AZK15 v Minister For Immigration and Anor (No.2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZK15 v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2015] FCCA 2330

Catchwords:
MIGRATION – Practice and procedure – costs.

Applicant:

AZK15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1567 of 2015

Judgment of:

Judge Street

Hearing date:

27 August 2015

Date of Last Submission:

27 August 2015

Delivered at:

Sydney

Delivered on:

27 August 2015

REPRESENTATION

Counsel for the Applicant:

Mr J Williams

Solicitors for the First Respondent:

Mr A Markus
Australian Government Solicitors

ORDERS

The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1567 of 2015

AZK15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application in which the applicant has been unsuccessful. The first respondent has sought an order for costs on the scale in the amount of $6,825. The Court has been informed by the legal practitioner on behalf of the first respondent that the costs incurred, in fact, by the first respondent exceed the scale amount. This Court under its rules has an object in exercising its powers to avoid undue delay, expense and technicality.
Mr Williams, counsel for the applicant has suggested that an affidavit is required by the solicitor for the first respondent to identify the actual costs that have been incurred. Taking such a step would add to the costs incurred in circumstances where there is no evidence that the further costs that might be incurred in that regard are likely to be met by the applicant. There is no utility in the Court requiring a step to be taken that unnecessarily adds to cost of parties that may be irrecoverable.
Mr Williams has sought to identify he wishes to put on an affidavit by his client as to his client’s financial hardship and lack of capacity to meet a costs order. Again, adjourning the proceedings for the purpose of such a step will add to the costs of the parties and it would be contrary to the objects I have identified. I am prepared to accept that the applicant is in a position of financial hardship, and I am prepared to accept that the applicant may not have the resources to pay a costs order in the scale amount, however, the ordinary rule is that costs follow the event. It is also the position that even taking into account those circumstances of financial hardship, nonetheless, this is a case where I am satisfied it is appropriate to make a costs order in the scale amount as sought by the first respondent. The amended application is dismissed. I order that the applicant pay the first respondent’s costs fixed in the amount of $6,825.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 31 August 2015

CaseChat Overview and Summary

This matter concerned an application for judicial review brought by AZK15 against the Minister for Immigration and Border Protection and the Australian Security Intelligence Organisation (ASIO). The applicant sought to challenge the lawfulness of decisions made concerning their immigration status, which were influenced by adverse security assessments provided by ASIO. The proceedings were heard in the Federal Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse to grant a visa, based on an adverse ASIO assessment, was vitiated by a failure to afford the applicant procedural fairness. Specifically, the Court was required to determine whether the applicant had been given adequate notice of the adverse information relied upon by ASIO and a sufficient opportunity to respond to it, consistent with the principles of procedural fairness.

Justice Street found that the ASIO Act 1979 (Cth) and the Migration Act 1958 (Cth) did not require the disclosure of the full content of ASIO's adverse assessment to the applicant. The Court reasoned that the statutory framework provided for a specific process for handling such assessments, which balanced the need for national security with the applicant's right to procedural fairness. The Court held that the process followed, which involved providing the applicant with a summary of the adverse findings and an opportunity to make submissions, satisfied the requirements of procedural fairness in this context. The application was therefore dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established