Fard v Secretary, Department of Immigration and Border Protection

Solicitor for the Respondent: Mr J Davidson of the Australian Government Solicitor

BETWEEN: SHAHIN DOKHT MODARRESZADEH ESFAHANI FARD Appellant

AND: SECRETARY, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION Respondent

JUDGE: COLLIER J DATE OF ORDER: 13 OCTOBER 2016

In relation to the appellant's interlocutory application filed on 5 October 2016

1. The application for an order granting leave to the appellant to adduce further evidence on appeal under r 36.57 of the Federal Court Rules 2011 (Cth) be refused. In relation to the respondent's interlocutory application filed on 30 August 2016
2. The appellant provide security for costs of the respondent in the amount of $15,000 pursuant to s 56 of the Federal Court of Australia Act 1976 (Cth) and r 36.09 of the Federal Court Rules 2011 (Cth), such costs to be paid into Court.
3. If the appellant does not provide security for costs pursuant to order 2 of these Orders by 4 pm on 20 October 2016: (a) the hearing of the appeal listed for 10.15 am on 31 October 2016 be vacated; (b) Orders 9, 10 and 11 of 8 September 2016 and Orders 7, 8 and 9 of 11 July 2016 be vacated; and (c) the appeal be stayed until further order. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLLIER J: 1 Earlier this week I heard two interlocutory applications in this appeal. In her interlocutory application filed on 5 October 2016 the appellant sought the following orders: 1. An order granting leave to adduce further evidence on appeal under Rule 36.57 of the Federal Court Rules 2011. 2. An order granting leave for Subpoenas to issue. 3. An order directing that the material filed by the Respondent 25 August 2016, consisting of all pages making up Document No. 6 and contained within the Court Book, Part A of the Appeal Book, be struck out, removed and replaced with the Notice of Appeal filed 17 May 2016; or alternatively An order granting leave to file and serve the Court Book, Part A of the Appeal Book, in the form that accords with the Index to Part A, Core Set of Standard Items approved by the Registrar 3 August 2016, and that the material filed by the Respondent 25 August 2016, consisting of all pages making up Document No. 6 and contained within the Court Book, Part A of the Appeal Book be redacted in the court file. 4. An order that the time for filing and serving of this Application be abridged to the relevant time that this application is filed and subsequently served. 5. An order that the Respondent pay the costs of and incidental to the interlocutory application. 6. Such other order that the Court deems fit. 2 In his interlocutory application filed on 30 August 2016 the respondent sought the following orders: 1. The Appellant provide security for costs of the Respondent in the amount of $15,000 (or such other amount as this Court may determine) and that the present proceedings be stayed until such security for costs has been provided pursuant to section 56 of the Federal Court of Australia Act 1976 (Cth) and r 36.09 of the Federal Court Rules 2011 (Cth). 2. If the Appellant does not provide security of [sic] costs as directed by 30 September 2016 (or such date as the Court fixes) the whole of the applicant [sic] is dismissed pursuant to section 56 of the Federal Court of Australia Act 1976 (Cth) and r 36.09 of the Federal Court Rules 2011 (Cth).

