Alikhani and Minister for Immigration and Multicultural and Indig Enous Affairs
[2004] AATA 147
•13 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 147
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/283
GENERAL ADMINISTRATIVE DIVISION ) Re ABDOLKARIM ALIKHANI Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr M Allen, Member Date13 February 2004
PlacePerth
Decision The decision of the Tribunal is that:
(a) the Tribunal has jurisdiction to review the decision of 20 May 2003 but has no jurisdiction to review the decision of 7 October 2003;
(b) the decision of 20 May 2003 is set aside and in substitution therefor the Tribunal grants the applicant access to the tape recording of the interview held on 31 December 2000.
.............(Sgd. Mr M Allen)...................
Member
CATCHWORDS
FREEDOM OF INFORMATION – decision to refuse access to tape recording of interview relying on various grounds of exemption – later decision to grant access to tape recording in accordance with the request – tape recording not a complete record of the interview it purported to record – claim that entire recording had not been given to the applicant – Tribunal has jurisdiction to review the original decision to refuse access but no jurisdiction to review the subsequent decision to grant access – original decision set aside.
Administrative Appeals Tribunal Act 1975, ss 26, 37
Freedom of Information Act 1882, ss 14, 54, 55, 56, 61
Re Kalman and Department of Veterans’ Affairs (1992) AAT No. 8332
REASONS FOR DECISION
13 February 2004 Mr M Allen, Member 1. In December 2000 the applicant arrived in Australia as an unauthorised arrival. On 31 December 2000 he was interviewed by officers of the respondent’s Department, at which time a documentary record was made of the interview and the interview was tape-recorded – although, as will appear below, the tape-recording was not of the complete interview.
2. In July 2001, the applicant made an application under the Freedom of Information Act 1982 (“the Act”) for access to documents that were described in the request as “interview upon arrival”.. That request was sent to the Department by an immigration consultant who was then acting for the applicant under cover of a letter dated 18 July 2001 (T4). That letter stated, in part, “Please find attached Form 424, requesting for (sic) a copy of interview tape/document with DIMA upon arrival of the above applicant in Australia.” The Department, by letter dated 7 August 2001 (T6), informed the applicant that the documents that were relevant to his request were folio numbers 1-15 of a particular departmental file and that a decision had been made to release those folios in full. The folios so released included Exhibit R1, which is the documentary record of the interview of 31 December 2000. On 8 May 2003 the applicant made a further request under the Act seeking access to documents described as “all tapes for interview held on 31/12/00 at Curtin IRPC, Derby, WA” (T7).
3. By letter dated 20 May 2003 (T8) the Department informed the applicant that the documents that are relevant to the request are an audio tape contained within a certain departmental box file and that a decision had been made that the audio tape was exempt from release under ss 37(2)(b), 40(1)(a) and 40(1)(d) of the Act. These sections relate to documents that could reasonably be expected to disclose methods or procedures regarding contraventions of the law; prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits; or would have a substantial adverse effect on the proper and efficient conduct of an agency. That letter contained information about the rights of review of that decision available to Mr Alikhani.
4. By letter dated 16 June 2003 the applicant referred to that decision and why he was dissatisfied with it, and requested “a follow-up to the original request”.. I consider that letter to be a request for reconsideration of the decision of 20 May 2003.
5. The applicant received no reply to that letter and filed an application for review of the decision with the Tribunal on 28 July 2003.
6. The matter proceeded towards a hearing in the Tribunal on the basis of the claims for exemption specified above. When the matter came on for hearing on 14 October 2003 Mr Alikhani represented himself with the assistance of an interpreter in the Farsi language, appearing by video link from a detention centre. The respondent was represented by Mr Carey, an officer of the Australian Government Solicitor. The documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) were received in evidence (T1 – T9) as well as exhibit R1.
7. I was informed at the hearing that on 7 October 2003 a letter had been sent to Mr Alikhani informing him that a decision had been made to grant him access to the tape in question, by providing him with a copy of the tape. I was also informed that on 8 October 2003 the respondent’s solicitors had informed the applicant by facsimile that the original tape, and hence the copy that had been made of it, contained a gap in the recording of the interview. In other words, the tape recording was not a complete record of the interview that had been conducted. The applicant had received the copy of the tape on the day prior to the hearing date.
