Warda and Minister for Immigration and Citizenship

[2007] AATA 2116

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2116

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1739

GENERAL ADMINISTRATIVE DIVISION		)
Re		DANIEL KHOSHABA WARDA

Applicant

And MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

DECISION

Tribunal Senior Member M D Allen

Date6 December 2007

PlaceSydney

Decision Pursuant to section 66 of the Freedom of Information Act 1982 the Tribunal recommends to the Attorney-General that the costs of the application in relation to these proceedings be paid by the Commonwealth.

..................[sgd]....................

M D Allen

Senior Member

CATCHWORDS

FREEDOM OF INFORMATION – application to make recommendation to attorney-general as to costs – tribunal to have regard to four specified matters: financial hardship to applicant; would decision benefit general public; would decision be of commercial value to applicant; and reasonableness of the decision under review; and other matters – applicant successful in freedom of information application before administrative appeals tribunal – deemed refusal meant no documents released to applicant within time frame set out in freedom of information act – tribunal recommends costs be paid by commonwealth

LEGISLATION

Freedom of Information Act 1982 sections 15, 55, 56, 66, 66(1) and 66(2)

Administrative Appeals Tribunal Act 1975 section 42C

Legal Profession Act 2004 (NSW) section 309

CASELAW

Re Paterson and Department of Arts, Heritage and Environment (No 2) (1983-6) 8 ALD 227

REASONS FOR DECISION

6 December 2007 Senior Member M D Allen  

1.      On 3 October 2006 the Applicant’s solicitors lodged a Freedom of Information request with the Respondent.  At that time the Applicant was applying for a Protection Visa and was in immigration detention.

2.      By letter dated 6 October 2006, the Respondent acknowledged receipt of the Applicant’s request on 3 October 2006.  That letter stated inter alia:

The statutory time appointed for processing requests is 30 days. Unfortunately, however, due to the volume of FOI requests currently being processed by the Department delays have recently occurred resulting in responses to requests sometimes being sent later than the 30 day period.

3. Section 15 of the Freedom of Information Act 1982 reads inter alia:

(1) Subject to section 15A, a person who wishes to obtain access to a document of an agency or an official document of a Minister may request access to the document.

…

(5) On receiving a request, the agency or Minister must:

(a) as soon as practicable but in any case not later than 14 days after the day on which the request is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified that the request has been received; and

(b)as soon as practicable but in any case not later than the end of the period of 30 days after the day on which the request is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified of a decision on the request (including a decision under section 21 to defer the provision of access to a document).

…

4. Section 56 of the FOI Act reads, inter alia, that where a request has been made to an agency or a Minister and a notice of a decision has not been received by the Applicant at the end of the period of 30 days, there is a deemed refusal of the request for the purposes of an application to the Administrative Appeals Tribunal pursuant to s 55 FOI Act.

5. On 3 May 2007, that is to say some six months after the expiry of the 30 days referred to in ss 15 and 56 FOI Act, the Applicant lodged with the Tribunal an application to review the deemed refusal to provide the documents requested.

6.      There was no dispute in these proceedings that the Tribunal was not required to review the deemed decision, as subsequent to the application for review certain documents were released to the Applicant.  Not all documents sought by the Applicant were released to him, but he did not seek to argue that the decision to exempt documents from release should be set aside.

7. In accordance with an agreement between the parties, a decision was made by the AAT pursuant to s 42C of the Administrative Appeals Tribunal Act 1975, substituting for the deemed refusal decision a decision to release documents.

8. On 19 November 2007 the Applicant made a request pursuant to s 66 FOI Act that the Tribunal recommend to the Attorney-General that the costs of the application be paid by the Commonwealth. Section 66 FOI Act states:

(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.

9.      The said application to make the recommendation regarding costs came on for hearing before me at Sydney on 6 December 2007.

10.     At the outset I acknowledge, as was pointed out by Deputy President Hall in Re Paterson and Department of Arts, Heritage and Environment (No 2) (1983-6) 8 ALD 227 the discretion imposed by s 66 is inconsistent with any presumptive entitlement to costs, therefore the principles concerning the award of costs to a successful party in civil proceedings are not appropriate.

11.     At the outset I find that the Applicant has been substantially successful in his application.  The deemed refusal meant that no documents were released to him within the time frame set out in the FOI Act.  Subsequent to his application, certain documents were released to him and although the Applicant seems content to obtain only those documents, I infer that sufficient documents were released to him for his purposes.  In this regard, he has been successful.

12. Subsection 66(2) is subordinate to ss 66(1) and provides that the Tribunal shall have regard to four specified matters, albeit they are not exclusive, in determining whether or not to make a recommendation to the Attorney-General.  I now propose to deal with those matters.

13.     Would the payment of costs cause financial hardship to the Applicant?: Having regard Exhibit A1, which sets out the Applicant’s income and expenditure, I find that he is in straightened financial circumstances, but I do not regard the payment of costs as causing him financial hardship. The Applicant must have been aware that the institution of proceedings in this Tribunal would have incurred legal costs, and he obviously gave instructions to his solicitors to incur those costs. In this regard, I note that s 309 of the Legal Profession Act 2004 (NSW) makes it mandatory to disclose to a client an estimate of the costs likely to be incurred.

14.     Would the decision on review benefit the general public?:  The documents released related to the Applicant and there is no evidence that their release would in any way be of any benefit to the general public.

15.     Would the decision on review be of commercial value to the Applicant?:  There is no evidence that the documents released to the Applicant would be of commercial benefit to him.

16.     The reasonableness of the decision under review:  The decision under review was a deemed refusal. Section 56 FOI Act refers to a decision being made within a period of 30 days. I was informed from the bar table, and see no reason to reject it, that in this matter that would mean that a decision should have been made by 26 October 2006, and thus there was a deemed refusal on that date. The proceedings in this Tribunal were lodged on 3 May 2007. That is a considerable period after the time the decision should have been made. It cannot be said, in my view, that the decision of the Applicant to bring proceedings after that period of time was unreasonable.

17.     The FOI Act clearly sets out the times in which requests for information are to be dealt with.  If Government departments such as the present Respondent cannot adhere to those timelines, as provided by the Act, they should not cavil having to pay the costs incurred by the Applicant before this Tribunal in order to obtain documents under the FOI Act. 

18.     I will therefore recommend to the Attorney-General that the costs of the Applicant in these proceedings be paid by the Commonwealth. 

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:            ........[sgd]........
  Mwela Kapapa, Associate

Date of Hearing  6 December 2007
Date of Decision  6 December 2007

Solicitor for the Applicant          Craddock Murray Neumann

Solicitor for the Respondent     Clayton Utz