eviction from a pig farm and fish farm in a village and the consequences of such asserted action. The Tribunal proceeded on the basis that since 2002 the First Applicant's father had held a senior and well-paid position in a business in Fuqing City, a major urban centre. Ground one does not establish jurisdictional error.
Ground two takes issue with the fact that the Tribunal concluded that the First Applicant's parents could help her. This was said to be “irrelevant”. The First Applicant's claims on her own behalf included claims in relation to difficulties she would face in supporting her daughter, in particular whether she would be able to pay a social compensation fee to register her daughter. In that context it was not irrelevant for the Tribunal to consider whether the First Applicant’s parents could assist. It has not been established that the Tribunal took into account a consideration that was not open to it to take into account or that its reasoning in this respect was irrational or illogical. It is the case that the Tribunal decided that it had no jurisdiction in relation to the Applicant child. However its discussion of the evidence about the parents’ ability to assist the Applicant mother was in the context of considering her claims, including her claims that she may face discrimination or other consequences because her child was born out of wedlock. Insofar as the First Applicant reiterated this concern in oral submissions and claimed that her parents were old and could not look after her, she seeks impermissible merits review. Ground 2 is not made out.
The third ground takes issue with the fact that the Tribunal did not “consider” the Applicant’s daughter in the application. This was said to be the agent’s “fault”. The First Applicant claimed she “should be innocent” and that the Tribunal “made a mistake not to consider [the] daughter”.
On its face this ground asserts that the failure to include the daughter in the review application was the fault of the Applicants’ migration agent. There is, however, nothing in the material before the Court or in the First Applicant’s oral submissions to raise any suggestion or concern as to any possibility that there was some fraud on the Tribunal on the part of the migration agent in the sense considered in SZFDE and Others v Minister for Immigration and Citizenship and Another (2007) 232 CLR 189; [2007] HCA 35.
It is well-established that mere negligence or inadvertence on the part of a migration agent will not, of itself, be sufficient to give rise to fraud on the Tribunal; Minister for Immigration and Citizenship v SZLIXand Another (2008) 245 ALR 501; [2008] FCAFC 17. Thus, even if it was the case that the agent was negligent or inadvertently failed to include the child in the review application, this would not of itself demonstrate jurisdictional error or affect the validity of the Tribunal decision in relation to the child.
An issue arose on the material before the Court as to whether the child was properly notified of the delegate’s decision. Such notification (in accordance with the Act and Regulations) would be a prerequisite to the application of the time limits in relation to an application for review by the Tribunal. The Minister’s solicitors provided helpful written submissions and further affidavit evidence.
In addressing the issue of its jurisdiction in relation to the application for review lodged for the child, the Tribunal observed generally that “the applicant” was notified of the delegate’s decision by letter dated 30 July 2013 and dispatched by post. While satisfied that the “applicant” was notified of the decision in accordance with the statutory requirements, the Tribunal did not explain whether this was by virtue of direct notification to the child or notification to the mother and, if so, how that met the requirements of the Migration Act and Regulations. Nor did it make a finding as to when the letter was dispatched by post.
It is necessary to consider whether the Applicant child was properly notified of the delegate’s decision of 30 July 2013. The notification of the delegate’s decision was sent to the address of the former migration agent enclosing a letter addressed to the Applicant mother notifying her that the application for the visa had been refused for both herself and her daughter.
Section 494B(1A) of the Act provides that:
If a person is a minor the Minister may use the methods in 494B(4), relevantly, and (5) to dispatch or transmit a document to an individual who is a carer of the minor:
(b) who the Minister reasonably believes:
(i) has day to day care and responsibility for the minor –
If that occurs, then under s.494B(7) the Minister is taken to have given the document to the minor. There is no suggestion in this case that the mother is not the carer of the daughter, who is a minor. The birth certificate lodged with the application seeking to include the daughter in the mother’s protection visa application records the relationship and specifies the date of the child’s birth in April 2013. The evidence of the mother, as recorded by the delegate and the Tribunal, supports an implication that she is her daughter’s carer. I am satisfied there is no dispute in that respect.
On that basis it follows that if a document was given to the Applicant mother in accordance with the provisions of the Migration Act and Regulations it would be taken to have been given to the daughter.
