FEDERAL COURT OF AUSTRALIA

MYVC v Director-General of Security [2015] FCA 1521 

Citation:	MYVC v Director-General of Security [2015] FCA 1521	
		
Appeal from:	MYVC v Director-General of Security [2014] FCA 1447	
		
Parties:	MYVC v DIRECTOR-GENERAL OF SECURITY, MINISTER FOR FOREIGN AFFAIRS and ADMINISTRATIVE APPEALS TRIBUNAL	
		
File number:	NSD 165 of 2015	
		
Judge:	WIGNEY J	
		
Date of judgment:	4 May 2015	
		
Catchwords:	PRACTICE AND PROCEDURE – appeals – interlocutory application – application for an order for security for costs of an appeal pursuant to s 56 of the Federal Court of Australia Act 1975 (Cth) and r 36.09 of the Federal Court Rules 2011 (Cth) – principles and rules relevant to an application for security for costs of an appeal – whether an order for security for costs is appropriate – relevant considerations in determining whether the Court should exercise its discretion in favour of an order for security for costs – where the appellant is not ordinarily resident in Australia – where there is no evidence that the appellant has any assets in Australia – where appellant has led evidence of assets and income overseas to enable the provision of security and to prosecute the appeal – whether any adverse costs order against the appellant could be enforced under the Foreign Judgments Act 1991 (Cth) – whether appeal concerns an issue of public importance – interests of justice favouring the granting of the application for security for costs 	
		
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth), ss 39A, 39A(8), 39A(9), 44
Australian Passports Act 2005 (Cth), ss 14(1), 22(2)(d)
Australian Security Intelligence Organisation Act 1979 (Cth), ss 4, 17(1)(c), 37(1)
Federal Court of Australia Act 1976 (Cth), ss 24, 56
Federal Court Rules 2011 (Cth), rr 36.01(2)(c), 36.09, 36.11
Foreign Judgments Act 1991 (Cth) 	
		
Cases cited:	Barton v Minister for Foreign Affairs (1984) 2 FCR 463
Devenish v Jewel Food Stores Pty Ltd (1990) 94 ALR 664; 64 ALJR 533
Farmitalia Carlo Erba SrL v Delta West Pty Ltd (1994) 28 IPR 336
Hussain v Minister for Foreign Affairs (2008) 169 FCR 241
Jaffarie v Director-General of Security (2014) 226 FCR 505
Logue v Hansen Technologies Ltd (2003) 125 FCR 590
Merribee Pastoral Industries Pty Limited v Australia and New Zealand Banking Group Limited (1998) 193 CLR 502
P S Chellaram & Co Ltd v China Ocean Shipping Co (1991) 102 ALR 321
Tait v Bindal People [2002] FCA 322
Tan Kah Hock v AWAP SGT 26 Investment Ltd [2008] FCA 540 	
		
Date of hearing:	4 May 2015	
		
Place:	Sydney	
		
Division:	GENERAL DIVISION	
		
Category:	Catchwords	
		
Number of paragraphs:	61	
		
Counsel for the Appellant:	Mr S E J Prince with Mr P W Bodisco 	
		
Solicitor for the Appellant:	Rasan T Selliah & Associates	
		
Solicitor for the First and Second Respondents:	Mr P Melican of Australian Government Solicitor	
		
Counsel for the Third Respondent:	The Third Respondent filed a submitting appearance subject to being heard in relation to costs	

IN THE FEDERAL COURT OF AUSTRALIA		
NEW SOUTH WALES DISTRICT REGISTRY		
GENERAL DIVISION	NSD 165 of 2015	

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA	

BETWEEN:	MYVC
Appellant
	
AND:	DIRECTOR-GENERAL OF SECURITY 
First Respondent

MINISTER FOR FOREIGN AFFAIRS 
Second Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Third Respondent

JUDGE:	WIGNEY J	
DATE OF ORDER:	4 MAY 2015	
WHERE MADE:	SYDNEY	

THE COURT ORDERS THAT:

1.	Within 28 days of the date of these orders the appellant give security for the first and second respondents’ costs of the appeal in the sum of $30,000 by:
(a)	paying the money into Court; or
(b)	providing to the New South Wales District Registrar of this Court (the Registrar) an unconditional bank guarantee from an Australian-owned bank (as recognised by the Australian Prudential Regulation Authority) in a form acceptable to the Registrar.
2.	The appeal be stayed until the security is given in accordance with the terms of Order 1.
3.	In the event that the security is not provided in accordance with Order 1, the hearing date be vacated and the appeal be stayed.
4.	The appellant pay the first and second respondents’ costs of and incidental to its interlocutory application.
Note:	Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA		
NEW SOUTH WALES DISTRICT REGISTRY		
GENERAL DIVISION	NSD 165 of 2015	

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA	

BETWEEN:	MYVC
Appellant
	
AND:	DIRECTOR-GENERAL OF SECURITY 
First Respondent

MINISTER FOR FOREIGN AFFAIRS 
Second Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Third Respondent

JUDGE:	WIGNEY J	
DATE:	4 MAY 2015	
PLACE:	SYDNEY	

REASONS FOR JUDGMENT
(Delivered ex tempore, revised from transcript)
1	In these proceedings, the appellant, who is identified by the pseudonym MYVC, appeals against the judgment of a single judge of this Court delivered on 12 December 2014 (the Judgment).  The primary judge dismissed the appellant’s appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) against a decision of the Administrative Appeals Tribunal (the Tribunal).  The Tribunal’s decision was to affirm two decisions: first, a decision by the Australian Security Intelligence Organisation (ASIO) to furnish the Department of Foreign Affairs and Trade (DFAT) with an adverse security assessment and a request to cancel the appellant’s Australian passport and to refuse to issue him a new passport; and second, a decision by the Minister for Foreign Affairs (the Minister) to cancel the appellant’s Australian passport and to refuse to issue him with a new passport. 
2	In this interlocutory application, the first and second respondents to the appeal (the Director-General of Security and the Minister) apply for an order for security for costs pursuant to s 56 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 36.09 of the Federal Court Rules 2011 (Cth) (Federal Court Rules).  The third respondent, the Tribunal, has filed a submitting appearance.  
THE DECISION OF THE PRIMARY JUDGE 
3	The application before the primary judge was an appeal from the Tribunal on questions of law under s 44 of the AAT Act.  The Tribunal’s decisions and reasons are not before the Court on this application, though the primary judge records in the Judgment that the Tribunal affirmed two decisions, being the decision of ASIO to furnish DFAT with an adverse security assessment and request to cancel the appellant’s Australian passport and to refuse to issue a new passport, and the decision of the Minister to cancel his Australian passport and to refuse to issue a new passport.  The first decision was made pursuant to s 14(1) of the Australian Passports Act 2005 (Cth) (Passports Act) in pursuance of ASIO’s functions under ss 17(1)(c) and 37(1) of the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act).  The decision by the Minister was made under s 22(2)(d) of the Passports Act.  
4	The primary judge records in the Judgment that the two challenged decisions were underpinned by ASIO’s conclusions in its adverse security assessment that the appellant had been engaged in people smuggling whilst travelling overseas on his Australian passport, and that the cancellation of his passport would restrict the appellant’s ability to engage in those activities (Judgment at [2]). 
5	It would appear from the Judgment that the critical issue in relation to the decision by ASIO turned on the definition of “security” in s 4 of the ASIO Act.  Paragraph (aa) of the definition of “security” in s 4 of the ASIO Act provides that “security” means:  
[T]he protection of Australia’s territorial and border integrity from serious threats 

6	The questions posed by the Tribunal in relation to the issue before it concerning ASIO’s decision were said by the primary judge to be threefold, namely (Judgment at [26]): 
(1)	whether organised people smuggling could prejudice Australia’s security, as defined in s 4 of the ASIO Act;
(2)	whether the Director-General could suspect, on reasonable grounds, that the [appellant] would engage in such organised people smuggling; and
(3)	whether the Director-General could suspect, on reasonable grounds, that cancellation of the [appellant’s] passport would prevent such activity.

7	The Tribunal answered each of these three questions in the affirmative.  It found, in summary, in relation to the first question that (Judgment at [35]):
… it is reasonable for the Tribunal to find that organised people smuggling poses a serious threat to Australia’s border integrity.

