SZVRF v Minister for Immigration

[2016] FCCA 536

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVRF v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 536

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal (now Administrative Appeals Tribunal) – no jurisdictional error

Legislation:

Migration Act 1958 (Cth), ss.65, 425

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
Dranichnikovv Minister for Immigration and Multicultural Affairs [2000] FCA 1801
Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; [2001] HCA 1802
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; [2010] FCAFC 41
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2
SZATG v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 215 ALR 358; [2005] FCA 1595

Applicant: SZVRF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3199 of 2014

Judgment of: Judge Barnes

Hearing date: 4 March 2016

Delivered at: Sydney

Delivered on: 4 March 2016

REPRESENTATION

Solicitors for the Applicant: In Person

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The name of the Second Respondent be amended to read Administrative Appeals Tribunal.

2. The application be dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $4,700.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3199 of 2014

SZVRF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) dated 17 October 2014 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.

2. The Applicant, a citizen of Pakistan, arrived in Australia in February 2012 and applied for protection in October 2013.  His claims for protection were set out in the protection visa application and an accompanying statutory declaration.  He claimed, in essence, that as a member of the minority Muslim Shia group he feared persecution from extremist Sunnis in Pakistan, that he was bullied by students linked to Islamic extremist groups for reason of his religion and that he was bashed and mistreated after moving to Rawalpindi.

3. The Applicant was invited to attend a departmental interview.  It appears from the delegate’s decision that he did not respond and did not attend the scheduled interview.  His application was refused by the delegate on 24 January 2014.  Given the failure of the Applicant to attend an interview, the delegate was unable to be satisfied that he met the criteria for a protection visa.

4. The Applicant sought review by the Tribunal.  In his application for review the Applicant did not indicate that he wished to appoint an authorised recipient or that he had the assistance of a migration agent.  He provided a postal address to which correspondence about the application should be sent (which I will refer to for convenience as the Auburn address).

5. On 19 February 2014 the Tribunal wrote to the Applicant at the Auburn address acknowledging receipt of his application.  It also advised him that if he wanted to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible. 

6. On 26 August 2014 the Tribunal wrote to the Applicant at the Auburn address inviting him to attend a Tribunal hearing on 16 October 2014 to give evidence and present arguments relating to the issues arising in his case.  Relevantly, in that letter the Tribunal informed the Applicant that it had considered the material before it but was unable to make a favourable decision on that information alone.  It advised the Applicant of the time, date and place of the hearing.  It also informed him that if he was not able to attend he should advise as soon as possible; that the Tribunal would only change the date if there was a very good reason; and that if he did not attend the scheduled hearing the Tribunal may make a decision without taking any further action to allow or enable him to appear before it.

7. Information about the Tribunal hearing was provided.  The Applicant was asked to read and complete an enclosed Response to Hearing Invitation Form to confirm his attendance and to attach additional information if he had any new information he wished the Tribunal to consider.  Under the heading “Who Will Take Part in the Tribunal Hearing” and above the part of the form in which the Applicant was to indicate whether he would do so, the Response to Hearing Invitation Form advised the Applicant that if he selected “no” in response to the question about taking part in the hearing, the Tribunal may make a decision on the application for review without taking any further action to allow or enable him to appear before it. 

8. It appears from the Courtbook that by 13 October 2014 no response had been received to the invitation.  A Tribunal officer recorded that, at the member’s request, the Tribunal sent a text to the Applicant’s mobile telephone number asking him to confirm hearing attendance.

9. On 15 October 2014 the Tribunal received a completed and signed Response to Hearing Invitation Form in which the Applicant indicated “no” in response to the question, “Will you take part in the Tribunal hearing scheduled for 16 October 2014?”.  He provided a letter which was said to be an outline of submissions.  However that document merely repeated the claims that had been made in the Applicant’s statutory declaration provided to the Department.

10. The Applicant did not attend the hearing and the Tribunal made its decision on 17 October 2014.

11. In its reasons for decision the Tribunal recorded that the Applicant had not appeared at a departmental interview; described the invitation to a Tribunal hearing and recorded that it had advised him that it had considered all the material before it but was unable to make a favourable decision on the information before it and also that if he did not attend the hearing it may make a decision on his case without further notice.  The Tribunal found that the hearing invitation letter had been sent to the address given by the Applicant as his address for correspondence in his review application form.

12. The Tribunal also referred to receipt of the completed Response to Hearing Invitation Form and the Applicant’s written submission.  It observed that the submission was identical to the claims in the protection visa application and statutory declaration, that there had been no further contact from the Applicant and that he did not appear at the Tribunal hearing. 

