FEDERAL COURT OF AUSTRALIA

Mukto v Minister for Immigration & Multicultural [1999] FCA 1801

MIGRATION – refugees – application for review of Refugee Review Tribunal decision – application in common form asserting error of law – argument in favour of application entirely based on merits – unrepresented litigant – need for initial legal advice – resource implications of increasing and significant number of unrepresented migration litigants.

Migration Act 1958 (Cth) s 475, s 476

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 followed

SHAEK NUR ISLAM MUKTO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 123 of 1999

FRENCH J

8 DECEMBER 1999

PERTH

THE COURT ORDERS THAT:

1.         The application is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

EX TEMPORE REASONS FOR JUDGMENT

1                     This is an application for an order for review of a decision of the Refugee Review Tribunal made on 27 October 1999 in which the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa.  The applicant is Shaek Nur Islam Mukto, who says he is a citizen of Bangladesh.  He came to Australia on 20 May 1999 without a passport or any other identifying documents.  He lodged his application for a protection visa with the Department of Immigration and Multicultural Affairs on 17 June 1999 and on 11 August 1999 a delegate of the Minister refused to grant him a protection visa.

2                     He sought review of that decision before the Refugee Review Tribunal on 13 August.  The Tribunal published reasons for its decision on 27 October.  The Tribunal first set out in its reasons the relevant article of the Refugees Convention and the relevant law relating to the interpretation of that article.  It referred to Mr Mukto’s evidence and his claims as set  out in written submissions which had been made to the Department for Immigration and Multicultural Affairs, as set out in an interview with an officer of the Department, in written submissions to the Tribunal and oral evidence which he gave to the Tribunal on 18 October.

3                     Summarising, as best I can, the Tribunal’s reasons, it referred first to the applicant’s assertion that he was a citizen of Bangladesh, that he had left that country on a passport fraudulently taken out in another name and that a smuggler who brought him illegally to Australia had taken the passport away from him on the final leg of his journey to this country.  Reference was also made to various documents, including school certificates and letters of reference sent by Mr Mukto to the Department and to the Tribunal.  He said that they proved his identity and substantiated his claims.  He also lodged a number of news clippings on Bangladesh politics.

4                     Mr Mukto’s father, according to the materials and his assertions, had joined the BNP, which is now an opposition party in Bangladesh, in 1992 and had become a BNP general secretary at Khulna in the same year.  Mr Mukto had had to join the BNP himself in order to enter university in 1990 or 1992.  He had been entrusted with tasks of organising meetings and recruiting new members.  There had been continuous friction between the BNP and its rival organisation, the Awami League, which is now in government.  He left University College in 1994 and worked in his father’s shop from 1995 to 1997.  At the hearing before the Tribunal he said he had completed a full three years of study but had not passed the final exam.

5                     The Awami League replaced the BNP as governing party in 1996 but Mr Mukto continued his activity in the BNP which had rallies constantly disrupted by the Awami League.  He said that in 1997, his brother had been bashed and had gone to Malaysia to escape future harm.  He blamed the Awami League for this attack. He had gone into hiding from 1997 until 1999 and had been moving around Dhaka, Khulna and Jessore avoiding enemies.

6                     The Tribunal referred to discrepancies in the evidence about the dates of alleged incidents in this period.  It noted that initially Mr Mukto said his father had been bashed in February 1998.  He referred to a revenge strike on the Awami League which had occurred  in March 1998, corrected to December 1998.  It had involved physical attacks on members of that party and damage to property in the Awami League’s offices.  He also claimed to have been subjected to police harassment and to himself having been bashed by several Awami League members.  He claimed at the hearing that his father was a renowned businessman who owned many shops and that he was a valued adviser to the local Chamber of Commerce, but that his father and other shop owners had been plagued by mostly Awami League supporters trying to extort money from them.

7                     In 1996, he said his father ceased to hold office as BNP general secretary. Mr Mukto was to take his father’s place in politics so that his father could concentrate on business.  He claimed to have been the convener of the BNP at his university college.  He claimed also to have studied Bangla, English, Logic and Islamic Studies. The Tribunal found, however, that he did not appear to have a basic knowledge of the subjects he claimed to have studied.  It was put to him at the Tribunal that given his ignorance of the subjects he claimed to have studied it was unlikely that he had actually undergone the two and a half years to three years of university study claimed and that accordingly his assertion that he had been a top BNP official at university was not plausible.  Mr Mukto replied he had not been a very good student and  had twice failed his university exams.