For the sake of completeness, I note that if that were not the case, under s.52(3C) of the Act if two or more non-citizens apply for visas together in accordance with the Regulations, then notifications given to any of them about the application are taken to be given to each of them.
Regulation 2.08 of the Migration Regulations provides that if a child is born after a non-citizen applies for a visa, but before the application is decided by the delegate, the child’s application is taken to be combined with that of the parent. This child was born after the mother’s application for a protection visa and before it was decided by the delegate. On that basis the daughter was included in her mother’s application. Thus notification to the mother would constitute notification to both the mother and her daughter.
Hence the issue is whether there was notification of the decision of the delegate to the mother in accordance with the Migration Act and Regulations. In particular having regard to the Minister’s obligation to give documents to an authorised recipient in accordance with s.494D of the Act and the fact that if the Minister (through the delegate) gave a document to the mother’s authorised recipient the Minister would be taken to have given the document to the mother (s.494D(2)).
The Courtbook contains material that indicates that on 26 November 2012 the Applicant mother (who provided a Punchbowl residential address) appointed a migration agent (a Ms Qian) as her authorised recipient and migration agent in connection with her protection visa application. However on 15 March 2013 the Department wrote to the First Applicant at her Punchbowl address advising her that Ms Qian’s registration as a migration agent had been cancelled by the Office of the Migration Agents Registration Authority so that she was not able to provide the First Applicant with immigration assistance.
Under the heading “Your Authorised Recipient”, the letter explained that the First Applicant had also appointed Ms Qian as her authorised recipient (being the person she had chosen to receive written communications about her application on her behalf) and that the cancellation of Ms Qian’s registration as a migration agent had no effect on her appointment as an authorised recipient so that the Department must continue sending correspondence about the application to Ms Qian.
Under the heading “Ending the Appointment of Your Cancelled Migration Agent as Your Authorised Recipient” the letter advised the mother that she may choose to end the appointment of Ms Qian as authorised recipient and that to do so she would need to write to the Department stating she wished to do so or that she could use the attached Form 956A (Appointment or Withdrawal of Authorised Recipient) to remove the cancelled migration agent as authorised recipient. The First Applicant was advised that if she did this, the Department would then only send written communications about the application to her. Further information was provided as to the address to which such a form should be sent and advising the First Applicant to complete a Form 956 if she wanted to choose a new authorised recipient. The letter reiterated that in the meantime the Department would continue sending documents “to your suspended/ cancelled migration agent” as authorised recipient unless the First Applicant “advised [them] in writing otherwise”.
The First Applicant did not complete a Form 956A or 956. Rather, on 18 March 2013 she lodged a Form 929. This form is headed “Change of address and/or passport details”. On that form the Applicant provided an Auburn address as her residential address and for correspondence. She did not complete the section relating to an authorised recipient’s new contact details.
The Department continued to communicate with the First Applicant through the former migration agent, Ms Qian. By letter dated 17 May 2013 (sic) the Department notified Ms Qian that the First Applicant had authorised her to receive correspondence and enclosed an invitation to an interview addressed to the First Applicant (at her new Auburn address) (a copy of which was also sent directly to the First Applicant).
The First Applicant subsequently wrote to the Department about whether or not her child should be included on the protection visa application. Initially she indicated that she did not want the child to be included, but on 21 June 2013 the Department received completed Forms B and D for the child and a copy of the child’s birth certificate. As indicated, the delegate’s decision of 30 July 2013 was sent to Ms Qian enclosing a letter addressed to the Applicant mother notifying her that the visa applications had been refused.
I note that when the Applicant mother sought review by the Tribunal, she provided her Auburn residential address but also nominated Ms Qian as her authorised recipient.
Thus, after the Department wrote to the mother informing her that her authorised recipient’s registration as a migration agent had been cancelled and that she may choose to end the appointment (and suggesting that to do so she would need to write to the Department stating she wished to do so or use a Form 956A), the mother did not do either of those things. She filed a change of address form changing her residential address, although there is no evidence as to whether this was in response to the Department’s letter. The issue that arises is whether the change of address form had the effect of impliedly withdrawing the mother’s original notification to the Department authorising her migration agent to act as authorised recipient.
As Perram J discussed in SZLWE v Minister for Immigration & Anor [2008] FCA 1343, an authority given to an authorised recipient may be varied or withdrawn at any time (and see s.494D(3) of the Act). The withdrawal need not be express, but if it is not there needs to be conduct by an Applicant from which withdrawal may be implied or inferred.
Notwithstanding that the Department in this case advised the Applicant that she should write to the Department indicating that she wished to withdraw the nomination as an authorised recipient, there are no mandatory procedures for the method of withdrawal of the nomination of a person as an authorised recipient. As is clear from SZLWE (and also see Nawaz v Minister for Immigration and Citizenship and Another (2013) 136 ALD 347; [2013] FCCA 545) such authority may in fact be withdrawn orally and a withdrawal may be implied from what is said between an applicant and the Department (or, where relevant, the Tribunal). In other words, it is not necessary that withdrawal be done in writing or by completion of a specified form.
However in this case (unlike in SZLWE and Nawaz) there is no evidence of any discussion between the First Applicant and the Department in relation to any change of her authorised recipient. Rather, while there is evidence of a completed Form 929 there was ongoing communication with the authorised recipient by the Department. Subsequently, the First Applicant nominated the same person as her authorised recipient in her review application.
At the time of the original application for a protection visa the Applicant mother identified her residential address in the application as a Punchbowl address and lodged a Form 956 advising of the appointment of Ms Qian as migration agent and also as her authorised recipient. She provided Ms Qian’s post office box number as the address for notification of correspondence to the authorised recipient.
As indicated, the Department notified the mother by letter of 15 March 2013 of the cancellation of Ms Qian’s registration as a migration agent, but that her appointment and nomination as authorised recipient continued until brought to an end by the Applicant and suggested that she may choose to end the nomination by writing to the Department stating that she wished to end the appointment or by using a Form 956A. She did not take either of those steps.
In some instances lodging a Form 929 changing an address might in the circumstances of the particular case lead or contribute to the drawing of an inference that the appointment of an authorised recipient had been brought to an end. However I am not satisfied that this is such a case. The evidence is not such as to lead to an implication that at any time while the matter was before the delegate (or the Tribunal) the nomination of the authorised recipient to receive correspondence on the mother’s behalf was brought to an end by her. First, the mother was informed by the Department that to withdraw the authority of the former migration agent to act as her authorised recipient she would need to write to the Department stating she wished to do so, or use the attached Form 956A. Whether or not this was legally correct, it is relevant that the First Applicant did not write to or otherwise communicate with the Department stating she wished to end the appointment of Ms Qian as an authorised recipient. She did not complete a Form 956A (which specifically states it is to be used for appointment or withdrawal of appointment of an authorised recipient). Further, the Form 929 that the mother did lodge contains information that to update her authorised recipient’s contact details she was to use a different form. There is no suggestion from the First Applicant, and no evidence to establish, that the Form 929 was intended by her to bring the nomination of the appointment of her authorised recipient to an end.
Further, the Form 929 on its face appears only to change the First Applicant’s residential address. The Department confirmed that Ms Qian was the authorised recipient and that the Applicant’s mother’s residential address was the new residential address she had provided in the Form 929. The authorised recipient continued to receive and lodge correspondence on behalf of the Applicant mother, apparently including a letter and completed application forms sent to the Department in June 2013 in relation to the inclusion of the child in the application (and the application for review by the Tribunal).
The circumstances of this case are not comparable to those considered in SZLWE. In SZLWE there was discussion during a Tribunal hearing as to whether a Tribunal decision would be sent to an appellant after his authorised recipient had been suspended as a migration agent. The appellant indicated that he wished the decision to be sent to him. It was in those circumstances that Perram J found that it could reasonably be inferred that the Tribunal was informed that the migration agent’s authority was no longer extant and concluded that his authority as authorised recipient had been withdrawn.
Similarly in Nawaz, Judge Riley concluded (in circumstances where the migration agent’s registration had been cancelled) that in an interview with a departmental officer the applicant had impliedly withdrawn the nomination of the migration agent as authorised recipient. Her Honour had regard to the overall effect of the interview, finding that it was sufficiently clear that the applicant, albeit with the encouragement of the departmental interviewer, had conveyed to the interviewer that he no longer wanted the ex-migration agent to be his authorised recipient and that that constituted a withdrawal of the nomination. As her Honour stated in Nawaz (at [57]):
The issue was whether the Applicant in dealings with the Department impliedly withdrew the nomination of the person as authorised recipient.