8	In relation to the second question, the Tribunal found that the Director-General of Security could suspect, on reasonable grounds, that the appellant would be likely to engage in organised people smuggling.  It is relevant to note at this stage that the hearing before the Tribunal apparently proceeded in accordance with s 39A of the AAT Act.  Subsection 39A(1) of the AAT Act provides that: 
If an application for a review of a security assessment is made to the Tribunal, the Tribunal is to review the assessment in accordance with this section.

9	Subsections 39A(8) and (9) of the AAT Act provide, in summary, for a procedure that permits evidence to be adduced, and submissions to be made, by or on behalf of the Director-General of Security or ASIO, in the absence of the appellant and the appellant’s lawyers.  That is essentially what occurred in the appellant’s case before the Tribunal.  Evidence was adduced, and submissions were made, on behalf of the Director-General of Security and ASIO in the appellant’s absence and in the absence of the appellant’s lawyers.  Important also is the fact that it appears that the critical findings made by the Tribunal, in particular in relation to the second question, were made by the Tribunal on the basis of that so-called “closed” evidence.  
10	There appears to have been some considerable debate before the primary judge as to whether the appellant had framed questions of law and grounds of appeal in accordance with the requirements of s 44(1) of the AAT Act.  Ultimately, the primary judge gave the appellant leave to file an amended notice of appeal that specified the following two questions of law: 
(1)	Did [the] Tribunal err in its consideration of section 4(aa) of the ASIO Act by holding that people smuggling or organised people smuggling posed a serious threat to Australia’s territorial and border integrity and by failing to ask itself the correct question, namely whether it identified any basis upon which it could be concluded that the activities of the applicant and his involvement in “people smuggling” constituted such a “serious threat to Australia’s territorial and border integrity” for the purposes of s 4(aa) of the ASIO Act?

(2)	Did the Tribunal erred [sic] by denying the Applicant procedural fairness in that: 

1.	it failed to apply the principles of Browne v Dunne (1893) 6 R 67 in finding that the applicant had engaged in people smuggling activities and that his evidence denying such involvement was not to be accepted and did that failure, in all of the circumstances, contribute to the hearing being procedurally unfair?

2.	it failed to draw inferences in respect to the unexplained failure of the Respondents to call witnesses ordinarily expected to have been called and from which no excuse was given, (as discussed in Jones v Dunkel (1959) 101 CLR 2) in circumstances where the only witness advanced by the Respondent was a person not involved in the investigation of the applicant’s activities and, did that failure, in all of the circumstances, contribute to the hearing being procedurally unfair?

3.	it made findings of the applicant’s criminality and rejection of his evidence on oath in circumstances where it refused to apply the standard of satisfaction for making such findings explained in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 and, did that failure, in all of the circumstances, contribute to the hearing being procedurally unfair? 

11	The grounds of appeal set out in the amended notice of appeal were essentially that the Tribunal had erred in the ways referred to in these two questions.  That is, the grounds did no more than answer, in the affirmative, the two questions of law.  
12	The primary judge found that the Tribunal did not err in either of the ways contended by the appellant.  
13	In relation to the first question of law (and associated ground), concerning paragraph (aa) of the definition of “security” in s 4 of the ASIO Act, the primary judge found that what was alleged in the question and ground to be the “correct question” was not the question that the Tribunal was required to ask and answer (Judgment at [56]).  Rather, the Tribunal asked and answered the correct statutory question, which was whether it should make a refusal/cancellation request under s 14 of the Passports Act (Judgment at [54] and [63]).  The primary judge concluded as follows (Judgment at [55]): 
The Tribunal asked itself whether organised people smuggling could prejudice Australia’s territorial and border integrity and could pose a serious threat from which that integrity should be protected and, if so, whether standing in ASIO’s place as decision-maker, it could form the suspicions under each of s 14(1)(a) and (b) of the Passports Act.  That process of reasoning followed the statutory scheme that the application for review of the decision to make the adverse security assessment under s 54 of the ASIO Act invoked. 

