Hounslow, B. v Department of Immigration & Ethnic Affairs

CATCHWORDS

Adminlstrative

law

- appeal

from

an order

made

the

Administrative Appeals Tribunal in relation to

the

costs of

applicatlon made to

it under the Freedom of Information Act

1982 -

whether

the

Tribunal

failed

take

into

account

relevant

conslderations

and

whether

it took

into

account

irrelevant

considerations.

Freedom of Information Act 1982, s.66.

Betty Hounslow v Department of Tmmlqration and Ethnic Affairs

G. 175 of 1985

Sweeney, J.

20 December, 1985

Melbourne

IN THE FEDERAL COURT OF AUSTRALIA

)

NEH SOTJTH WALES DIS’JRICT REGISTRY

)	NO, G175 of 1’385

)

GENERAL DIVISION

)

This is an appeal from the Administrative Appeals Tribunal.

Between: BETTY HOUNSLOW

Applicant

and

DEPARTMENT OF IMMIGRATION

AND ETHNIC AFFAIRS

Respondent

THE COURT: Sweeney

:	20 December, l985

PLACE : Melbourne

MINUTES OF ORDER

THE COURT ORDERS

THAT:

so much of

the decision of

the Tribunal as relates to

the question

of costs be set aslde;

the matter be remitted to the Tribunal to

hear

and

determine the question of costs in accordance wlth the

Court’s reasons for ~udgment;

2 .

3. the Department pay the applicant's costs of the appeal to the Court.

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

IN THE FEDERAL COURT OF AUSTRALIA	)
)

NEW	SOUTH	WALES	DISTRICT	REGISTRY	)	NO. G175 of 1985
)

GENERAL DIVISION

This is an appeal from the Adminlstratlve Appeals Tribunal.

Applicant

HOUNSLOW

BETTY

Between:

and

DEPARTMENT OF IMMIGRATION

AND ETHNIC AFFAIRS

Respondent

THE COURT: Sweeney

DATE	: 20 December, 1985

PLACE : Melbourne

Reasons for Judqment

Sweeney J.

The appllcant, Betty Hounslow, on 26

April 1984 applled to

the

Department

Immigration

a d

Ethnic Affairs ("the

Department") for access under the Freedom

f Information Act 1982

("the F.O.I.

Act")

for access to

3 documents, described as the

Grant of Resident Status Handbook ("GORSH"),

the Report on Renew

of Determlnation

of Refugee Status

("DORS") and the Report on

Review of

Spouse Policy

( "the

Spouse Paper"). She was glven

access to GORSH	and it ceased to be the subject of any further
clam by her.

Access to the Spouse Paper was initlally refused on 10 July

1984 and this refusal was confirmed on

10 September 1984 after an

internal renew of the decision had been made by the Department.

In her appllcation to the Administrative Appeals Trlbunal

("the Tribunal") dated and lodged

10 October 1984, the appllcant

included a request to review the decislon

In relation to the

Spouse Paper, and

the matter was set down for hearlng. Shortly

before

the

hearing

date,

agreement

was

reached

between

the

applicant and the Department that the Spouse Paper would be made

available to the appllcant in full.

In her appllcation, the appllcant also sought access

to DORS

whlch had been

initially

refused on 13 September 1984. On

September internal

renew

of this refusal was sought by the

applicant who had not been notified of any decision on

renew at

the time of	making her applicatlon, in which it was sald on her
behalf-

"Under those circumstances we take the Department's

failure to notify our client of its declslon regarding

her request for internal review as a refusal of that

request and seek

a renew of that decision."

September 1984 the applicant was advised by the

Department that, following upon the Internal review, its refusal was mamtained.

3 .

Before the hearing date, the Department advised the applicant

it would deny her access to 10 of the

206 pages of DORS. On the

hearing date, counsel for the Department announced that, falling agreement between the parties, it would have maintained that 6

additional

pages

should

exempt

from

disclosure,

but

the

applicant accepted this further exemption.

After the hearlng before the Tribunal was completed the

Department requested that it be re-opened to enable a claim to be request for a re-openlng was wlthdrawn.

made for the exemptlon of certaln phrases in Follos 193 and 184 of

The

Tribunal

held

that

had

jurisdiction

make

recommendation in terms of 5.66

of the F.O.I. Act in relation to

the Spouse Paper and

DORS, and this finding is not now challenged.

Section 66 of the F.O.I. Act reads as follows:-

"66. (1) Where -

(a)

a person makes application to the Trlbunal under

sectlon 55 for

review of a decislon constituting

the action to which the complaint relates: and

(b) the

p rson

successful,

substantially

successful, In his application

for review,

the Tribunal may, in its discretion, recommend to the

Attorney-General that the costs

the applicant in

relation to the proceedings be paid by the Commonwealth.

( 2 ) Without limiting the generality

the matters to

which the Tribunal may have regard in deciding whether

to make a recommendation under subsection (l),.the

Tribunal shall have regard to

(a)

the question whether payment of the costs or any

part of the costs would cause financial hardship

the applicant;

(b)

the question whether the declsion of the Tribunal on review will be of benefit to the general public:

(c)

the question whether the decision of the Trlbunal

on review

will

be of commercial benefit to the

person makmg application to the Trlbunal; and

(d) the reasonableness of the declslon renewed by the

Tribunal.