13. The Tribunal was satisfied that the Applicant had been invited to appear before it; that the hearing invitation was sent to the correct address; that the Applicant had consented to the Tribunal deciding the review without him appearing before it; and that in these circumstances under s.425(2)(b) of the Migration Act 1958 (Cth) (the Act) it could make its decision on the review without taking any further action to enable the Applicant to appear before it.

14. The Tribunal found that the Applicant’s claims as presented to the Department and in his submissions to the Tribunal were not sufficiently detailed to enable it to be satisfied that he held a well-founded fear of persecution for a Convention reason. 

15. It summarised the Applicant’s claims (as set out in his protection visa application form, statutory declaration and submission to the Tribunal) to fear persecution in Pakistan as a Shia Muslim, in particular in Rawalpindi.

16. The Tribunal stated that it had carefully considered these claims, including the Applicant’s claims about being mistreated by extremist Sunnis in his home area and in Rawalpindi, but found that there were a number of issues on which it required further clarification from the Applicant.  It found that the Applicant’s claims about being attacked were very broad and general and that in order to determine whether or not he had been harmed in Pakistan and to what degree, it needed to question him closely about the various instances of harm he claimed to have suffered.

17. The Tribunal set out in some detail the sort of information about which it would need to know and would have questioned the Applicant, including in relation to his claims about past harm, whether he was involved in religious activities which could place him at greater risk as well as about activities and harm suffered by family members.  It also indicated that it would need to question him closely about what efforts he had made to seek protection from the authorities he said could not protect him and why he returned to Pakistan in April 2013 when he claimed he came to Australia in February 2012 because his life was in danger.  It acknowledged his claim that he visited his mother, but indicated that it would need to know more about his mother’s precise circumstances, what warranted his return to a country where he said his life was in danger, and what happened during that return trip.  The Tribunal also indicated that it needed to question the Applicant about his delay in applying for protection.

18. The Tribunal acknowledged that with his visa application the Applicant had provided some media articles which related to harm being suffered by Shias in Pakistan.  However it was not satisfied from that information that because the Applicant was a Shia there was a real chance he would suffer serious harm.  The Tribunal indicated that to be able to make that assessment it needed more precise evidence about the Applicant’s life in Pakistan and the issues it had set out, in particular, what harm he had actually suffered.  It also indicated that in the absence of other evidence to support the claim it needed to question the Applicant about the Shia faith to be certain that he belonged to that sect.

19. The Tribunal found that without further evidence from the Applicant on these issues it was not satisfied that he had suffered persecution in the past and that his fear of suffering persecution based on a Convention ground in the future was well-founded. 

20. Similarly, with respect to the complementary protection criterion, without further evidence from the Applicant on the issues outlined, the Tribunal was not satisfied that that criterion was met.  It affirmed the decision not to grant the Applicant a protection visa.

21. The Applicant sought review by application filed in this court on 18 November 2014.  He filed an accompanying affidavit which takes the form of submissions.  He did not otherwise file written submissions, but had the opportunity today to make oral submissions. 

22. It is convenient to consider first the grounds in the Application. 

23. Under the heading “grounds of application”, there are some 21 numbered paragraphs which combine submissions and assertions of error by the Tribunal.  Helpfully, in written submissions the solicitors for the First Respondent grouped (in a manner I consider appropriate), the various paragraphs that appear under the heading grounds of application.  It is convenient to follow that format in considering these “grounds” before addressing the issues raised in the affidavit of 18 November 2014 and what the Applicant said today.

24. In essence “grounds” 1, 2, 3, 9 and 20 in the Application assert that the Tribunal erred by not advising the Applicant that the information he had provided was insufficient.  First, I note that the Tribunal accurately recorded in its reasons for decision the information that the Applicant did provide to it.  It referred to his protection visa application (in which he made claims), his statutory declaration, media articles and the document in the form of a submission reiterating his claims.

25. To the extent that the Applicant asserted that the Tribunal was under an obligation to inform him that this (or any part of this) information was insufficient and to ask him for more information, this perhaps reflects a misconception or misunderstanding as to the applicable statutory regime. The Tribunal was required to reach a positive state of satisfaction in order to find that the Applicant was owed protection obligations pursuant to s.65 of the Migration Act (see Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [17]).

26. It was not required to forewarn the Applicant as to its view of the adequacy of material before it in the manner in which the Applicant submits (see SZATG v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 215 ALR 358; [2005] FCA 1595 at [36] and Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; [2010] FCAFC 41 at [22]).