14	In relation to the second question (and associated ground), the procedural fairness question, the primary judge found that no proper question of law was raised for the purposes of s 44 of the AAT Act.  The appellant’s arguments in relation to the second question were “in effect, an attempt to seek merits review of the contents of the statutory scheme” (Judgment at [72]).  His Honour also found (Judgment at [73]) that, in any event, nothing the Tribunal did was: 
... shown to have denied to the applicant any procedural fairness to which he was entitled, having regard to the attenuation of the Tribunal’s capacity to afford such fairness … 

15	His Honour’s reference to “attenuation” appears to be a reference to the Tribunal’s statutory power to proceed on the basis of evidence and submissions not made available to the appellant by reason of the procedures in s 39A of the AAT Act.  His Honour concluded his consideration of the procedural fairness ground in the following terms (Judgment at [73]): 
I accept that, unconstrained by the statutory regime, the applicant would have had every entitlement to feel that he had not been dealt with fairly, but I am unable to see how he has not been dealt with fairly according to law within the very limited context in which the statutory regime allows any fairness to him. 

THE NOTICE OF APPEAL
16	The notice of appeal contains eight grounds in the following terms:
1.	The Court below erred [by] failing to find that the decision of the Director General (and the Tribunal) was attended with legal error in that it substituted ‘people smuggling activities’ or ‘serious people smuggling activities’ for the definition of security contained in the Act, namely ‘a serious threat to Australia’s territorial and border integrity’.

2.	The Court below erred (at RFD [53]) by accepting that the appropriate question for resolution by the Tribunal and the Director General was whether there was there was [sic] a “compelling” foundation for a conclusion that the applicant would be likely to engage in organised people smuggling, and failed to address whether the Tribunal (or the Director General) had addressed the question of whether the particular people smuggling, as it found would likely to occur in the future, would pose a ‘serious threat to Australia’s territorial and border integrity’. 

3.	The Court below erred (at RFD [60]) by finding that a mere reference to the number of people and period of time over which people were alleged to have been smuggled was a basis upon which the Tribunal (and Director General) could equate involvement in ‘people smuggling’ to a ‘serious threat to Australia’s territorial and border integrity’. 

4.	The Court below erred by failing to apply the reasoning in Jaffarie 313 ALR at 615-616 [83]-[84], of Flick and Perram JJ, namely that it is incorrect to equate people smuggling activity with a ‘serious threat to Australia’s territorial and border integrity’. 

5.	The Court below erred in holding that the Tribunal did not err in its consideration of section 4(aa) of the ASIO Act by holding that people smuggling or organised people smuggling posed a serious threat to Australia’s territorial and border integrity and thereby only addressed the question of whether the appellant was or would be engaged in people smuggling activities and not whether he would pose ‘a serious threat to Australia’s territorial and border integrity’. 

6.	The Court below erred (at [57]) by accepting that the Tribunal’s finding at [52] of its reasons (set out at [35] of the reasons) “that a number of the immigrants who had arrived irregularly without identification documents had been found by ASIO, after undertaking security checks, to pose a threat to security” (where that finding was made about irregular arrivals generally and had no apparent connection to the applicant’s alleged activities); meant that it was open to the Director General to find that any involvement in ‘people smuggling’ represented a ‘serious threat to Australia’s territorial and border integrity’.

7.	The Court below erred (at RFD [55]) by only addressing the terms of s 14(1)(a) and (b) of the Passports Act and by not addressing the statutory question involved in s 37 of the ASIO Act, read together with the definition of ‘security’ in s 4 (aa) of that definition contained in the ASIO Act which is the true subject matter of any appeal to the Tribunal under s 54 of the ASIO Act.

8.	The Court below erred in holding that the Tribunal did not err by denying the Applicant procedural fairness by the Tribunal. 

