Fard v Secretary, Department of Immigration and Border Protection

The appellant, Ms Fard, sought to appeal a decision of the Administrative Appeals Tribunal (AAT) that dismissed her application for the amendment of her personal information held by the Department of Immigration and Border Protection. The appellant challenged the AAT’s decision on the basis that it was unjust and unfair. She filed an interlocutory application seeking leave to adduce fresh evidence in the form of documents and subpoenas for witnesses to attend the appeal hearing. The appellant also sought security for costs.

The court was required to decide whether the appellant could adduce fresh evidence in the form of documents and witnesses in her appeal and whether she should provide security for the respondent's costs. The court considered the grounds of appeal, the availability of the evidence before the AAT, and the potential relevance and weight of the evidence sought to be adduced.

The court found that the appellant's sole ground of appeal was not particularised and that the evidence was available prior to the AAT hearing. The court held that the Federal Court could not undertake a merits review of the AAT decision. The court also found that the appellant had not provided an explanation why the evidence was not in affidavit form, why it was appropriate for the witnesses to attend the appeal, or why fresh evidence was required. The court held that the potential relevance and weight of the evidence was insufficient to warrant the grant of leave to adduce fresh evidence. The court also found that the appellant was of limited financial means, had outstanding costs debts in related litigation, and that there were other options available to obtain the outcome sought in the Tribunal. The court held that the prospects of success of the appeal were not sufficient to warrant the grant of security for costs. However, the court found that the amount of security sought was reasonable and that the appeal would be stayed if the security was not paid into Court. The court refused to order the dismissal of the appeal in the event of non-payment of security.

The court refused the appellant's application for leave to adduce fresh evidence and for subpoenas. The court ordered the appellant to provide security for costs in the amount of $15,000. If the appellant did not provide the security by 4 pm on 20 October 2016, the hearing of the appeal would be vacated, certain orders would be vacated, and the appeal would be stayed until further order.