CATCHWORDS Administrative law - appeal from an order made by the Administrative Appeals Tribunal in relation to the costs of an application made to it under the Freedom of Information Act 1982 - whether the Tribunal failed to take into account relevant considerations and whether it took into account irrelevant considerations. Freedom of Information Act 1982, s.66. Betty Hounslow v Department of Immigration and Ethnic Affairs G. 175 of 1985 Sweeney, J. 20 December, 1985 Melbourne IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW S0UTH WALES DISTRICT REGISTRY } NO. G175 of 1 ) GENERAL DIVISION ) w co wi This is an appeal from the Administrative Appeals Tribunal. Between: BETTY HOUNSLOW Applicant and DEPARTMENT OF IMMIGRATION AND ETHNIC AFFAIRS Respondent THE COURT: Sweeney J. DATE : 20 December, 1985 PLACE : Melbourne MINUTES OF ORDER THE COURT ORDERS THAT: i. so much of the decision of the Tribunal as relates to the question of costs be set aside; 2. the matter be remitted to the Tribunal to hear and determine the question of costs in accordance with the Court's reasons for judgment; 3. Note: the Department pay the applicant's costs of the appeal to the Court. Settlement and entry of orders is deait with in Order 36 of the Federal Court Rules. a1 ' + , q a : a) i ' . . 1, , ' ¥ 4 . 1 ' te a - . rs ' . t ' " mn ' .. tot IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NO. G175 of 1985 ) 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 J. DATE: : 20 December, 1985 PLACE : Melbourne Reasons for Judgment Sweeney J. The applicant, Betty Hounslow, on 26 April 1984 applied to the Department of Immigration and Ethnic Affairs ("the Department") for access under the Freedom of 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 Review of Determination of Refugee Status ("DORS") and the Report on Review of Spouse Policy ("the Spouse Paper"). She was given access to GORSH and it ceased to be the subject of any further claim by her. Access to the Spouse Paper was initially refused on 10 July 1984 and this refusal was confirmed on 10 September 1984 after an internal review of the decision had been made by the Department. In her application to the Administrative Appeals Tribunal ("the Tribunal") dated and lodged 10 October 1984, the applicant included a request to review the decision in relation to the Spouse Paper, and the matter was set down for hearing. Shortly before the hearing date, agreement was reached between the applicant and the Department that the Spouse Paper would be made available to the applicant in full. fn her application, the applicant also sought access to DORS which had been initially refused on 13 September 1984, On 20 September internal review of this refusal was sought by the applicant who had not been notified of any decision on review at the time of making her application, in which it was said on her behalf - "Under those circumstances we take the Department's failure to notify our client of its decision regarding her request for internal review as a refusal of that request and seek a review of that decision." On 13 September 1984 the applicant was advised by the Department that, following upon the internal review, its refusal was maintained. 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, failing agreement between the parties, it would have maintained that 6 additional pages should be exempt from disclosure, but the applicant accepted this further exemption. After the hearing before the Tribunal was completed the Department requested that it be re-opened to enable a claim to be made for the exemption of certain phrases in Folios 193 and 194 of DORS. However, when the applicant agreed to this exemption, the request for a re-opening was withdrawn. The Tribunal held that it had jurisdiction to make a recommendation in terms of s.66 of the F.0.I. Act in relation to the Spouse Paper and DORS, and this finding is not now challenged. Section 66 of the F.0.I. Act reads as follows:- "66. (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 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 sub-section (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." The Tribunal made a decision, dated 20 June 1984, in the following terms:- "By consent, the decisions under review are set aside 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 Australian Procedures for Determing Refugee Status'." It is now common ground that the applicant had made application to the Tribunal, and that she had been successful in her application for review in relation to the Spouse Paper and substantially successful in relation to DORS. The Tribunal was satisfied that the applicant had satisfied the statutory conditions necessary to enable it, in its discretion, to recommend to the Attorney-General that the costs of the applicant in relation to the proceedings be paid by the Commonwealth. The Tribunal came to the conclusion that it should not exercise that discretion in favour of the applicant and it is from 5. that refusal that the present appeal has been brought. Counsel for the applicant and the Department on the appeal joined in informing the Court that when the question of costs was argued before the Tribunal, it was the submission of each of their clients that the application made to the Tribunal was for review of the decisions of the Department by which it refused the applicant access to the Spouse Paper and DORS. However, in its reasons for its decision, the Tribunal made it clear that when it came to consider, within the meaning of s.66(2)(d) "the reasonableness of the decision reviewed by the Tribunal" it had regard, not to the decision 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 described as the many delays by the Department "in finally arriving at the position 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 application that final agreement was reached", and that "the procrastination in question was unreasonable and that this should he recognized by a recommendation being made under s.66". The Tribunal stated that it made no finding on the conduct of the 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: "It is in the public interest that wherever possible, agreement be reached between applicant and respondent without the necessity of a full hearing. This is desirable for a large number of reasons not the least of which 1s that it enables the parties to negotiate flexibly and furthermore it frees the resources of the Tribunal to deal with intractable situations. To regard the inevitable delays in reaching agreement as a 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 toa full hearing (and matters under this Act can be extraordinarily lengthy and complex and therefore expensive) then that would necessarily increase the financial hardship (if it existed) of which we are bound to take account. Accordingly, anything that can save expense to the parties and to the community has to be regarded as a desirable objective and something to be encouraged. To make a recommendation for payment of costs in the present circumstances is not the way to encourage such conduct. We therefore decline to make the recommendation sought." The applicant recognized that it carried the heavy burden which rests upon an appellant from a discretionary decision, especially one made by an administrative tribunal. The appeal raised the question whether the Tribunal erred in law in the exercise of its discretion by having regard to the wrong decision, namely the decision to grant access, and failed to take into account the relevant decision, namely, the decision to refuse access. In my opinion, the Tribunal so erred. Counsel for the Department submitted that there was "no decision reviewed by the Tribunal" within the meaning of 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 between the parties. In my opinion, this submission should be rejected. The Tribunal had become seized of the decisions to refuse access, and it set aside those decisions, 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 hearing of such an application to review could deprive a successful applicant of the benefit of a statutory ground entitling the Tribunal to exercise its discretion 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 procrastination and in so doing deprived the applicant of her right 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 recommendation that the costs of an applicant be paid would be likely to shorten rather than lengthen proceedings, by encouraging respondents to such applications to review to make prompt decisions in relation to then. The reasons for the decision of the Tribunal in the present case have been criticised in other decisions of the Tribunal, differently constituted (see Re Robert Paterson No.2, 2 August 1985, at paras. 36-39 Re Tony 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 to hear and determine the question of costs in accordance with the Court's reasons for judgment; the Department pay the applicant's costs of the appeal to the Court. I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of The Honourabie Mr. Justice Sweeney. Dated: 20 December, 1985 DELON, Art... . Associate