8                     He related a series of occurrences in which he said BNP members had been killed by the Awami League, including one Wahiduzzaman Chanchal (also apparently Chonchal) of the BNP Student League in Khulna.  The Tribunal noted that some of the claimed killings are the subject of printed articles which he had submitted and that in all cases the BNP appeared to have blamed the Awami League for the killings.  Except for the murder of Chanchal in October 1998, the Tribunal could not locate published versions of the incidents other than what it described as the rather scrappy clippings submitted by Mr Mukto.

9                     Mr Mukto was asked about letters of reference he submitted which he claimed were genuine.  Many of them contained statements along the following lines:

(1)       “Government agencies framed many false cases against him and are trying to haul him up and put into prison.  He is actually escaping arrest and subsequent torture.”

This was in a letter from the BNP “assistant office secretary”.

(2)       “[The applicant] is an active and popular leader of the BNP at BL college…[H]e is the younger cousin of Mohammaad Rafikul Islam… [who] was killed by the terrors  (sic) when they did not find [the applicant].  Some false cases are issued against [the applicant] and now his life is at stake of death….”

This appeared over the signature of one Waheduzzaman designated “BNP Student Party, Daulatpur, Khulna”.  It was dated 15 August 1999.

(3)       “Many false cases have been lodged against [the applicant] by the present ruling party, Bangladesh Awami League.  He was wanted in those false cases.”

This statement was in a letter from an advocate in Khulna.

10                  The Tribunal challenged the applicant about the claims in these letters, particularly to another letter from the Ward Commissioner of Khulna who said that Mr Mukto was personally known to him and so far as he knew he was not involved in any civil disobedience or any anti-state activity.  Mr Mukto replied to the Tribunal that the Ward Commissioner had not mentioned the charges against him because he had known that they were false and sympathised with him.

11                  During the hearing, it was put to Mr Mukto, by the Tribunal, that independent information showed that the courts in Bangladesh were independent and efficient and had thrown out thousands of false charges.  In addition, he apparently had the support of the top government official in the area and of top local BNP leaders and, on his claims, his father was a renowned businessman valued by the Chamber of Commerce.  The Tribunal put to him that he would have been able to draw on a formidable number of sponsors to stand surety for him and defend him against harm and that given all this, it could not be said without more that he could not find protection in Bangladesh.  Mr Mukto replied that the people who wrote letters in his support could not help him but when his friend Hussein had been killed some months after leaving Khulna he had lost hope for his own safety.

12                  Various other matters were put to the Tribunal and submissions made by Mr Mukto’s advisers, Macpherson and Kelley, were taken into consideration in preparing the decision.  In setting out its findings and reasons, the Tribunal accepted that there may be difficulties in communication which can affect an applicant’s ability to provide a coherent, consistent and plausible account.  It accepted that applicants for refugee status face difficulties of proof.  It also accepted that if it were to make adverse findings about an applicant’s credibility, then it might need to take into account the possibility that those findings might be wrong when deciding whether the applicant had a well-founded fear of persecution.

13                  However, it asserted, and in my opinion correctly, that a decision-maker is not required to accept uncritically any and all the allegations made by an applicant, nor does it mean that the Tribunal has to have some rebutting evidence available before it can find that a particular factual assertion is not made out.  It referred to the case of Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348.

14                  The Tribunal concluded, after considering the evidence, that Mr Mukto had fabricated significant portions of it in order to bolster his application for a protection visa.  It accepted that he came from Bangladesh, although he had no passport.  It could not rely on the various documents he had provided attesting to connections with Bangladesh as evidence of his citizenship although the relevance of that reservation is not entirely clear.  It accepted his evidence relating to his father’s business and BNP credentials and that his father had become a BNP official in order to protect himself against attempts by criminals allied with the Awami League to extort money.

15                  The Tribunal accepted also that Mr Mukto had been a BNP supporter.  However, it set out some nine matters upon the basis of which it did not believe a range of the claims made by Mr Mukto and they are, in summary as follows:

1.         Given the ignorance of the subjects he claimed to have been studying for two years, the Tribunal was not satisfied that Mr Mukto ever went to university.  It did not accept that his ignorance was a result of having been a bad student.  He appeared to be at sea with even the fundamentals of his claimed subjects.  Not being satisfied he had been at university, it was not satisfied that he had become the top BNP leader at university.  In his written submissions on this point, Mr Mukto said:

“The RRT officer is not satisfied that I was a student of a uni college and also the top BNSP leader of that uni college. 