27. Nevertheless in this case the Applicant ought to have been aware from the delegate’s decision that the material before the delegate was insufficient to satisfy the delegate of his claims.  He was given the opportunity by the Tribunal’s letter of 19 February 2014 to provide further material or written arguments.  Critically, in the hearing invitation letter, he was informed by the Tribunal that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone.

28. The Applicant did provide a document in the form of submissions thereafter, but, as indicated, that merely repeated the claims that he had already made to the delegate.  There is no substance in any of these grounds insofar as they assert that the Tribunal erred by not advising the Applicant (beyond the hearing invitation letter) that the information he had provided was insufficient.

29. In particular, there was no obligation on the Tribunal after receipt of the Applicant’s written submission to advise him of its thought processes or view of the sufficiency of that submission or all the information he had provided (see Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1). Insofar as it may have been intended to be contended that there was an obligation on the Tribunal to contact the Applicant thereafter, whether to advise him that the information he had provided was insufficient or to ask him for further information, it was under no such obligation. These “grounds” are not made out.

30. Associated with these grounds, it was asserted in ground 10 in the Application that the hearing form sent to the Applicant gave him an option to provide submissions instead of attending the hearing and that the Applicant “complied”.  However the hearing invitation did not give the Applicant an “option”, to provide submissions.  Nor, on the other hand, did it state that attendance at the hearing was mandatory, as appeared to be asserted in the Applicant’s affidavit.  Rather, the Tribunal advised him that it had considered the material before it but was unable to make a favourable decision on this information, invited him to appear to give evidence and present arguments relating to the issues arising in his case and informed him if he did not do so, it may make a decision without taking further action to allow or enable him to appear. 

31. The purpose of the hearing was explained further in the information about Tribunal hearings provided.  The advice that if the Applicant did not appear the Tribunal may make a decision without taking further action to allow or enable him to appear was reiterated in the Response to Hearing Invitation Form which the Applicant completed and signed.

32. It was open to the Applicant to provide a submission as he did, but this neither compelled the Tribunal to find in his favour or to return to him for comment or to invite him to a further hearing.  Insofar as paragraph 10 can be seen as a ground, it does not establish jurisdictional error.

33. Somewhat confusingly in “ground” 11 it is asserted that “[y]et later the applicant was sent a letter dated 20/10/14 that Tribunal is unable to make a decision as it needs more information and hence affirmed the delegate’s decision”.

34. This seems to confuse the advice to that effect in the hearing invitation of 26 August 2014 and the fact that the Tribunal sent its decision to the Applicant under cover of letter of 20 October 2014 in which it referred to its hearing invitation letter.  It does not establish any jurisdictional error.

35. Ground 16 is that:

    The tribunal simply presumed that since they need more information to which they cannot be bothered, it is legitimate to refuse to review the decision and affirm the delegate’s decision, gives rise to an error of law.

36. The Tribunal did not proceed on the basis of a presumption that gave rise to or indicated any error of law, let alone a jurisdictional error. The Tribunal properly understood its obligation to invite the Applicant to a hearing in accordance with s.425 of the Act. There is nothing in the material before the court to suggest that there was any failure to comply with the requirements of the Act in relation to the content or the sending of the notice of the invitation to the hearing. I note that it is apparent that the Applicant received the invitation as he completed and returned the Response to Hearing Invitation Form.

37. The Tribunal understood that its obligation under s.425(1) of the Act would not apply if the Applicant consented to it deciding the review without appearing before it and correctly formed the view that in completing the Response to Hearing Invitation Form indicating that he would not take part in the Tribunal hearing the Applicant gave such consent. The Tribunal did not refuse or fail to review the delegate’s decision, rather it carried out a review on the material before it. It was not obliged to seek information to make out the Applicant’s case. It has not been established that it fell into jurisdictional error in this respect. Ground 16 is not made out.

38. Ground 4 is that the Tribunal applied “incorrect interpretation and incorrect application to the facts of the applicable law”.  In the absence of further particulars, this ground is not made out.  Contrary to the Applicant’s contention, it is apparent from the Tribunal’s reasons for decision that it applied the correct law.  I am satisfied that it made findings of fact that were reasonably open to it on the material and evidence before it. 

39. The Tribunal did not simply find that because the Applicant had not attended the hearing, the decision would be adverse.  Rather, it considered such material as was before it from the Applicant (including his written submissions), set out his claims and referred in some detail to the issues on which it required further clarification before it could be satisfied that he met either the Refugees Convention criterion or the complementary protection criterion.  Ground 4 is not made out.