”

The Tribunal made a decision, dated

20 June 1984, in the

following terms:-

“By consent,

the decislons under review are set aslde

except in so far as they relate to pages

16, 17, 77,

170, 172, 173, 175, 188, 191, 193, 136, 137,

138, 176,

177, 178 and designated portions of 193 and 194 of the

document entitled ’Review of Australlan Procedures for

Determmg Refugee Status’.“

is now common

ground

that

the

appllcant

had

made

applicatlon to the Tribunal, and that she had been successful in

her application for

renew in relation to the Spouse Paper and

substantially successful

In relation to DORS.

The Tribunal was satisfled that the applicant had satisfied

the

statutory

conditions

necessary

enable

it, in

its

discretion, to recommend to the Attorney-General that the costs

the applicant in relation to the proceedings be	pad	by the
Commonwealth.

The Tribunal came to the conclusion that it should not

exerclse that discretion in favour of the appllcant and

it is from

that refusal that the present appeal has been brought. Counsel

for the applicant and the Department on the appeal joined

lnformmg the Court that when the question

costs was argued

before the Tribunal,

it was the submisslon

of each of their

clients that the application made to

the Tribunal was for review

of the decislons of the Department by which

refused the

appllcant access to the Spouse Paper and DORS.

However, in its reasons for Its decision, the Trlbunal made

It clear that when

It came to consider, withln the meaning of

s.66(2)(d) "the reasonableness

of the decision reviewed by the

Trlbunal" It had regard, not to the declsion to deny access, but

the eventual decision to grant

it, in

whole, as to the Spouse

Paper, and, in the main, as to DORS. Counsel

for the Department

properly conceded that the Tribunal erred in

so doing.

The Tribunal also held that

it should not take into account

what the applicant descrlbed as the many delays by the Department

"in finally arriving at the positlon where the documents could be

made available to

her", and the submissions that

"it was almost on

the day set aside for the hearing

of this applicatlon that final

agreement was reached", and that "the procrastination in question

was

unreasonable

and

that

this

should

recognlzed

recommendation being made under s.66". The Tribunal stated that

it made no finding on the conduct

of he Department.

It also based its refusal to make

a recommendation upon the

view that to do so would be to discourage parties from	reaching
agreements and went on to say:

6 .

"It is in the public interest that wherever possible,

agreement be reached between appllcant and respondent

without

the

necessity

full

hearing.

Thls

desirable for a large number of reasons not the least of

which

that

it enables

the

partles

negotlate

flexibly and furthermore it

frees the resources of the

Tribunal to deal with intractable situations.

To regard

the Inevitable delays in reaching agreement as

ground

for making

a recommendation as to costs would be to

punish those who were prepared to review	a situation and
to change their minds.

If a

matter proceeds to

a full hearing (and matters

under

this

Act

can

extraordinarily

lengthy

and

complex

and

therefore

expensive) then

that

would

necessarily

increase

the

financlal

hardship

(if

existed)

which

are

bound

take

account.

Accordingly, anything that can save expense to the

parties and to the community has to be regarded as

desirable objectlve and

something to

encouraged. To

make a recommendation for

payment of

costs

the

present circumstances is not the way to encourage such

conduct.

th refore

decline

make

recommendation sought.

The applicant recognized that it carried the heavy burden

whlch rests upon an appellant from

discretionary decislon,

especially one made by

an administratlve trlbunal.

The appeal ralsed the question whether the Tribunal erred in

law in the exercise of its dlscretion by having regard to the

wrong decision, namely the decision to grant access, and failed to

take into account the relevant decision, namely, the decislon to

refuse access. In my opinion, the Trlbunal

so erred.

Counsel for the Department submitted that there was

"no

decision renewed by

the

Tribunal"

wlthin

the

meaning

s.66(2)(a). because the Tribunal did not proceed to

a hearing upon

the merits but simply proceeded upon the basis of the agreement

7 .

between the parties. In my opinlon, this submission should be

rejected. The Tribunal had become seized of the decisions to

refuse access, and it set aslde those decislons, except as to the

parts set out in its decision

of 20 June, 1985.

To hold that

these decisions were not reviewed by the Tribunal would be

contrary to the natural and ordinary meaning

of the words of the

sub-section and produce the effect that

a Department which made a

proper concession on the hearlng of such

an application to review

could deprive a successful applicant of the benefit of a statutory

ground entitling the Tribunal to exercise its discretlon	on costs
in his or her favour.

In my opinion, the Tribunal erred in law in holding that it

should not have regard to the applicant's submissions on delay and

procrastlnatlon and in

so doing deprlved the applicant

her

rlght to a finding of fact in relation to a matter relevant to the

exercise of Its discretion.

It failed to take into account the relevant considerations,

namely that a

recommendatlon that the costs of

an applicant be

pald would be likely to shorten rather than lengthen proceedlngs.

by encouraging respondents to such appllcations to review to make

prompt declslons in relation to them.

The reasons for the decision of the Tribunal in the present

case have been criticised in other decislons

the Tribunal,

differently constituted

(see Re Robert Paterson

No.2, 2

August

1985, at paras. 36-39 Re Tonv Lianos,

18 October 1985).

The Court orders that:

so much of

the decision of the Tribunal

as relates to

the question of costs be set aside:

the matter be remitted to the Tribunal

hear and

determine the question

costs In accordance wlth the

Court's reasons for judgment;

3 .	the Department pay the applicant's	costs of the appeal
to the Court.

I	certify that th1s and the

preceding seven ( 7 ) pages are a

true copy of the Reasons for

Judgment h rein of The

Honourable Mr. Justice Yweeney.

Dated: 20 December, 1985

zQ&*

. . .

. . . .

ASSO i te

[1985] FCA 648

20 Dec 1985