I want to say that she is wrong because in 1989 I passed SSC (science section) in second divition from Education Board Jessore.  And in 1991 I passed HSC (science section) in second divition from Daulatpur BL Govt uni college (Education Board Jessore), but I had not enough mark to get admission in scienc to do high study.  Thats why I changed my subject and took admission in arts section.  My subject was Bangla, English, Political Science, Logic and Islamic Study. But I could not pass the BA exam because of all that new subject.  But RRT hearing time the officer asked me about logic but I could not answer because I finished my study long time, and I had a lot of political problem in my country and come here also I lock in this detention center almost 7 months.  That’s why I forget everything. But my uni college certificate is origint. You can chack it. And also I was a top leader of that uni college.  The presidents (BNSP of that uni college) letter can prove that. Or if you can call their you know everything about it.” (sic)

By this response, Mr Mukto simply asserted that the Tribunal had made an incorrect inference or finding about the facts concerning his university attendance and his holding office as a BNP leader at the university.

2.         The Tribunal found that Mr Mukto had presented a fraudulent document namely a letter of reference from the now deceased BNP student leader in his home town, Wahiduzzaman Chonchol, or Chanchal.  The letter was purportedly signed on 15 August 1999 however, according to press clippings submitted by Mr Mukto and according to the Bangladeshi newspaper report obtained through the Internet by the Tribunal, Chanchal had been dead ten months before the date of the letter.  On the basis that Mr Mukto was prepared to fabricate one letter of reference, the Tribunal believed there was at least an equal chance that other letters he had submitted were similarly fabricated.

            There was reference to Country information and the proposition that “fraudulent documents are very common in Bangladeshi asylum claims”. Reliance was also placed on a statement from the US Bureau of Democracy, Human Rights and Labor published in February 1998 and a cable from the Australian High Commission in Dhaka.  The fraudulent nature of the Chanchal letter, which stated that Mr Mukto was a BNP leader at university, in its own way also cast doubt also upon his claim to have been at university.

In response to this finding, Mr Mukto said that the Tribunal had made a mistake.  It had not properly examined all his documents.  He referred the Court to his college BNP President's letter which was signed on 15 August 1999.  He referred to the letterhead which was “Bangladesh Nationalist Student Party, Govt BL Uni College Section, Khulna” and the signatory of the letter who was “Waheduzzaman, President, BNSP Govt BL Uni College, Daulatpur, Khulna”.  Then he returned to a newspaper cutting headed “Chatrodol Leader Chanchal killed in Khulna" reporting on “the Vice President Chatrodol Central Committee, formerly President of Khulna District BNSP who was killed on Oct 20 1998”.  Mr Mukto submitted that this was one name but two people. One is the President of the Daulatpur BL Government Uni College BNSP who is still alive. The other was the Vice-President of the Central Committee, formerly President of the Khulna District BNSP who died on 20 October.  He did not understand how the Tribunal could justify its findings about the letter of reference.

16                  In the documents that were before the Tribunal there was, I note, a document which appears at p 102 of the affidavit of Mr Corbould, in which there is what appears to be a translation of a newspaper report to the effect that the Vice-President of the Central Committee of Student Group of BNP, President of Khulna District, Mr Waheduzzaman Chanchal was murdered at 10pm on 20 October 1998 in a house.  Below that print translation there is a handwritten or blocks-written note which appears to be in the same sort of writing as in the written submissions put before this Court.  It is from Mr Mukto to Mr Peter Wearne who was his representative before the Tribunal and he says:

“Chancal, (sic) the student group leader of BNP has been murdered by the sword in Khulna…”

He refers to the Daily Dinkal of  21 October 1998 and then goes on:

“The Vice President of central committee of BNSP and the President of Khulna BNSP Mr Weheduzzamun Chanchel (30)was murdered at 10pm of

20–10-98 in a house by sword in Khulna." (sic)

Then it goes on:

“The relationship to my claim is.