40. The first particular to ground 5 and grounds 8, 12, 13 and 14 in essence assert that the Tribunal denied the Applicant procedural fairness, in part by not requesting relevant material or information from him.  In support of these propositions, the Applicant referred (in paragraphs 12 and 13 of the so-called “grounds”), to Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2 and Kioa v West (1985) 159 CLR 550; [1985] HCA 81 insofar as these authorities referred to the Tribunal’s procedural fairness obligations, in particular, the application of common law procedural fairness obligations.

41. These extracts are followed by the assertion in ground 14 that it was the Applicant’s legitimate expectation that if the Tribunal needed more information it would contact him and ask for it.  It was suggested that the Tribunal had acted in breach of procedural fairness in refusing to review its decision.  Again, the Tribunal was not under an obligation to return to the Applicant to seek further information if the information before it was insufficient for it to be satisfied that the Applicant met the criteria for the class of visa for which he had applied.

1. There is nothing in the material before the court to support any contention that the Tribunal failed to comply with its procedural fairness obligations in Division 4 of Part 7 of the Act.  Nor is there anything to support any more general assertion of a failure to afford the Applicant procedural fairness.

2. In the invitation to the hearing the Tribunal informed the Applicant that it had considered the material before it but was unable to make a favourable decision on that information alone and advised him that if he did not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable him to appear before it.

3. Despite being informed of these matters, the Applicant chose not to participate in the Tribunal hearing. The Tribunal sent the Applicant the requisite hearing invitation. As indicated, there is nothing to suggest that it failed to comply with any statutory requirements as to content or dispatch. The invitation was clearly received by the Applicant and the Applicant then made a decision not to attend the hearing. As indicated, the Tribunal was correct to find that this amounted to a consent by the Applicant that the Tribunal decide the review without the Applicant appearing before it, as provided for in s.425(2)(b) of the Act. In those circumstances, under s.425(3), the Applicant was not entitled to appear before the Tribunal, thus putting paid to any suggestion that the Tribunal was in some way obliged to extend a further invitation to the Applicant if the information he provided was insufficient. It was open to the Tribunal to make its decision on the material before it as it did. These grounds are not made out.

4. Particular (b) to ground 5 and grounds 6 and 7 assert that the Tribunal failed to exercise the discretion given by the legislation, engaged in an inflexible application of policy, considered itself bound by the findings of the delegate and did not make its own inquiries.  However given that the Applicant did not provide any substantial new material to the Tribunal (and the submissions repeated the claims that had been made to the delegate) there is nothing in the material before the court to support any contention that the Tribunal in some way erred in failing to make further inquiries and coming to the same conclusion (albeit for its own reasons) as the conclusion to which the delegate came.

5. The Tribunal did not simply note the absence of further material and affirm the delegate’s decision.  As indicated, it engaged in a discussion of the issues about which it wished to question the Applicant.  The fact that its decision reflected a lack of satisfaction in the absence of further clarification by the Applicant (as did the delegate’s decision) is unsurprising, given the Applicant’s failure to attend both the interview and the Tribunal hearing.  It is not indicative of jurisdictional error.

6. It is apparent from the Tribunal’s decision that it conducted a de novo merits review.  It did not consider itself bound by the delegate’s findings.  It was, however, under no obligation to inquire in the circumstances of this case as contended for by the Applicant (see Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [36]). It was for the Applicant to present such evidence and advance such submissions as he considered relevant to his application and not for the Tribunal to make out the Applicant’s case for him (compare Kioa v West (1985) 159 CLR 550; [1985] HCA 81 at [587] per Mason J). These grounds are not made out.

7. Ground 15 refers to a remark of Mason J in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 about the traditional common law principle that an absence of evidence to sustain a finding or inference of fact gives rise to an error of law. However in this case the Tribunal’s findings were reasonably open to it on the evidence and material before it. It is not an error of law for the Tribunal not to be satisfied on the information provided by an Applicant that he meets the criteria for a protection visa in circumstances such as the present. This ground is not made out.

8. Grounds 17 and 20 assert, in essence, unreasonableness on the part of the Tribunal.  The First Respondent submitted that an argument of legal unreasonableness could only rise in relation to the exercise of discretion by the Tribunal.  It is not necessary to determine for the purposes of these proceedings the scope of unreasonableness in relation to a Tribunal decision (as distinct from the exercise of a discretion), as there is nothing in this decision which might be categorised as unreasonable, illogical or irrational as is the essence of what is asserted in ground 17.