8. The applicant gave oral evidence at the hearing, as did a departmental officer, Ms Dharshi Kugathasan.
Consideration
9. Because the nature of the dispute between the parties changed fundamentally shortly before the hearing, when the respondent decided to grant access to the tape, I raised at the hearing the question of whether the Tribunal had jurisdiction to hear and determine the matter. I invited the parties to make written submissions on the point and the respondent did so. I consider the jurisdictional question first.
10. The decision made on 20 May 2003 was a decision to refuse to grant access to a document for the purposes of s 54(1)(a) of the Act. That decision was not made by the responsible Minister or the principal officer of the agency and it was therefore open to the applicant to request a review of the decision. The applicant did so within the time specified in s 54(1A)(a).
11. Having applied under s 54 for a review of the decision and a period of 30 days having elapsed without the applicant being informed of the result of the review, he was entitled to make an application to the Tribunal for a review of the decision of 20 May 2003; s 55(3). In other words, no question of lack of jurisdiction arose up to that point.
12. However, the decision that was made on 7 October 2003 to grant access to the tape raises the question of whether there was an alteration of the decision of 20 May 2003 for the purposes of s 26 of the AAT Act. Pursuant to s 26(1) of the AAT Act a decision that is before the Tribunal for review may not be altered (other than by the Tribunal on the review) unless the enactment that authorised the making of the application expressly permits the decision to be altered, or the parties to the proceeding and the Tribunal consent to the alteration. It is apparent that the decision made to alter the original decision was a unilateral one made by officers of the Department and no consent of the applicant or the Tribunal was sought.
13. Section 56(5) of the Act provides that where an application is before the Tribunal in respect of a failure by an agency to make a decision on a request and a decision is made (other than a decision to grant access in accordance with a request) then the Tribunal may treat the application as extending to a review of the new decision. That subsection is not, however, relevant to the present case because it is limited to applications to the Tribunal made by virtue of s56, not by virtue of s55. Even if the present application were made by virtue of s56, subsection 56(5) would not permit the Tribunal to review the second decision in this case because that decision was “to grant, without deferment, access to the document in accordance with the request” for the purposes of s56(5)(a) and is, therefore, excluded from review.
14. I should refer at this point to s14 of the Act, which relevantly states that the Act is not “intended to prevent or discourage … agencies from … giving access to documents (including exempt documents), otherwise than as required by this Act, where they can properly do so or are required by law to do so.” It would seem that the access granted by the October 2003 decision was a disclosure made other than as required by the Act. Section 14 is not, in my opinion, a provision that “expressly permits” a decision about access to be altered for the purposes of s 26 of the AAT Act and does not alter the jurisdictional position.
15. The jurisdictional issue can be looked at in an alternative way. Section 55(1) of the Act sets out the types of decisions in respect of which an application can be made to the Tribunal for review. In the present case the only two applicable provisions are s55(1)(aa) and s55(1)(ab), which specify the following two types of decisions.
“(aa)a decision granting access to a document but not granting, in accordance with a request, access to all documents to which the request relates; or
(ab)a decision purporting to grant, in accordance with a request, access to all documents to which the request relates, but not actually granting that access”.
16. In relation to s55(1)(aa), it was decided in Re Kalman and Department of Veterans Affairs (1992) AAT No 8332 per Deputy President Forgie that the Tribunal had no power to review a decision to grant access in full to all documents as requested despite a claim that there were documents meeting the terms of the request to which access had not been granted. At the time of the Kalman decision what is now s55(1)(aa) appeared in parenthesis in the then s55(1)(a). That does not, in my opinion, alter the applicability of the decision.
17. Section 55(1)(ab) has been inserted into the Act since the Kalman decision. In the present case, there has been (as in Kalman) a clear decision to grant access to the tape held by the Department. If (which the respondent denies) the access that has been granted is inadequate in terms of the access decision, then s55(1(ab) would apply, the jurisdictional fact being the respondent’s conduct in not actually granting the access to a document (or the entire document) which it had decided to grant. Such conduct is amenable to internal review by reason of s54(1)(ba) and, in accordance with s55(2), the applicant is required to apply for internal review before making an application to the Tribunal under s55(1). There having been no request made for internal review of the decision purporting to grant access but not actually granting that access, the Tribunal would have no jurisdiction to review that decision (or, more accurately, conduct) of the respondent.
18. My conclusion from the above analysis is that the Tribunal retains its jurisdiction to review the original decision of 20 May 2003 to refuse access to the tape recording but has not jurisdiction to review the subsequent decision to grant access.