He was my best friend.  We studied the BL Gov Uni College at the same time.  We did politics in college togather.  His house to my house, distence 7 km.  His only child “Miasha (3)” she loved me very much.  I was also his family friend.  Many time he help me to save my life. But - he cannot save his life.” (sic)

17                  Now, Mr Mukto’s submission rests on the proposition that the Chanchal who is the student  leader was different from the Chanchal who was killed.  The apparent instructions to his lawyer, at p 102 of the papers, negative that proposition. In any event this is a submission which is made about a finding of fact by the Tribunal and that is not a matter in respect of which review is available in this Court.  I was concerned initially, looking at the Tribunal’s findings on this point, that the reasons for its decision may not have been adequate but I am satisfied that by reference to the primary issue of the discrepancy in dates it was justified in making the finding about the letter that it did.

3.         The third item involves a contention that Mr Mukto had tried to claim a kind of bond of death between himself and other local Khulna based BNP leaders.  Given that no mention of these people, apart from Chanchal, could be found in newspaper reports and given that Bangladeshi asylum applicants had in the past submitted fabricated press clippings, the Tribunal was not persuaded that the clippings were genuine. Even if they were, the Tribunal was not satisfied that they would substantiate a claim that the deceased had all died at the hands of the Awami League and that because Mr Mukto had claimed links with some of them and shared their BNP beliefs he also faced certain death by the Awami League.  Chanchal did not die at Awami League hands but was murdered by his own party men.  Hussein apparently died after he had moved away from Khulna.  The argument of common characteristics between these deaths, apart from BNP membership which is shared by thousands of others, was strained and the Tribunal found that the claim on its own did not persuade it that the applicant had a well-founded fear of persecution.

18                  Mr Mukto in his submissions said in this respect the Tribunal was wrong.  He said all the BNP leaders were killed by the Awami League.  He knew the real story because they were in politics together and they stayed in the same town.  Chanchal, his best friend, was killed in October 1998.  The police had arrested five people from BNP.  Police and the Awami League, he said, wanted to show the people that BNP people were killed.  The real story is that the five men of BNP are free now.  The Court established the innocence of all of them.  Now everybody knows, according to Mr Mukto, that the Awami League is the real killer.  Hussein, who was killed, lived in the same place as Mr Mukto but he had left his home town because of Awami League enemies.  Mr Mukto also referred to his cousin who was killed by Awami League enemies on his own college campus and one Azad Babul, also killed by Awami League enemies.  He referred then to the paper cuttings and the fact that he was also attacked by the Awami League.  Again, it can be seen from this that the response to the Tribunal’s findings is a response on an issue of fact.

4.         Item 4 of the nine points made in the Tribunal’s findings involved a finding that the Tribunal was not satisfied that Mr Mukto had arrest warrants out for him on many false charges.  If he had been wanted by the police and had, as he himself had claimed, attacked Awami League members and damaged their property it was said to be implausible that the top government official of his Ward would have denied that he was innocent of civil disobedience or any anti-state activity.  I think that is a slip.  The Tribunal meant to say that the Ward official would have asserted that he was innocent of civil disobedience or any anti-state activity. 

19                  Again, there was a response to this complaint of the failure of the Tribunal to believe Mr Mukto’s contentions.  He had given the Tribunal the letter from the Ward Commissioner to prove that he was Bangladeshi.

5.         In item 5, the Tribunal said it had overlooked discrepancies in dates given by Mr Mukto as to when his father and himself had allegedly been attacked, however, it found a complete lack of credibility in his claims to have been evading arrest by police and capture by Awami League enemies from 1997 to 1999 while during the same time taking part in raids on the Awami League offices and complaining to police about the Awami League. 

20                  In response Mr Mukto said that the Tribunal had blamed him for the attacks made upon him and his father by the Awami League.  The reason the police did not catch him, he said, was because the Awami League enemies had attacked and almost killed him.  Everybody thought he was finished.  A doctor had seen his condition and made a complaint against them.  A few central leaders had come to protect him and the police knew all the charges were false and that is why they did not catch him.

6.         Item 6 of the Tribunal’s points found a lack of credibility in Mr Mukto’s claims to have been publicity and propaganda secretary for the BNP while being in hiding.  His claimed political duties would necessarily have involved much political exposure and constant meetings with other members, not a role he could have performed were he in hiding.  That fact threw into doubt his claim to have been publicity secretary and if he were an ordinary member, in the Tribunal’s view, it was implausible that the Awami League would target him with threats and false charges as he claimed. 