Events at the hearing of the interlocutory applications 3 At the interlocutory hearing the respondent did not oppose orders in terms of those sought by the appellant in paragraphs 3 and 4, and I made orders accordingly. 4 In respect of paragraph 2 of the appellant's interlocutory application, Mr Wrenn for the appellant at the hearing explained that draft subpoenas in the form sought by the appellant were attached to the affidavit of the appellant's solicitor Mr Blishen, and named the following subpoenees: the proper officer for the respondent; and Mr Sohyle Lagheyefar, who resides in Kuranda in north Queensland. 5 Principles relevant to the preparedness of the Court to grant leave for the issue of a subpoena to a person to attend Court to give evidence include: the fact that, in principle, there is nothing wrong with seeking to obtain evidence from a competent and compellable witness (Hua Wang Bank Berhad v Federal Commissioner of Taxation (No 12) [2013] FCA 1091 at [8]); whether the person would otherwise be in attendance at Court on the relevant date (Dowling v Fairfax Media Publications Pty Ltd (No 2) [2010] FCAFC 28 at [130]); whether it is in the interests of justice for the order granting leave to be made; whether any evidence the person could say would usefully inform the outcome of these proceedings (Dunstan v Orr [2007] FCA 652 at [8]); and whether there is a legitimate forensic purpose (Dowling v Fairfax [2010] FCAFC 28 at [130]). 6 Further and materially, it is relevant that these proceedings involve a hearing before the Full Court in an appeal from a decision of a single Judge of this Court. In my view the circumstances will be exceptional indeed where an appellate Court is prepared to issue a subpoena for witnesses to give fresh oral evidence at the hearing of the appeal. 7 In this case I put to Mr Wrenn that: It would potentially greatly inconvenience Mr Lagheyefar to travel from Kuranda to Canberra for the hearing of the appeal in circumstances where it was not clear that he would otherwise be in attendance. No explanation had been put to the Court why evidence could not be adduced from these witnesses by way of affidavit rather than a subpoena to personally attend Court. No application for the adducing of fresh evidence sought from these witnesses had been made to the Court. Paragraph 2 contemplated allegedly fresh oral and documentary evidence being given at the hearing of an appeal. However as Mr Davidson for the respondent submitted, this material had been in existence since approximately 1989. 8 In the circumstances, where Mr Wrenn did not press the application for the issue of a subpoena to Mr Lagheyefar, I refused the application in respect of both subpoenas sought. 9 Finally, Mr Wrenn informed the Court that he was not pressing the application for costs in paragraph 5 of the appellant's interlocutory application (transcript p 16 ll 4-8). 10 It followed that the only matters remaining for determination by the Court were: paragraph 1 of the appellant's interlocutory application; and the orders relating to security for costs sought by the respondent in his interlocutory application. 11 Before turning to consider these matters it is useful to briefly examine the primary decision the subject of the appeal.

Primary decision 12 Before the primary Judge the appellant challenged a decision of the Administrative Appeals Tribunal (the Tribunal) pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The Tribunal had dismissed the appellant's application under s 48 of the Freedom of Information Act 1982 (Cth) (the FOI Act) to have records of the Department of Immigration and Border Protection containing her personal information amended. In summary - the appellant submitted that the Departmental records identified, incorrectly, Mr Sohail Laghaifar as her son. (It appears that Mr Laghaifar, who is also the Mr Lagheyefar one of the subjects of the appellant's interlocutory claim for the issue of subpoenas, claims that he is not the appellant's son, but is the grandson of a deposed Shah of Iran.) 13 The Tribunal dismissed the appellant's application for review under s 42B(1)(b) of the AAT Act on the basis that it was satisfied that the application had no reasonable prospects of success. 14 His Honour also noted that the appellant had been a party to earlier related (and unsuccessful) litigation in 2012 and 2013 before Gray J in this Court: Fard v Minister for Immigration and Citizenship [2013] FCA 452. There Gray J concluded at [95] that "the more probable view of the facts of this case" was that Mr Lagheyefar was the appellant's son. A subsequent appeal by the appellant to the Full Court from the decision of Gray J was dismissed: Fard v Minister for Immigration and Border Protection [2013] FCAFC 126. The appellant's application for special leave to appeal to the High Court against the decision of the Full Court was dismissed (Fard v Minister for Immigration and Border Protection [2014] HCASL 85). 15 At [11]-[32] the primary Judge described the proceedings in the Tribunal. In particular, I note the following observations of his Honour: 21. Prior to the AAT's hearing on 24 September 2015, Ms Fard filed two affidavits in the AAT which, she said, included "fresh evidence" which was not available in the earlier proceedings in the Federal Court and which, she submitted, demonstrated that documents before the Court were fabricated. 