17	The first seven grounds appear to relate to the primary judge’s findings in relation to the question of law that related to paragraph (aa) of the definition of “security” in s 4 of the ASIO Act.  Ground 8 of the notice of appeal relates to his Honour’s findings in relation to the procedural fairness ground.  
18	It must be said that the grounds of appeal lack clarity and, in the case of ground 8, appropriate particularity.  The Director-General of Security and the Minister submit that the grounds of appeal variously misstate relevant statutory definitions and tests, mischaracterise the primary judge’s reasons for judgment and, in the case of ground 8, lack even the most basic particulars.  
19	There is some merit in those complaints.  Ground 1, for example, appears to misstate the s 4(aa) ASIO Act definition of “security”.  The reference to [53] of the Judgment in ground 2 appears either to be an incorrect reference, or to misstate the substance of that paragraph.  Much the same could be said about ground 3 insofar as it refers to [60] of the Judgment.  A number of the other grounds of appeal appear also to be, at best, somewhat opaque or unclear.  
20	Ground 8 of the notice of appeal is effectively devoid of any meaningful particulars.  It does not specify, by reference to the Judgment or otherwise, how it is alleged that the primary judge erred in his findings in relation to procedural fairness.  It does not address the primary judge’s finding that there was no question of law properly raised in relation to procedural fairness.  Nor does it specify whether the alleged error by his Honour related to the procedure that was adopted under s 39A of the AAT Act, or related to the three particular ways in which the appellant contended that he had been denied procedural fairness.  
21	Rule 36.01(2)(c) of the Federal Court Rules requires that a notice of appeal state “briefly but specifically, the grounds relied on in support of the appeal”.  It is at least doubtful that the grounds in the present notice of appeal satisfy that requirement.  It is, however, unnecessary for the purposes of this application, to reach any final view on that issue.  It should be noted, however, that, at two previous directions hearings, the opacity and lack of particularity of the notice of appeal has been raised with the appellant through his counsel.  An opportunity to amend the notice of appeal was provided.  It was not taken up. 
22	In his submissions in opposition to the security for costs application, the appellant’s counsel submitted that grounds 1 to 7 of the notice of appeal all relate to the contention that the Tribunal erroneously construed the definition of “security” in s 4 of the ASIO Act.  In substance, the appellant’s main contention is that the Tribunal, and the primary judge, in rejecting the appellant’s challenge to the Tribunal’s decision, erroneously substituted findings or suspicions that the appellant was involved in people smuggling for findings in relation to the protection of Australia’s territorial and border integrity from serious threats, as required by paragraph (aa) of the definition of “security” in s 4 of the ASIO Act.  
23	In relation to procedural fairness, it was submitted, again in broad terms, that the essence of the appellant’s case on appeal was that the procedure at the Tribunal hearing was fundamentally unfair because the Tribunal’s decision was made on the basis of material he was unable to see and hear.  Even though s 39A of the AAT Act provided that the Tribunal could proceed in the way it did, there was nonetheless, in the appellant’s submission, “residual issues of procedural fairness”.  Exactly what those residual issues were is somewhat unclear.  
24	It should also be observed that that submission appears to bear little relationship to the alleged denial of procedural fairness that formed the basis of the question of law that was before the primary judge.  
SECURITY FOR COSTS – RELEVANT PRINCIPLES  
25	The Court’s jurisdiction to hear an appeal from a judgment of the Court constituted by a single judge exercising the original jurisdiction of the Court is conferred by s 24 of the FCA Act.  An appeal to the Court under s 44 of the AAT Act, whilst called an appeal, is in fact in the original, not the appellate, jurisdiction of the Court.  
26	Under s 56 of the FCA Act, the Court or a judge has the power to order an appellant in such an appeal to give security for the payment of costs that may be awarded against him or her of such amount and in such manner and form as the Court or judge directs.  
27	Rule 36.09 of the Federal Court Rules contains rules relevant to an application for security for costs of an appeal.  Rule 36.11 of the Federal Court Rules provides, in effect, that such an application can be heard by a single judge.  
28	The principles that apply in relation to security for costs applications are well known and do not need to be rehearsed in these reasons.  It is well accepted that whether or not an order ought to be made is a matter for the discretion of the Court or judge.  The discretion is a broad one.  But for the requirement to act judicially, the discretion is effectively unlimited or unconfined.  The various considerations that may bear upon the making of an order have been considered in numerous authorities.  It is not necessary or particularly useful to summarise or list all the various possible considerations here.  Rather, the considerations that are important, having regard to the particular facts and circumstances of this matter, will be addressed later in these reasons in the context of the resolution of the opposing submissions of the parties.  
EVIDENCE ADDUCED ON THE APPLICATION 
29	In support of the application, the Director-General of Security and the Minister rely on the affidavit of Mr Matthew Varley.  That affidavit and the annexures to it establish the following facts: 
(1)	Since obtaining Australian citizenship in September 2006, the appellant has primarily resided in Sri Lanka.  He has not returned to Australia since 2012.  He did not return to Australia for the Tribunal proceedings or the proceedings before the primary judge.
(2)	In sworn evidence before the Tribunal, the appellant’s explanation for the fact that he resided in Sri Lanka was that he looked after his ageing mother and supervised valuable properties in Sri Lanka from which he derived regular income.  He claimed that he owned a number of properties worth $800,000. 
(3)	The costs of the first and second respondents in respect of the proceedings before the primary judge were $56,261.71.  The primary judge ordered the appellant to pay the costs of the first and second respondents.  There is no evidence one way or another as to whether any steps have been taken to tax or enforce the costs order.  
(4)	The solicitor for the first and second respondents estimates that their costs in defending the appeal in this matter are likely to be approximately $41,000, comprising solicitors’ costs of $13,500 and counsels’ costs of $27,500.  Senior and junior counsel have apparently been, or will be, retained to appear on the appeal.  
30	Presumably on the basis of the costs estimate given by Mr Varley, the security for costs order sought by the first and second respondents is in the sum of $35,000.  
31	The appellant opposes the application for security for costs.  He relies on an affidavit affirmed by a gentleman who identifies himself as being an accountant in Sri Lanka.  In that affidavit, the deponent asserts that the appellant’s mother owns assets in Sri Lanka valued at $48,000 and that the appellant owns a property valued at $40,000.  He also asserts that the statement of the appellant which was tendered in the Tribunal proceedings contained a typographical error.  The total value of the properties was, according to the deponent, $80,000 not $800,000 as stated in the appellant’s statement.  
32	The affidavit evidence of the accountant is, to say the least, unsatisfactory and not deserving of any significant weight.  The accountant does not say whose accountant he is, or was, or record his qualifications or experience, or provide even the most basic explanation of the basis of the property valuations.  Nor does he annex any documentation evidencing or corroborating the valuations, or explain the basis of his assertion that the appellant’s statement contained a typographical error.  
33	It should also be noted, in the context of the assertion of typographical error, that in the Tribunal proceedings, the appellant, who gave sworn evidence by telephone, affirmed the truth and correctness of his statement.  Further whilst the appellant, in his oral evidence, added something that he forgot to mention in his statement, he did not at any stage suggest that the statement contained any typographical error in relation to either the value of his assets or the ownership of them.  
34	For those reasons, very little weight is given to the accountant’s affidavit.  In any event, as will be explained later in these reasons, ultimately not much turns on this evidence.  It does not significantly advance the appellant’s case in opposition to the security application.
SHOULD SECURITY FOR COSTS BE ORDERED?
35	This is an appropriate matter for an order for security for costs.  The important considerations that lead to the conclusion that the Court should exercise its discretion in favour of ordering security for costs are as follows.  
36	First, the appellant is ordinarily a resident of Sri Lanka, not Australia.  Despite obtaining Australian citizenship in September 2006, he has not regularly resided in Australia.  He has not been in Australia since some time in 2012.  The fact that a party is not ordinarily resident in the jurisdiction is a relevant consideration in ordering security for costs.  In some cases, this consideration can be a matter of “great weight”:  Logue v Hansen Technologies Ltd (2003) 125 FCR 590 (Logue v Hansen Technologies) at [38]; P S Chellaram & Co Ltd v China Ocean Shipping Co (1991) 102 ALR 321 at [323].
37	That said, this consideration is not determinative.  Nor do the Director-General of Security or the Minister submit that it is.  The appellant submits that this consideration should not be given great weight in this matter because the actions of the respondents have effectively required him to remain in Sri Lanka.  If he returns, the appellant submits that he will be effectively imprisoned in Australia because, without a passport, he will not be able to return to Sri Lanka.
38	Some weight should be given to the difficult circumstances that the appellant finds himself in given the cancellation of his passport.  As the primary judge observed (Judgment at [3]): 
The two decisions create substantive limitations on the ability of the applicant to enjoy ordinary and important aspects of his Australian citizenship.

39	Nevertheless, the fact remains that the appellant has not been ordinarily resident in Australia for many years, including well before the decision to cancel his passport.  This fact weighs in favour of exercising the discretion.  
40	Second, there is no evidence that the appellant has any assets in Australia.  Whilst the appellant has led evidence of his assets in Sri Lanka, he has adduced no evidence that he has any assets in Australia.  This is relevant to the exercise of the discretion because the absence of any assets in Australia will make it difficult for the respondents to enforce any costs order made in their favour.  
41	Third, the appellant has assets and income in Sri Lanka that would enable him to provide security and prosecute this appeal.  It cannot be concluded that the appellant is impecunious.  Nor can it be concluded that the effect of an order requiring him to provide security would be oppressive because it would prevent him from prosecuting his appeal.  
42	There is a dispute about the value of the appellant’s assets in Sri Lanka.  In the Tribunal proceedings, the appellant said on oath, by adopting his statement, that he had assets worth $800,000 and earned regular income from those assets.  He now relies on an affidavit from his accountant that suggests that his evidence in the Tribunal was the product of a typographical error.  He claims that his assets are in fact valued at only $40,000, and that his mother owns assets to the value of $48,000.  For the reasons already given, little weight is to be given to that evidence.  
43	Nevertheless, even if the appellant only had direct access to assets of $40,000, that provides another reason to order that he provide security.  There is no suggestion in his evidence that his assets cannot be utilised in some way to ensure that any order for security can be complied with.  There is no suggestion that the assets owned by him in Sri Lanka are encumbered in any way, or cannot be used as security or collateral to ensure that any order for security for costs can be complied with.  
44	The appellant contends that the fact that the appellant’s property is overseas is an irrelevant consideration because any adverse costs order against him could be enforced in Sri Lanka under the Foreign Judgments Act 1991 (Cth).  He relies on the judgment of Morling J in Barton v Minister for Foreign Affairs (1984) 2 FCR 463 (Barton) at 468-470.  
45	The appellant’s submissions, based on the Foreign Judgments Act and Barton are rejected.  It is a relevant consideration that any costs order could be enforced under the Foreign Judgments Act, and some weight should be, and is, given to that consideration.  That does not, however, mean that it is irrelevant that all of the appellant’s property is in Sri Lanka.  Under O 28, r 3 of the previous Federal Court Rules, the predecessor to the current r 36.09 of the Federal Court Rules, it was held that merely showing, without more, that the relevant party was ordinarily resident in a country under which a judgment could be enforced under the Foreign Judgments Act was insufficient to meet the prima facie case that a party ordinarily resident outside Australia should provide security:  Farmitalia Carlo Erba SrL v Delta West Pty Ltd (1994) 28 IPR 336 at 342;  Logue v Hansen Technologies at [40]; Tan Kah Hock v AWAP SGT 26 Investment Ltd [2008] FCA 540 at [25].  
46	For essentially the same reasons, the fact that an adverse costs order against the appellant could be enforced in Sri Lanka under the Foreign Judgments Act, without more, does not mean that it is irrelevant that the appellant resides overseas and that all of his assets are overseas.  The procedure for enforcing a costs order under the Foreign Judgments Act would no doubt be relatively time-consuming and costly, at least as compared to enforcing an adverse costs order in respect of which security for costs has been provided.  
47	Fourth, the fact that these proceedings are an appeal is a relevant consideration.  In Tait v Bindal People [2002] FCA 322, Spender J pointed out that there was a difference in principle in relation to the ordering of security for costs in a first instance matter and the ordering of security for costs at the appellate level.  His Honour explained (at [3] and [4]): 
… The difference is that, at the [appellate] level, there has already been a determination adverse to the person against whom security for costs is sought and, if it be shown that there is a substantial risk that even if successful the respondent to the application for leave to appeal, or to an appeal, will be deprived of his costs, such an outcome would clearly be unjust.  