21                  Again, Mr Mukto complains that the Tribunal did not believe that he was the publicity and propaganda secretary.  He wanted to say, he said, that BNP’s central office sent him a letter, telephone number and address set out, and that information could be taken from that office or a call could be made to any BNP ex-minister and inquiries made about him.  He said also more information was available from the Khulna BNP office and other sources.

7.         In item 7, Mr Mukto’s equivocation as to when and how long he was in hiding and in what manner suggested to the Tribunal that he was seeking to plug holes in his claims and led to further doubt about the credibility of his evidence.  There was no specific response to that. 

8.         At item 8 the Tribunal found that his claims of being bashed almost to death and being hunted to death by Awami League activists because of his knowledge of their alleged gun running, drug smuggling activities and so on, lacked credibility given his own admission that others in the party possessed the same knowledge.

The Tribunal found it implausible that the Awami League would imagine that by killing a minor official with knowledge of these crimes they could silence the opposition on these matters.  It was implausible that the Awami League would try to kill him over his knowledge of their alleged extortion activities and not kill his father from whom he had actually gained the knowledge, or, having regard to his lack of mention of this in his evidence, the other businessmen who joined the BNP to protect themselves against extortion. 

22                  As to these findings, Mr Mukto complained that he had not been believed, that Awami League enemies had been bashed almost to death and been hunted to death.  He said, “If you see my body you understand they attacked me or not and you also see my medical certificate.”  He said he was not only attacked by them because of his knowledge of their alleged gun running and drug smuggling but they attacked and killed some of his friends because of that.  They killed his friend, Abul Kalam Azad, who was the ex-joint secretary of his area.  They also killed his cousin, Islam, who was ex-secretary of the BL uni college.  He said that they attacked his brother.  His brother had left the country.  They attacked his house, broke into his house and bit his father, they broke his hand and now one side of his body is paralysed.

9.         Item 9 of the Tribunal’s reasons said that his claim to have been known anywhere in Dhaka, in the context of discussing whether he could escape harm by moving to another area of Bangladesh, was fanciful.  There was nothing in his evidence that demonstrated that he was a famous person and the Tribunal considered that if necessary he would be able to find safety in Dhaka’s 33,600,000 plus population based on 1991 figures.

23                   As to that, Mr Mukto said that he was hiding in many places a few months at a time. He posed the rhetorical question, how long can a man keep on hiding?  He was always afraid of the police catching him and of all his enemies.  He could not sleep and could not do anything.  Hiding, he said, is more painful than death.  That was why he ran away from his country.  He said he believed that Khulna was under the control of the BNP because the mayor of Khulna is BNP’s man and he agreed with that finding by the Tribunal but said Khulna is not controlled by the BNP and referred to various Awami League persons who came from Khulna.

24                  Following its recital of these nine points, the Tribunal concluded it had significant doubts about the credibility of a range of claims made by Mr Mukto.  It was not satisfied that the picture he had drawn of himself as a party official pursued vengefully by the Awami League was genuine, or that he had even served in the party at the level he claimed.  Given the lack of credibility in his claims to have been evading police arrest warrants for up to two years, it was not satisfied that he was, as alleged, facing many false charges brought against him by the Awami League.  It was not satisfied that he was bashed almost to death because of his claimed profile and activities and had he been so bashed the Tribunal considered this would have been possibly in revenge for an attack on Awami League members.  On that basis it was not satisfied that Mr Mukto faces persecution in Bangladesh on account of his BNP profile and claimed political activities. 

25                  The Tribunal went on to give general consideration to whether BNP members were persecuted for their political opinions.  It referred to country information, the robust role of the BNP in opposition and the mutually aggressive behaviour of it and the Awami League and concluded:

“The above independent evidence would not indicate that the BNP would passively accept violence and threats against its own cadre….”

26                  The Tribunal acknowledged that the Awami League government might, because of its leverage, be favoured by various authorities in disputes between parties but it was by no means able to cow independent authority into giving it preferential treatment and there were references in support of that conclusion.  Furthermore, it said, independent evidence showed that although both the BNP and the Awami League used legislative powers to harass and detain opponents, the courts, which are independent, could be relied upon to provide protection for those falsely charged.