19. In relation to the 20 May 2003 decision, in view of the events that occurred subsequently it seems that the respondent did not maintain the view that grounds for exemption existed or that, if they did, the tape recording could nevertheless be properly released. The onus that s61 of the Act imposes on the respondent to establish that the decision was justified or that the Tribunal should give a decision that is adverse to the applicant has not been discharged. In my opinion the decision of 20 May 2003 should be set aside and that, in substitution therefor, a new decision should be made granting the applicant access to the tape recording of the interview conducted on 31 December 2000. I appreciate that such a decision will not provide the applicant with any greater access than he has already obtained.
20. Although I have determined that the Tribunal has no jurisdiction to review the decision made in October 2003 purporting to grant access pursuant to s55(1)(ab) of the Act, because the case was argued on the assumption that there was jurisdiction I consider it appropriate, and perhaps helpful to the parties, that I make some comments about the merits of the matter.
21. Ms Kugathasan is a legal officer in the Migration and Temporary Entry Litigation Section of the Department. She gave evidence that she had obtained the original tape recording from the Department’s central office after establishing its whereabouts from the Perth office. She had listened to the tape (which is a 60-minute tape recorded on both sides) and realised that a gap existed at the end of Side A. The obvious explanation was that the tape had not been turned over when the end of Side A was reached. By comparing the tape with the documentary record she believed that several questions and answers had not been recorded. She had made enquiries of the Perth office as to whether or not there was any other, or any other more complete, recording of the interview and had been told that there was not. She had arranged the copying of the tape and had listened to the copy to ensure that it was a complete copy of the original. Although the quality of the original tape was not perfect she could hear all the questions and answers. She could not be entirely sure how long the gap in the recording was.
22. Ms Kugathasan was unable to give evidence about the procedures used by the interviewer in terms of managing the tape recording process. There was nothing recorded on the tape or the documentary record of the interview that identified the start and finish times of the interview – and so it was not possible to calculate the length of the interview and, hence, the length of the gap. There was nothing on the original tape to indicate that it was in fact the original – in particular there were no signatures on the tape or other indication of authenticity. There was nothing to indicate that the tape recording (or a copy thereof) had or had not been sent to a language expert for analysis as often occurs. The original tape had been supplied to her in a box containing a number of other tapes of interviews with other people.
23. The applicant’s evidence was that he was very disappointed when he listened to the copy tape because he believed the gap in the tape was for a considerable period of time. He had experienced a similar break in a tape recording of another interview that he had undergone and suspects the gap was the result of deliberate action by department officers rather than due to inadvertence.
24. It is clear that the applicant has been granted access to the tape recording that is in the Department’s possession and which purports to be a recording of the interview of 31 December 2000 as requested by the applicant. It is also clear that the recording is an incomplete record of that interview. The Department considers that it has granted access to all the documents covered by the request even though the record is incomplete. In terms of s55(1)(ab) there would only be a failure to actually grant the access purportedly granted if the Department in fact had another, more complete, version of the recording.
25. In that context I note that s55(5A) of the Act enables the Tribunal, in a s55(1)(ab) situation, to require the agency to conduct further searches for the document in question. Had the Tribunal had jurisdiction to review the access that has actually been given to the applicant under the October 2003 decision I would, on the information presently available to me, have been inclined to require the Department to conduct further searches to establish whether there is any other recording of the interview. This would involve enquires of the officer who conducted the interview about such things as the number of copies made at the time of interview or thereafter and how the recording was stored after the interview. Departmental records would also need to be examined to establish with some certainty (if that is possible) how the recording was handled and stored, and what records exist of any movements of the tape and who had access to it, including whether it was referred to a language expert. There can be no certainty, of course, that such enquiries would reveal the existence of any other or better recording of the interview of provide greater details of the handling of the tape than is presently available.
26. My decision in this matter is that:
(a) the Tribunal has jurisdiction to review the decision of 20 May 2003 but has no jurisdiction to review the decision of 7 October 2003;
(b) the decision of 20 May 2003 is set aside and in substitution therefor the Tribunal grants the applicant access to the tape recording of the interview held on 31 December 2000 that has already been supplied to him.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Allen, Member
Signed: ...........Ms R Morgan...........................................
AssociateDate/s of Hearing 14 October 2003
Date of Decision 13 February 2004
Counsel for the Applicant Self represented
Solicitor for the Applicant
Counsel for the Respondent Tim Carey
Solicitor for the Respondent
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