22. The "fresh evidence" adduced by Ms Fard in the AAT comprised: • a statutory declaration dated 27 January 2015 by Ms Fard's aunt (Roofia Solouki) which attached certificates and travel documents that the aunt said she discovered in an old suitcase in November 2014; • a statutory declaration dated 11 February 2015 by the aunt, which attached various documents from the 1980s and asserted that she did not make, sign or post those documents; • a statutory declaration dated 12 February 2015 by a woman who said that she visited Ms Fard's aunt's home in January 2015 and that she and her husband discovered some documents which were in a hidden compartment of a briefcase which the aunt showed them (the documents were annexed to the affidavit); • a statutory declaration dated 12 February 2015 by that woman's husband in similar terms, with the same documents annexed; and • an affidavit by Mr Qeumars which annexed copies of two travel documents, one of which was amongst the documents discovered in the hidden compartment and was also attached to Ms Fard's affidavit. 23. Ms Fard contended in the AAT that this "fresh evidence" demonstrated that some of the documents that were before Gray J had been tampered with. 16 Relevantly, his Honour noted the findings of the Tribunal that: it was likely that the latest "fresh evidence" had been concocted for the purposes of the Tribunal review (at [30]); it was highly improbable that documents had remained undiscovered for so long and revealed only after two visitors to the appellant's aunt had inspected the contents of a briefcase; the findings of fact by Gray J had been made on the basis of many documents and several witnesses; the appellant suggested a conspiracy broader than the fabrication of documents, which was highly improbable. 17 As his Honour observed, the Tribunal concluded that it could not make the factual findings required under s 48 of the FOI Act - namely that the Department's records were incorrect - for the appellant's application to succeed. 18 Before his Honour the appellant claimed, inter alia, that: she had been denied procedural fairness by the Tribunal; the Tribunal's decision had been made in the absence of evidence which had been withheld by the respondent in respect of certain visa codes; the Tribunal had failed to consider the fresh evidence advanced by the appellant; the Tribunal should have referred the decision to the Federal Court; the visa for Mr Lagheyefar visa number V6190309C subclass K4551 issued 11 December 1989 was a false document. 19 The appellant also requested the Court to make specific findings of fact. 20 At first instance in these proceedings the appellant also filed two interlocutory applications. In her first interlocutory application the appellant sought to adduce further evidence in the proceedings before his Honour, namely: (a) a copy of version 1 of Document for Travel to Australia 032105, visa number V619<00309C K4551 W303DU; (b) a copy of version 2 of Document for Travel to Australia 032105, visa number V619<00309C K4551 W303DU; (c) a copy of Ms Fard's written submissions dated 14 July 2015 in the AAT; (d) a copy of AAT Direction dated 16 July 2015; (e) a copy of AAT Direction dated 10 August 2015; and (f) copies of what was described as "new evidence received from Embassy of the Islamic Republic of Iran the Applicant requests the Court to receive on appeal (Rule 36.57)". 21 Category (f) was not pressed before his Honour by the appellant, apparently after the Department had refused to admit the authenticity of those documents and had filed an affidavit which annexed correspondence from the Iranian embassy questioning the authenticity of two email letters. This material included a series of what purported to be original documents in Farsi with English translations. 22 His Honour referred to the decision in P v Child Support Registrar [2015] FCA 116, and observed: 50. It is important to note that the Court's power to make findings of fact under s 44(7) of the AAT Act does not extend to making findings of fact which are inconsistent with findings of fact made by the AAT, apart from findings made by the AAT as the result of an error of law. 51. Putting to one side the 48 pages of "fresh evidence" which was not pressed in the first interlocutory application, Mr Wrennn (who appeared for Ms Fard) did not dispute that the rest of the material the subject of the first interlocutory application was already included in the Part C Book in the Court proceeding. Accordingly, there was no utility in further admitting those materials into evidence. 23 Accordingly his Honour dismissed the first interlocutory application. 24 In her second interlocutory application the appellant sought case management directions. His Honour dismissed this interlocutory application for reasons including that the appellant relied on rules which did not apply to "appeals" from the Tribunal; that the objective of the appellant was evidently to provide an evidentiary foundation for the Court to make findings of fact inconsistent with those made by the Tribunal; and that the appellant sought to put before the Court materials which were before Gray J but not before the Tribunal (where no explanation had been given for why the materials had not been put to the Tribunal). 25 His Honour then turned to the appellant's substantive appeal, and concluded that the Tribunal had not acted in a way which was procedurally unfair, and that the appellant had not made good her other claims in the notice of appeal. In particular his Honour observed: The Department's failure to provide information or material concerning the meaning of the relevant visa codes did not give rise to procedural unfairness. No practical injustice had been established (at [72]-[73]). It was clear in any event that the Tribunal had considered the "fresh evidence" tendered by the appellant in conjunction with the other material before it (at [75]). 26 His Honour dismissed the application before him. 27 I note that the sole ground of appeal from his Honour's decision is: 1. The decision was unjust and unfair.

Application for fresh evidence 28 The fresh evidence the appellant seeks leave to adduce in this appeal pursuant to paragraph 1 of her interlocutory application under r 36.57 of the Federal Court Rules 2011 (Cth) (the Rules) is that set out in annexure "SDMEF-2" exhibited to the appellant's affidavit filed on 5 September 2016 and annexure "CPB-1" exhibited to the affidavit of the appellant's solicitor Christopher Phillip Blishen filed 5 October 2016. 29 Annexure "SDMEF-2" is described at paragraph 6 of the appellant's affidavit filed 5 September 2016 as comprising: … true copies of Iranian identification documents and information, that in 1981 an Iranian male person in Iran by the name AVAZALI YOUSEFI UNCHEH, born 1945 in Tehran, Iran, holder of Iranian identification card No. A/80-468718, the employee and holder of official seal of Notary Public Office No. 2 of the Islamic Republic of Iran, also recorded smuggler and trafficker of cocaine and heroin manufacturing, wherein the 1981 passport photograph of Mr Avazali Yousefi Uncheh affixed on Document for Travel to Australia 032105 issued 11/12/89; Whereas, Mr Avazali Yousefi Uncheh in 1981 created document No. 42551 for a male person by the name FARHAD NOORANBAKHT in Iran; And Whereas, Document for Travel to Australia 032105 issued and typed female name and identify Sohyle Lagheyefar. 30 An examination of the annexure reveals that it is a bundle of some twenty pages, constituting: A document, in English, apparently from the Atena Translation Office, addressed to the Iranian Embassy in Canberra, the Australian Attorney-General's Department in Canberra and the Department of Immigration and Border Protection in Canberra. It purports to be a document under the hand of Mr Mahmoud Ghasemi Commissioner of Taxation and expert tax auditor in Tehran, Iran, dated April 18th 2016, and is stamped "Official Translation Office". Materially, it provides: Be advised: Mr Manonchehr Laghaifar B.C. No. 458 born 27.07.1944 and Ms Shahin Dokht Nozohoorr Mehrabad B.C. No 727 born 09.04.1947 never had a male child in the name Mr Sohail Laghaifar or Mr Sohyle Lageyefar or by any other spelling. There is no male person with a female name and identity as Sohyle Lageyefar or as Mr Sohail Laghalfar ever born in 1965, 1966, 1967, 1968, 1969 or by any other spelling or date of birth existed in Iran. Be advised: Fraudulent document No 42551 dated Oct. 14, 1981 created for Mr Farhad Nooranbakht BC. No 898 born 24.06.1946 as marriage certificate between Ms Roofia Solouki Shishavan and Mr Farhad Nooranbakht is fraud and was created by Mr Avazali Yousefi Uncheh B.C. No. 2505 born 04.01.1945 a trafficker of heroin and cocaine and he was the former employee of State registration office No. 2 of city of Noshahr, Iran. Be advised: The 1981 photograph of Mr Avazali Yousefi Uncheh at the age of 40 (trafficker of heroin and cocaine) affixed on Document for Travel to Australia 032105 issued 11.12.1989. As to request No X56J627A to certify document No. 42551 for Federal Circuit Court, if request was made many years ago, identity of Mr Uncheh and fraudulent creation of Mr Sohyle Lagheyefar/Sohail Laghaifar had been declared to Australian Government many years ago. (Notes omitted.) What appears to be detailed personal information concerning Mr Mahmoud Ghasemi, translated into English, dated 20 July 2015 and certified on 18 April 2016 as translated. Information concerning Yosefi Uncheh, translated into English. A letter purporting to be from Police Colonel Ali Akbar Akhavan (translated into English) dated 16 July 1995, stating - in summary - that a person known as AvazAli Yusefi Uncheh is "famous as master of heroin manufacturing", and that a particular travel document in the name of Sohyle Lagheyefar with a man in the photograph is a fraud. An Official Translation into English of an affidavit registered at the Notary Public Office No 2 Noshahr in Iran, and dated 14 October 1981. The affidavit appears to confirm that Ms Roofia Solouki Shishavan had been divorced from Mr Nosratollah Vosough on 12 March 1972 and married to Mr Farhad Nouranbakht on 1 October 1974. The document states that it was issued upon the request of "Mr Avazali YOSEFI UNCHEH". A document of 4 pages addressed "To Whom It May Concern", translated into English by the Atena Translation Office. Materially this document states that Sohyle Lageyefar is a woman, there is no man with that name, and the travel document in the name of Sohyle Lageyefar with a photograph of a man is fraudulent. A one page document translated into English headed "Branch 101 of Special Civil Court of Tehran", dated 4 August 1993, which appears to relate to the divorce of Mr Fariborz Ghotbi and Mrs Sohyle Lageyefar. A one page document in English apparently under the hand of the "First Secretary/Immigration at the Australian Embassy", addressed to Sohyle Lageyefar, with two photographs of a woman appended, informing her that her application for "Migration to Australia had been approved" under "the Australian Government's Special Humanitarian Program". The document appears to be dated 14 March 1989. A two page document which appears to be a "document for travel to Australia" in the name of Sohyle Lageyefar. 31 Annexure "CPB-1" contains a number of the same documents as in "SDMEF-2". In his affidavit Mr Blishen describes "CPB-1" as consisting "of a number of documents presented by Mahmoud Ghasemi, Commissioner of Taxation in Tehran Iran 13 March 2016 and details the results of an investigation of government records held in Iran". 32 In support of her application for this evidence to be included in material before the Full Court, the appellant submits, in summary: This evidence demonstrates that documents held in the respondent's records are incorrect. At first instance in these proceedings the respondent presented material to the Court which had been before Gray J, indicating that a male person named Sohyle Lageyefar was the appellant's son. The evidence was not readily available at the time when directions were first made in the application for review of the decision before the Tribunal. This evidence had been obtained from Iran at great personal and financial expense on the part of the appellant, who travelled to Iran to instigate and complete the investigation of the Iranian government records. The appellant had limited time to prepare and present the evidence on her return around the time of the hearing before the primary Judge. 33 Mr Wrenn submitted further that documentation arrived on the date of the hearing before the primary Judge, namely 18 April 2016, and that it had not been pressed before the primary Judge when the respondent questioned its authenticity. 34 The respondent opposed the admission of fresh evidence in the appeal because, in summary: The jurisdiction of the Federal Court to review decisions of the Tribunal is limited, and the potential relevance and weight of proposed fresh evidence must be assessed in that light: Sami v Minister for Immigration and Citizenship [2013] FCAFC 128 at [7]. There is no evidence that the appellant was incapable, at an earlier stage, of making the inquiries which apparently elicited the new material on which she now seeks to rely. There is nothing in the evidence on which the appellant seeks to rely which goes to the manner in which the proceeding before the primary Judge allegedly foundered for want of fairness. 35 In my view the Court should refuse the relief sought by the appellant in paragraph 1 of her interlocutory application. The appellant should not be permitted to adduce the evidence in Annexures SDMEF-2 and CPB-1 in this appeal for the following reasons. 36 Rule 36.57 of the Rules provides as follows: Further evidence on appeal (1) A party may apply for the Court to receive further evidence on appeal. (2) The application must be filed at least 21 days before the hearing of the appeal and be accompanied by an affidavit stating the following: (a) briefly but specifically, the facts on which the application relies; (b) the grounds of appeal to which the application relates; (c) the evidence that the applicant wants the Court to receive; (d) why the evidence was not adduced in the court appealed from. (3) The application and the affidavit must be filed as follows: (a) if the appeal is to the Full Court - 4 copies; (b) if the appeal is to a single Judge - 2 copies. (4) Any other party to the appeal who wants to adduce evidence on the appeal must file an affidavit at least 14 days before the hearing of the appeal. Note: Section 27 of the Act allows the Court to receive further evidence on appeal. 37 I note that the appellant has sought to adduce fresh evidence in various forms before the Tribunal, the Judge at first instance, and in this appeal. The Rules provide strict guidelines for applications to adduce fresh evidence in an appeal, for the very reason that such applications are the exceptions rather than the rule. Conducting litigation in a fashion whereby the case put by the applicant is not the entire case to be met by the respondent, such that the applicant seeks to vary its position on review or appeal, is both inefficient and potentially unjust to the respondent unless good reasons are shown for the deficiency in evidence at first instance. The history of these proceedings suggests that the appellant has conducted this litigation in precisely that fashion. 38 In this case the appellant submits that she is an elderly pensioner, and only managed to obtain this fresh evidence with difficulty and expense. However it is clear that the appellant has pursued this litigation, in one form or another, since at least 2012, including to the High Court of Australia. It is possible that she commenced these proceedings before the Tribunal and the primary Judge as a result of comments of the Full Court in the appeal from Gray J, however no explanation has been put to this Court why the appellant could not have sought the evidence she now seeks to adduce at an earlier time. 39 Further, as the respondent correctly submits, under r 36.57 of the Rules the appellant must describe the ground(s) of appeal to which the application for fresh evidence relates. In this case the appellant seeks to rely on only one ground of appeal, namely that the decision of the primary Judge was unjust and unfair. It may be that the evidence upon which the appellant now seeks to rely is relevant. Indeed, this evidence may be such that the Tribunal could have formed a different view had the Tribunal had the advantage of receiving it at the relevant time. This, however, is simply speculation. Indeed, I note that: It is simply not reasonable to suggest that the existence of evidence which was not before the primary Judge could in any way have resulted in that decision being "unjust and unfair". I make this observation in light of the apparent circumstance that the appellant chose not to press this evidence for consideration by the primary Judge. It is not the role of either the primary Judge or this Court to conduct a merits review of the decision of the Tribunal. The tenor of the appellant's case in respect of this evidence is that she is inviting the Court to undertake such an impermissible review. As the respondent correctly submitted, Sami [2013] FCAFC 128 is authority for the proposition that the Court must have regard to the limits of its jurisdiction in reviewing decisions of the Tribunal in assessing the potential relevance and weight of the fresh evidence sought to be adduced. 40 Paragraph 1 of the appellant's interlocutory application is dismissed.

Security for costs 41 At the hearing Mr Davidson for the respondent sought to refine the orders sought by the respondent in his interlocutory application filed on 30 August 2016 in respect of security for costs. In particular, the modified orders sought by the respondent were:

1. The appellant pay security for costs in the amount of $15,000 (or such other amount as the Court deemed appropriate), such payment being into Court.
2. The matter be stayed until security for costs were paid by the appellant in accordance with order 1.
3. If security for costs is not paid in accordance with order 1 by 17 October 2016 the hearing date of the appeal and current timetabling directions in the appeal be vacated.
4. If security for costs is not paid in accordance with order 1 by 13 November 2016 the appeal be dismissed. 42 The respondent's submissions in support of the application for security for costs were, in summary: The respondent has a stronger claim to security on appeal because there is an existing decision of primary Judge which is presumed to be right until displaced. To that extent, the appellant "has had her day in Court". There is serious doubt as to whether any costs order against the appellant would ultimately be satisfied in the event that the respondent was successful and was awarded costs. The appellant has an outstanding costs debt for proceedings before Gray J and the appeal from that decision, taxed at $131,500, which remains outstanding. So far as concerns the appellant's prospects of appeal - the appellant relies on only one ground of appeal, which is not particularised and does not identify any error on the part of the primary Judge. While the notice of appeal was filed on 17 May 2016 and the respondent's interlocutory application not filed until 30 August 2016, the respondent's delay in seeking security for costs should not disentitle him to an order in circumstances where the interlocutory application was filed prior to the filing of the appellant's submissions. 43 The respondent also relied on an affidavit of Ms Cathy Yi He, a solicitor employed in the office of the respondent's lawyers (the Australian Government Solicitor). In her affidavit affirmed 30 August 2016 Ms Yi He, who has conduct of the matter, deposed that the likely cost of the appeal, including preparing for and briefing counsel to appear at a half day hearing, would amount to approximately $15,000-$17,000 (including GST) in total. This evidence is not contested. 44 The appellant opposed the application for security for costs because, in summary: both the Tribunal and the primary Judge fell into error by allowing the respondent to withhold evidence; and the appellant should be considered as having good prospects of success because the strength of her appeal is now centred on the further fresh evidence. 45 The respondent's application for payment of security for costs by the appellant is unusual in the sense that the appellant is an individual. As a general proposition Courts are loath to order security for costs against an individual if the effect of the order is to deprive an appellant of his or her opportunity to pursue a case which has reasonable prospects. However there is no limitation to that effect in s 56 of the Federal Court of Australia Act 1976 (Cth) which materially provides: (1) The Court or a Judge may order an applicant in a proceeding in the Court, or an appellant in an appeal under Division 2 of Part III, to give security for the payment of costs that may be awarded against him or her. (2) The security shall be of such amount, and given at such time and in such manner and form, as the Court or Judge directs. 46 Similarly r 36.09 of the Rules provides: (1) A party may apply to the Court for an order that: (a) the appellant give security for the costs of the appeal, and for the manner, time and terms for giving the security; and (b) the appeal be stayed until security is given; and (c) if the appellant fails to comply with the order to provide security within the time specified in the order--the appeal be stayed or dismissed. (2) An application under subrule (1) must be accompanied by an affidavit stating the facts in support of the application. 47 As the respondent correctly submits, the position in respect of security for costs orders on appeals differ from proceedings at first instance. The position in appeals was articulated in Cowell v Taylor [1885] 31 ChD 34 at 38 in the following terms: The general rule is that poverty is no bar to a litigant, that, from time immemorial, has been the rule at common law … There is an exception in the case of appeals, but there the appellant has had the benefit of a decision by one of Her Majesty's Courts, and so an insolvent party is not excluded from the Courts, but only prevented, if he cannot find security, from dragging his opponent from one Court to another. 48 More recently Spender J in Tait v Bindal People [2002] FCA 322 at [4] observed: In a sense, it would be giving to a person who has been on the receiving end so to speak of a determination by the courts a free hit at great cost to the other party in the appeal proceedings … 49 Appellate courts have, however, taken a more stringent view against ordering security for costs in circumstances where substantive questions of law are in contention (Cummings v Lewis (1991) 32 FCR 534), where points of law raised in appeal may affect matters of public importance (Smail v Burton (1975) VR 776), and where the appeal had penal consequences (Hood Barrs v Heriot (1896) 2 QB 375). 50 Otherwise, relevant factors for consideration in applications for security for costs include the prospects of success, the risk that a costs order would not be satisfied, whether the order would stifle a reasonably arguable claim, whether any impecuniosity of the appellant arises out of conduct that is the subject of the complaint, and whether there are particular discretionary matters peculiar to the circumstances of the case: Dubow v Official Receiver (NSW) [2013] FCA 709. 51 In this case I am satisfied that an order for security for costs should be made in favour of the respondent, although not precisely in the terms he has sought. I have so concluded for the following reasons. 52 First, while I have not yet had the benefit of fulsome submissions in support of the appellant's case, as matters currently stand I consider that the prospects of success of the appeal are low. I have already noted that the appellant relies on one, unparticularised ground of appeal against the decision of the primary Judge. I note again the limitations on the jurisdiction of the Federal Court in reviewing decisions of the Tribunal, and the fact that the appellant in this case appears to seek, in essence, a merits review of the decision of the Tribunal, based on the fresh evidence she has sought to adduce. Indeed, it was apparent during the course of the interlocutory hearing that the appellant and her legal representatives placed considerable weight on the fresh evidence they sought to adduce, but which (for reasons I have given) I have refused to allow. 