27                  In the end, the Tribunal concluded that Mr Mukto did not have a well-founded fear of persecution in Bangladesh on a Convention ground.  It did not accept, having regard to its findings about his credibility, that he had to leave Bangladesh to avoid harm for his claimed political activities.  It was not satisfied that he had been forced to use a false passport to foil political enemies.  It was of the opinion that any use of a false passport would have been for the purpose of effecting entry to countries en route to Australia rather than to avoid harm for a convention reason in Bangladesh.  If Mr Mukto were to be punished upon re-entry to Bangladesh for having left illegally, the Tribunal considered that he would face penalties common to all Bangladeshis who left illegally under laws of general application.  That would not bring him within the ambit of the Convention.  In the event, having considered the evidence as a whole, the Tribunal was not satisfied that Mr Mukto was a person to whom Australia had protection obligations.

28                  Mr Mukto, on 28 October, signed an application for an order for review under s 476 of the Migration Act 1958.  The grounds of the application were stated as follows:

“(a)     The decision involved an error of law, being an error involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal or both.

(b)       The decision involved an error of law in that the Tribunal made findings of fact upon which its decision was based that were not rationally supported by probative evidence and it failed to rationally consider the probative evidence that was before it.”

He sought an order setting aside the decision of the Minister, but presumably that is meant to be an order setting aside the decision of the Tribunal and an order that the Tribunal pay the costs of these proceedings.

29                  This application is a common form of application, signed by a number of people who are already in the review process from the Port Hedland Detention Centre.  It is obvious that it has been prepared by some third party no doubt with some degree of legal knowledge, but it gives no elaboration of the alleged error of law attributed to the Tribunal.  It is indeed in common form and it is quite apparent that although he signed the application, Mr Mukto did not have benefit of any advice about the proper basis for bringing an application for review of a Tribunal decision.  Although he was represented before the Tribunal, it would seem he was not represented before this Court.

30                  The decision of which he seeks review is a judicially reviewable decision under s 475 of the Migration Act and the grounds for review of such decisions are limited to the following set out in s 476(1):

“(a)     that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

(b)       that the person who purported to make the decision did not have  jurisdiction to make the decision;

(c)        that the decision was not authorised by this Act or the regulations;

(d)       that the decision was an improper exercise of the power conferred by this Act or the regulations;

(e)        that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

(f)        that the decision was induced or affected by fraud or by actual bias;

(g)       that there was no evidence or other material to justify the making of the decision”.

There are elaborations of those grounds.  The elaborations and limiting provisions are to be found in subss (2), (3) and (4) of s 476.

31                  None of the material put before the Court by Mr Mukto discloses a reviewable ground of appeal either on the grounds set out in his application or otherwise.  In essence, what Mr Mukto seeks to do is to challenge the Tribunal’s findings of fact which were adverse to his credibility.  That kind of challenge is not available within the framework of the grounds of review to which this Court is limited under s 476. The Court cannot sit in the seat of the Tribunal and simply substitute for the Tribunal’s conclusions the conclusions which this Court thinks would have been correct.  There is no merit in the application.

32                  The application comes before this Court by an applicant who is unrepresented.  There is a significant number of other such applicants who are unrepresented.  Present conditions attaching to legal aid funding in migration cases, I understand, limit the availability of such funding for representation to test cases.  It appears that there is no facility by which the Legal Aid Commission is able to provide any first instance screening advice to applicants in his situation.  It is probable that the Court will be confronted with an increasing and significant number of applications in which parties will be unrepresented, signing common form applications. The Court will have to make choices in some cases as to whether to refer the matters for possible pro bono representation.  It is unlikely to be able to do so in all cases and, if it were to do so, it is unlikely that such representation will be available in all cases under present arrangements.

33                  As I remarked in the course of a directions hearing in another matter, whatever economies are achieved by the unavailability of funds for first instance legal advice in relation to this sort of application they are likely to be false economies having regard to the burden that dealing with such applications will place upon the Court and indeed upon the resources of the respondent in having to respond to them.  No doubt there is no easy answer to this situation but it is to be hoped that there may be some ways of addressing the ongoing difficulty of initial advice and subsequent representation.

34                  Of course, if it becomes clear that an unmeritorious application has been lodged simply to gain time, then it might well be characterised as an abuse of process and dealt with summarily on that basis. The Court was not invited to and did not draw that conclusion in respect of this application.  It is, however, without merit and it will be dismissed.

Associate:

Dated: