Hakimi and Department of Immigration, Multicultural and Indigenous Affairs

[2006] AATA 89

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 89

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/143

GENERAL ADMINISTRATIVE DIVISION		)
Re		MOHAMMAD SHAH HAKIMI

Applicant

And DEPARTMENT OF IMMIGRATION, MULTICULTURAL AND INDIGEOUNOUS AFFAIRS

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date3 February 2006

PlaceSydney

Decision The Tribunal recommends, pursuant to s66(1) of the Freedom of Information Act 1982, that the Commonwealth pay Mr Hakimi’s costs fixed at $3,918.20.

...........................................

Ms N Bell,
  Senior Member

FREEDOM OF INFORMATION – Freedom of Information Act 1982 – section 66 – Costs – Tribunal May Recommend Commonwealth Pay Costs of Applicant if Successful or Substantially Successful –No Benefit to Public Interest – Application Would Suffer Financial Hardship – Applicant Would Not Receive Commercial Benefit – Tribunal’s Decision Not Reasonable – Section 66 Discretion Ought to be Exercised in Applicant’s Favour

Freedom of Information Act 1982; ss66 and 33(1)

Administrative Appeals Tribunal Act 1975; s42C

REASONS FOR DECISION

3 February 2006 Ms N Bell, Senior Member

1.      Mr Mohammad Shah Hakimi was born in Afghanistan and arrived in Australia in 1999.  In connection with a visa application, Mr Hakimi made a request under the Freedom of Information Act 1982 (the Act) for the release of “all documents relating to me in whatever format”.  Some four months later the Respondent made a decision in respect of that request which withheld a large number of documents (the primary decision).  On internal review, the Respondent decided to withhold the majority of documents that had been withheld under the primary decision.  Mr Hakimi made an application to the Tribunal for review of that decision on 31 January 2005.  After four preliminary conferences, the parties agreed to the release of the majority of documents and on 23 September 2005, the Tribunal made a decision in accordance with that agreement.

2.      Mr Hakimi has requested the Tribunal to make a recommendation to the Attorney-General’s Department that the costs of Mr Hakimi in relation to the proceedings be paid by the Commonwealth.  Mr Hakimi’s request is made pursuant to s66 of the Act which provides:

“Tribunal may make recommendation that costs be available in certain circumstances

(1)       Where:

(a)a person makes application to the Tribunal under section 55 for review of a decision constituting the action to which the complaint relates; and

(b)the person is successful, or substantially successful, in his or her application for review;

the Tribunal may, in its discretion, recommend to the Attorney-General that the costs of the applicant in relation to the proceedings be paid by the Commonwealth.

(2)       Without limiting the generality of the matters to which the Tribunal may have regard in deciding whether to make a recommendation under subsection (1), the Tribunal shall have regard to:

(a)the question whether payment of the costs or any part of the costs would cause financial hardship to the applicant;

(b)the question whether the decision of the Tribunal on review will be of benefit to the general public;

(c)the question whether the decision of the Tribunal on review will be of commercial benefit to the person making application to the Tribunal; and

(d)the reasonableness of the decision reviewed by the Tribunal.

(3)       The Attorney-General may, pursuant to a recommendation of the Tribunal under subsection (1), authorize the payment of costs to an applicant.”

3.      It is not in dispute, and I agree, that Mr Hakimi has been substantially successful in his application for review of the decision of the Respondent under the Act.  It is also not in dispute, and I agree, that access to the documents is of no commercial benefit to Mr Hakimi.

issues

4.      Given the terms of s66(2) of the Act and the circumstances of this request, the issues for me to consider are:

·Whether the payment of costs would cause financial hardship to Mr Hakimi;

·Whether the decision will be of benefit to the general public; and

·Whether the reasonableness of the decision reviewed by the Tribunal.

·Whether there are any other matters to which I should have regard in deciding whether to make a recommendation.

financial hardship

5.      An affidavit sworn by Mr Hakimi on 5 December 2005 shows that he has assets and cash of approximately $6,200, owns no real property, has no shares or other investments and has liabilities of approximately $6,000.  Mr Hakimi’s income is approximately $1,500 per fortnight and his living expenses are approximately $1,240 per fortnight.  He supports his wife, son, younger brother and mother.  I accept his evidence of his current financial circumstances.  Mr Hakimi’s solicitors’ professional fees and disbursements are in the sum of $3,918.20.