9. There is nothing in the material before the court to suggest any illogicality on the part of the Tribunal in its reasoning.  If reasonable minds might differ a decision will not be set aside for jurisdictional error as illogical, irrational or unreasonable merely because one conclusion has been preferred to another (see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at 648, [131]). The Tribunal’s findings were reasonably open to it on the evidence and material before it. Insofar as the Applicant (in this or any of the other grounds) seeks merits review, merits review is not available in this court.

10. Further, insofar as there is said to be unreasonableness because the Tribunal should have contacted the Applicant, this is not made out.  It would have been open to the Tribunal, had it wished to do so, to contact the Applicant again, but it was under no obligation to do so in circumstances where it had met its statutory obligations to the Applicant and he had, in indicating that he did not wish to participate in the hearing, also indicated that he consented to the Tribunal deciding the review without him appearing before it.  It cannot be said that the manner in which the Tribunal proceeded demonstrated unreasonableness in any way (see Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332; [2013] HCA 18). These grounds are not made out.

11. Grounds 18 and 19 take issue with the Tribunal’s consideration of the Applicant’s claim by reference to its obligation under s.414 of the Act to review a decision if a valid application is made.  Paragraph 18 refers to the remarks of Allsop J (as he then was) in Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; [2001] HCA 1802 to the effect that to make a decision without having considered all the claims is to fail to complete the exercise embarked upon. However in this case there is nothing to suggest that the Tribunal failed to consider the Applicant’s claims or any integers of the Applicant’s claims.

12. In ground 19 reference is made to Dranichnikov (albeit to the decision of the Full Court of the Federal Court at Dranichnikovv Minister for Immigration and Multicultural Affairs [2000] FCA 1801 [49]) in relation to the Tribunal’s obligation to deal with the case raised by the material and evidence before it and the fact that an applicant does not have to pick the correct Convention label to describe his or her plight.

13. However the Tribunal considered the totality of the Applicant’s claims on the limited evidence and material before it and in light of the Applicant’s decision not to elaborate further on those claims by attending a Tribunal hearing.  It did not base its decision on a particular unidentified Convention ground.  It has not been established that the Tribunal failed to consider the Applicant’s claims in the manner contended for in grounds 18 or 19 or more generally.

14. Ground 21 is simply a conclusion that the decision was affected by jurisdictional error and asserts the Applicant should be given justice.  As indicated, there is nothing in the material before the court to establish, either on the grounds contended for or on some other basis, that the Tribunal’s decision or procedures were affected by jurisdictional error. 

15. For the sake of completeness, I note that in the affidavit accompanying the application the Applicant claimed to be a refugee, suggested that there was jurisdictional error and reiterated his concern that the Tribunal had not disclosed that it needed further information.  I have addressed such claim.  The Tribunal did indicate that it was not able to make a favourable decision on the material before it in the hearing invitation.  It was not obliged to advise the Applicant of its thought processes in relation to his written submission. 

16. Insofar as it is asserted in the affidavit that the Tribunal made an error by not telling the Applicant that attendance at the “interview” was mandatory, attendance at the interview (or the hearing) was not mandatory.  The Tribunal correctly informed the Applicant that he had the opportunity to attend a hearing and that if he did not do so a decision may be made without taking any further steps to allow or enable him to appear before it.  It also informed him that it could not make a favourable decision on the material before it and in the Response to Hearing Invitation Form it was reiterated that if he selected “no” in response to the question about participating in the hearing it may make a decision without taking any further action to allow or enable him to appear.  This assertion does not establish jurisdictional error.

17. Insofar as the affidavit also asserted that the Applicant was not advised that failure to attend an interview would result in refusal of his protection claim, while not put in those terms, in the hearing invitation letter the Tribunal advised the Applicant that it had considered the material before it but was unable to make a favourable decision on that information alone.  He provided submissions – but they merely repeated his claim.  Nothing in the affidavit establishes jurisdictional error.

18. In oral submissions the Applicant complained that he was not advised that his information was not sufficient.  I take this to refer to the submissions he provided to the Tribunal.  However as indicated the Tribunal was not under an obligation to advise the Applicant of the insufficiency of such information. 

19. As no jurisdictional error has been established on any of the grounds contended for by the Applicant, the application must be dismissed.

20. The Applicant has been unsuccessful.  The Minister seeks costs in the sum of $4,700.  The Applicant indicated that he was not able to pay costs because he does not have permission to work.  However, the Applicant’s lack of funds is not in itself a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent, although his lack of funds may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.

21. The amount sought is considerably below the indicative scale amount provided for in the Federal Circuit Court Rules. It is appropriate and reasonable in light of the circumstances of this matter and the nature of other similar matters.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 18 March 2016