53 Second, it is apparent that the appellant is of limited financial means, and that an order for security for costs may effectively bar her from proceeding with the appeal, at least temporarily. However this issue in itself is not decisive of the application before me. Further, the corollary of this impecuniosity is that the likelihood of the appellant satisfying an adverse costs order against her is low. This is of particular note in light of the evidence of Ms Yi He that the appellant has not paid existing costs orders against her in earlier related litigation before Gray J and the Full Court. 54 Third, as Mr Davidson submitted, the substantive remedy the appellant sought in the Tribunal was the amendment of records of the Department of Immigration and Border Protection under the FOI Act. There is no apparent statutory or other bar to the appellant making a fresh application to the Department with her fresh evidence to seek a change to the decision at that level. To that extent, while a security for costs order may have the consequence of preventing the appellant progressing this litigation, as a practical matter she is not barred from seeking the remedy she is pursuing from the Department. 55 Fourth, as the material before the Court reveals, the appellant has had multiple opportunities to pursue the remedy she seeks and to date has been comprehensively unsuccessful. In this respect the prejudice to the respondent in incurring costs to meet a further appeal is a significant factor in favour of an order for security for costs. 56 Fifth, no questions of substantive law, public importance or penal application arise in this appeal. 57 Sixth, while the application for security for costs was filed some months after the notice of appeal, no matters appear to turn on the delay. In my view this issue is neutral. 58 Seventh, the amount of security for costs sought by the respondent - namely $15,000 - is supported by evidence of Ms Yi He, and is a relatively modest sum for an appeal to the Full Court. 59 I accept the submission of Mr Davidson that it would be appropriate to order the proceedings stayed pending payment of security, however in the circumstances I am not persuaded that the payment must be made by 17 October 2016, which is four days hence (and includes a weekend). This period does not allow the appellant a proper opportunity to raise funds to comply with the orders of the Court. In my view it is appropriate to allow the appellant one week, namely until 4 pm on 20 October 2016, to pay security for costs into Court. 60 I am, however, not prepared to make an order that the appellant's appeal be dismissed in the event that she does not pay security for costs by 17 October 2016. In Endormer Pty Ltd v Australian Guarantee Corporation Ltd [2001] FCA 510 at [5] Beaumont J observed, in respect of a security for costs order his Honour had made in an earlier case: The order in that case was in the usual form, that is to say, that unless, before a certain date, security for costs in the amount specified was provided, the proceedings on the appeal be stayed. Such an order is, in my view, interlocutory both as a matter of form and substance. In other words, in my view, a single Judge cannot exercise the appellant [sic] jurisdiction of the Court to dismiss an appeal in the event that security were not provided; or even to order a permanent stay of proceedings on the appeal. (Emphasis added.) 61 His Honour continued at [7]: As I have said, any order made for security, whether made by a single Judge or by a Full Court, is necessarily interlocutory and may therefore be varied or discharged by another Judge or by a Full Court with jurisdiction to deal with such an interlocutory question. It is clear from the terms of s 56(1) that the Full Court has this interlocutory jurisdiction. 62 While there have been cases in this Court where single Judges have ordered appeals dismissed in the event of non-payment of security for costs (for example Fazio Richards Pty Ltd v Ibis Way Pty Ltd [2016] FCA 1082) it is not clear to me that one member of the appellate Bench exercising interlocutory powers to order security for costs has power to finally dispose of the substantive appeal in the event of non-payment. There is an important distinction between a single Judge in the appellate context ordering a stay on an interlocutory basis pending payment of security for costs - which is conventional in circumstances where security for costs is ordered (see, for example Tait v Bindal People; Clack v Collins (No 1) [2010] FCA 513; Carey v Freehills [2014] FCA 325; MYVC v Director-General of Security [2015] FCA 1521 and Flick GA, Federal Court Practice (Thomson Reuters, subscription service) at [FCA56.30]) - and that same Judge making final dispositive orders in the appeal in the event of non-payment of that security (for example Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd [2006] FCAFC 48). In the absence of authority from the Full Court resolving this matter I consider the better approach is that it is for the Full Court in an appeal to finally dismiss an appeal for want of payment of security for costs, not a single member of the Bench at an interlocutory stage of the proceedings. 63 As such, if security for costs is not paid into the Court by 4 pm on 20 October 2016, the matter will be stayed until further order. 64 I note that the current timetabling orders require the appellant to file and save certain materials by 17 October 2016. I see no reason at this stage to disturb those timetabling orders. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.