6.      I am satisfied, taking into account the particular financial circumstances of Mr Hakimi and the amount of costs outstanding, that payment of some or all of his legal costs would cause Mr Hakimi financial hardship.

benefit to the general public

7.      The documents concern Mr Hakimi and, on the face of them, could be of little interest to anyone other than Mr Hakimi.  Mr Varess for Mr Hakimi, submitted that the documents inform on similar migration processes for the solicitors’ firm which has “hundreds of clients who are also from Afghanistan”.  No evidence of this was presented and, in any event, the clients of one firm of solicitors do not equate to the general public.  Mr Varess also submitted that the release of the documents gave effect to the objects of the Act by extending the right of the Australian community to access to the information in possession of the government and further submitted that a recommendation that Mr Hakimi’s costs be paid would “put the department on notice that it will be penalised for forcing applicants to incur undue expense in obtaining documents under the Act”.  On the contrary, any appropriate normative effect on the behaviour of the department or the government in general should arise through the process of administrative review and not be attempted by the Tribunal taking punitive action under s66 of the Act.

8.      I consider that the decision of the Tribunal, while of benefit to Mr Hakimi, was not of any particular benefit to the general public.

reasonableness of the decision

9. The Tribunal’s decision in this application was made pursuant to s42C of the Administrative Appeals Tribunal Act 1975 (the AAT Act), following an agreement reached by the parties. Given that no review had been undertaken by the Tribunal, it was agreed by the parties that two folios in contention are representative of the large number of documents that were the subject of the application. One of those documents, folio 113, was a translation into English of an extract from Mr Hakimi’s Afghan driver’s license. The decision under review maintained that the folio was exempt from disclosure pursuant to s33(1) of the Act which exempts from disclosure a document that would divulge any information or matter communicated in confidence by or on behalf of a foreign government to an authority of the Commonwealth. At the hearing of Mr Hakimi’s request for a recommendation as to costs, Mr Chand, for the Respondent, conceded the claimed exemption to be an error. It is clear, in these circumstances, that the decision as to folio 113 was not reasonable.

10.     The second folio identified by the parties was folio 76, a file note stating the location of a file concerning Mr Hakimi.  Mr Chand submitted that the file note, which concerned Mr Hakimi’s file and noted its whereabouts, was reasonably regarded by the delegate as irrelevant to Mr Hakimi’s request.  The terms of Mr Hakimi’s FOI request were “All documents relating to me in whatever format”.

11.     The folio in question may have only been a file note concerning the location of a file but it was about the location of a file relating only to Mr Hakimi.  This falls squarely within the terms of Mr Hakimi’s FOI request.  The decision to not release the folio on the basis of irrelevance was not reasonable.

12.     In summary, then, I have found that the Tribunal’s decision by which Mr Hakimi was substantially successful in his application for review, will not be of benefit to the general public.  However, I have found that the payment of costs would cause Mr Hakimi financial hardship, that there will be no commercial benefit to Mr Hakimi from the Tribunal’s decision and the decision reviewed by the Tribunal, albeit by agreement between the parties, was not reasonable.  On balance, these factors operate in favour of the exercise of the discretion under s66 of the Act.  Whilst the tribunal is not limited, in considering whether to exercise its discretion in s66 of the Act, to those matters listed in sections 2(a) - (d), I do not consider that any other relevant matters arose.

13.     Finally, there was some argument at the hearing of Mr Hakimi’s request for a recommendation, as to whether Mr Hakimi’s costs of preparing an affidavit regarding his financial position and forwarding that affidavit to the Tribunal and to the solicitors for the Respondent should be included in any amount recommended by the Tribunal to be paid.  Mr Chand submitted that the question of evidence of Mr Hakimi’s financial circumstances had been raised by Mr Chand prior to the hearing of Mr Hakimi’s request.  However, Mr Varess noted that Mr Hakimi had travelled overseas shortly before Mr Chand raised the issue.  The affidavit by Mr Hakimi setting out his financial circumstances was provided at my request.  In the circumstances I consider it is appropriate for the costs of that affidavit to be included in the amount that I recommend be paid.

decision

14. The Tribunal recommends, pursuant to s66(1) of the Act, that the Commonwealth pay Mr Hakimi’s costs fixed at $3,918.20.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member.

Signed:         ..................[Linda Blue]...................................
  Associate

Date of Hearing  16 November 2005
Date of Decision  3 February 2006
Solicitor for the Applicant          Craddock Murray Neumann Lawyers
Solicitor for the Respondent     Clayton Utz Lawyers