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.  …

48	It is in this respect, and this respect alone, that some weight may also be given to the fact that the first and second respondents have already incurred costs in the order of $50,000 at the first instance level.  
49	Fifth, in the particular circumstances of this appeal it is not appropriate to give any weight, or any considerable weight, one way or another, to the prospects of success of the appeal.  It is, in effect, a neutral consideration.  It is not possible to form any real view as to the prospects of success without giving detailed consideration to the Tribunal’s decision, as well as the judgment of the primary judge.  The Tribunal’s decision is not before the Court for the purposes of this application.  In the particular circumstances of this matter, detailed consideration of the reasons of the Tribunal and the reasons of the primary judge would not be appropriate.  
50	That said, the opacity and lack of particularity on the notice of appeal, as referred to earlier in these reasons, is of some concern.  It certainly cannot be said, at least on the basis of the grounds of appeal as currently articulated, that the appellant has good, let alone overwhelming, prospects of success.  
51	Sixth, some weight should be given to the difficult situation that the appellant was placed in before the Tribunal, and the difficult position he now finds himself in.  The appellant was not, and will not, be given access to the adverse security assessment that formed the basis of the decision to cancel his passport.  That is, it must be said, a somewhat exceptional, if not extraordinary, circumstance.  In that sense, at least arguably, the appeal concerns an issue of some public importance.  
52	Nevertheless, the procedures under s 39A of the AAT Act have been the subject of appellant scrutiny before: Hussain v Minister for Foreign Affairs (2008) 169 FCR 241.  Likewise, the construction of paragraph (aa) of the definition of “security” in s 4 of the ASIO Act has been considered by the Full Court:  see Jaffarie v Director-General of Security (2014) 226 FCR 505.  Both of those decisions were referred to by the primary judge.  Whilst the issues to be ventilated on appeal are no doubt of some considerable importance to the appellant, it is difficult to see how they are of any particular broad public importance, beyond the appellant’s own interests: cf Devenish v Jewel Food Stores Pty Ltd (1990) 94 ALR 664 at 666; 64 ALJR 533 at 534, cited in Merribee Pastoral Industries Pty Limited v Australia and New Zealand Banking Group Limited (1998) 193 CLR 502 at [26].  
53	In any event, the fact that the appeal raises, at least arguably, some matters of public importance does not outweigh the considerations, to which reference has already been made, that militate towards the making of an order for security for costs.  
54	Seventh, contrary to the appellant’s submissions, the security for costs application has been brought by the first and second respondents without any undue delay.  
55	Having regard to each of those seven considerations, on balance the interests of justice favour granting the application and ordering the appellant to provide some security for costs.  
WHAT ORDER SHOULD BE MADE?
56	The interlocutory application seeks only an order that the appellant provide security for costs in the sum of $35,000.  The type of security required, or that would be acceptable to the respondents, is not specified.  The figure of $35,000 is based on Mr Varley’s estimate of the likely costs of the appeal proceedings for the first and second respondents.  The appellant did not object to or challenge Mr Varley’s estimate.  Nor did he submit that the amount estimated by Mr Varley or the amount of the security for costs order was excessive.  
57	Nevertheless, there are some difficulties with Mr Varley’s evidence.  First, Mr Varley’s experience and qualifications to express his opinion or give an estimate are unclear and not specified.  Second, the basis for his estimates are fairly unclear and certainly lack specificity and particularity.  In particular, the estimate of $27,500 in respect of counsels’ fees appears at first blush to be excessive, given that the matter is listed for one day only.  The basis of this estimate, and how it is made up, or arrived at, is not made clear.  
58	Doing the best that can be done given the very limited evidence, it would appear that an order of security for costs in the sum of $30,000 would be appropriate.  
59	The next problem is that the proposed orders do not state what would constitute acceptable security.  
60	In all the circumstances, it would be appropriate to indicate that the appropriate security in the sum of $30,000 should be paid into Court by bank cheque or that an unconditional bank guarantee be provided by or on behalf of the appellant from an Australian-owned bank, as recognised by the Australian Prudential Regulation Authority, in a form acceptable to the New South Wales District Registrar, to be held by the Registrar until further order.  
61	The orders of the Court will be:  
1.	Within 28 days of the date of these orders the appellant give security for the first and second respondents’ costs of the appeal in the sum of $30,000 by:
(a)	paying the money into Court; or
(b)	providing to the New South Wales District Registrar of this Court (the Registrar) an unconditional bank guarantee from an Australian-owned bank (as recognised by the Australian Prudential Regulation Authority) in a form acceptable to the Registrar.
2.	The appeal be stayed until the security is given in accordance with the terms of Order 1.
3.	In the event that the security is not provided in accordance with Order 1, the hearing date be vacated and the appeal be stayed.
4.	The appellant pay the first and second respondents’ costs of and incidental to its interlocutory application.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.	

Associate:

Dated:	4 February 2016