In contrast, in this case the Applicant’s mother’s dealings with the Department in all the circumstances are not such as to amount to impliedly withdrawing the nomination of Ms Qian as the mother’s authorised recipient. As submitted by the First Respondent in detailed supplementary written submissions, in the particular circumstances of this case I am not satisfied that there was an implied withdrawal of the mother’s prior notice to the Department authorising the mother’s agent Ms Qian to act as her authorised recipient, whether by completion of the Form 929 or in any other way.
Hence notification of the delegate’s decision to the authorised recipient was notification to the mother of the delegate’s decision.
Given that notification of the delegate’s decision to the mother is also taken to be notification to the child, it is relevant that in an affidavit affirmed on 26 August 2015 Clyde Ernest Hungerford attested to the fact that the notification letter from the delegate addressed to the authorised recipient was sent by registered mail on 31 July 2013 (one day after the date of the delegate’s decision) to the address provided for the authorised recipient.
The notification met the requirements of s.494B(4) of the Act which is as follows:
Another method consists of the Minister dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or
(iii) if the recipient is a minor--the last address for a carer of the minor that is known by the Minister.
The notification to the mother was, whether by virtue of s.494B(7) or by virtue of the operation of s.52(3C) of the Act, sufficiently communicated such as to amount to notification to the daughter and to bring into play the time limits on an application for review by the Tribunal.
I note that the Minister also filed and relied on an affidavit of Martha Maria Kelly (the case officer who considered the applications for protection lodged by the mother and the daughter) in support of the proposition that in addition to notifying the Applicant mother by the letter sent by registered post to the authorised recipient, the delegate also sent a copy of her decision by pre-paid post (albeit not by registered mail) to the Applicant mother (which, as indicated, would also amount to notification of the daughter).
Ms Kelly’s evidence is that her invariable practice was that where an authorised recipient had been appointed, the original decision record and letter would be sent to the authorised recipient and a courtesy copy sent to the Applicant care of the Applicant’s last known postal address. Ms Kelly gave evidence that she had not only placed the decision notification documents in a letter addressed to the former migration agent which was to be sent by registered post, but that she also put a copy of the decision record in an envelope she addressed to the Applicant at the address she had notified in the Form 929 she lodged with the Department. She placed these letters in the mail tray (which she knew to be cleared by mailroom staff at 3 pm every day).
I am satisfied on the basis of this evidence that a decision notification addressed to the Applicant was placed in the mail tray within three days of the date of the delegate’s decision. However, unlike the evidence in Mr Hungerford’s affidavit about the letter sent to the authorised recipient by registered mail, Ms Kelly’s evidence may not go so far as to establish that the letter addressed to the Applicant mother was actually dispatched within s.494B(4) of the Act.
I do not consider that that is necessary to determine whether I can infer that such dispatch occurred and thus be satisfied that the Applicant mother was notified directly by mail of the delegate’s decision, as I am satisfied that by the letter sent by registered mail to Ms Qian the Applicant mother was notified (on her own behalf and on behalf of her daughter) of the delegate’s decision in accordance with the requirements of the Migration Act and Regulations.
On that basis both Applicants were taken to have been notified of the delegate’s decision on 8 August 2013. The prescribed period for both Applicants to seek review ended on 5 September 2013. As the application for review in respect of the child was not received by the Tribunal until 13 September 2013, it was out of time. The Tribunal correctly found that it had no jurisdiction in relation to the Applicant child.
In those circumstances and as no jurisdictional error has been established on any of the bases contended for by the Applicants, the application must be dismissed.
The Applicants have been unsuccessful. The Minister seeks that the First Applicant pay his costs in the scale amount at the time of the application (being $6,646). I am satisfied in the circumstances of this case that this is an appropriate and reasonable amount.
The Applicant mother indicated that she was a single mother and could not pay this amount in “one go”. The Applicant’s lack of funds is not a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent and I am not satisfied that it is a reason for making an order as to repayment by instalments or reducing the amount of the costs order. It may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Barnes.
Associate:
Date: 14 October 2015
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