Barot and Secretary, Department of Home Affairs (Freedom of information)
[2025] ARTA 1798
•16 September 2025
Barot and Secretary, Department of Home Affairs (Freedom of information) [2025] ARTA 1798 (16 September 2025)
Applicant/s: Barot
Respondent: Secretary, Department of Home Affairs
Tribunal Number: 2024/8550
Tribunal:Senior Member Lye
Place:Brisbane
Date:16 September 2025
Decision:The Tribunal sets aside that part of the decision under review which found that the Respondent satisfied s 24A of the Freedom of Information Act 2024 (Cth) in respect of category 3 of the Applicant’s freedom of information request. The Tribunal remits that part of the decision to the Respondent for reconsideration in accordance with these reasons.
The Tribunal otherwise affirms the decision under review.
…………………[SGD]…………………..
Senior Member J Lye
Catchwords – Freedom of Information — Whether all reasonable steps taken to find
Documents — whether an agency could produce a written document
containing the information in discrete form — Whether a computer
program ordinarily available – scope of request – consultation – FOI Guidelines – the model litigant obligation
Legislation
Administrative Review Tribunal Act 2024 (Cth) – s 9, s 56, s 58, s 58A, 85, s 105
Freedom of Information Act 1982 (Cth) – s 11, s 17, s 24A, s 54D, s 54L, s 55K, s 61, s 66, s 93A
Cases
Attorney-General (Cth) v Patrick [2024] FCAFC 126
Chu v Telstra Corporation Limited [2005] FCA 1730
Collection Point Pty Ltd v Commissioner of Taxation [2013] FCAFC 67
De Tarle and Australian Securities and Investments Commission (Freedom of information) [2015] AATA 770
Kohli v Minister for Immigration and Border Protection [2018] FCA 540
Patrick v Attorney-General (Cth) [2024] FCA 268
Re Becker and Minister for Immigration and Ethnic Affairs (1977) 15 ALR 696
Re Bienstein and Attorney-General (Cth) (2008) 103 ALD 626
Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Langer and Telstra Corporation Ltd (2002) 68 ALD 762
Sullivan v Department of Transport (1978) 20 ALR 323
Secondary Materials
Administrative Review Tribunal (Common Procedures) Practice Direction 2024
Legal Services Directions (Cth) – Appendix B
OAIC Freedom of Information Guidance for Government Agencies
Statement of Reasons
INTRODUCTION
On 4 July 2021, Mr Barot lodged a freedom of information request with the Secretary, Department of Home Affairs (the Respondent). In simple terms, Mr Barot wanted to know why the Department of Home Affairs (the Department) was taking too long to process 887 visa applications for 489 visa holders (the visa applications).[1]
[1] A subclass 489 visa is a temporary skilled regional (provisional) visa for skilled workers who want to live and work in regional Australia. A subclass 887 skilled regional visa is a permanent visa. The holding of a 489 visa is one of a number of core eligibility requirements for an 887 visa.
Four years later, Mr Barot is not satisfied with the Respondent’s responses to parts of his FOI request. He applied to the Tribunal seeking review of his FOI request. Specifically, he wants the Tribunal to decide whether the Respondent:
a. is required to use a computer to create a document which reports the processing times for the visa applications from the start of the category to the date of his FOI request[2] (category 1); and
b. has taken all reasonable steps to locate documents within category 3 of his FOI request.[3]
[2] Freedom of Information Act (1982) (Cth) (the FOI Act), s 17.
[3] FOI Act, s 24A.
For the reasons which follow, the answer to each these questions is, ‘no’.
BACKGROUND
The decision which is the subject of this proceeding is the decision of the delegate of the Australian Information Commissioner (AIC) dated 11 October 2024 (AOE v Department of Home Affairs MR21/01416) (the AIC decision).[4]
[4] Hearing Book Tab 1.
The AIC decision reviewed and made findings on a deemed access refusal decision of the Respondent (the internal review decision). The internal review decision concerned Mr Barot’s FOI request which was lodged on 4 July 2021 (the FOI request). The FOI request originally sought disclosure of documents relating to 4 categories of information, namely:
CATEGORY DESCRIPTION 1
Processing time for 887 visa applications for 489 visa holders6 from start of the 489 visa category to 2021
2
Any direction by the Home Affairs Minister to prioritise other visa applications or to slow the processing of the 887 visa applications
3
Any internal communication, formal mail, message, memo, meeting notes outlining the allocation of resources/ reduction of resources to increase/decrease the processing time for 887 visa applications
4
Number of complaints received by the Department and or the Home Affairs Minister regarding the processing time of the 887 visa applications and any action taken by the Department and / or the Home Affairs Minister
On 27 September 2021, the Respondent’s delegate made the initial decision[5] on the FOI request. The Respondent disclosed 1 document to Mr Barot and otherwise refused his request under ss 17[6] and 24A[7] of the FOI Act.
[5] Hearing Book Tab 3.
[6] Category 1 of the FOI request.
[7] Categories 1, 2 and 3 of the FOI request.
On 16 October 2021, Mr Barot sought internal review of the initial decision.[8] The Respondent failed to make the internal review decision within the required statutory timeframe.[9]
[8] Hearing Book Tab 4.
[9] FOI Act, s 54D.
Then, on 26 November 2021, the internal review delegate purported to make an out of time decision on the internal review (the internal review decision).[10] The internal review decision affirmed the initial decision and contended that the internal review was limited to categories 1 and 3 of the FOI request.
[10] The Respondent acknowledges this decision was made out of time and so technically it was treated by the AIC as a submission. For the purpose of these reasons I refer to it as the ‘internal review decision’.
On 11 December 2021, Mr Barot applied to the AIC seeking external review of the internal review decision.[11] The AIC review took almost 3 years to complete.
[11] FOI Act, s 54L.
The AIC treated Mr Barot’s application as an application for review of categories 1, 2 and 3 of the FOI request.[12]
[12] Hearing Book Tab 1.
The AIC decision dated 11 October 2024 varied the internal review decision.[13] The AIC delegate relevantly found in respect of the s 17 issue:
[13] Ibid.
The Department advised the primary reason the agency is unable to produce a document containing all the information relevant to the request, ‘by the ‘ordinary’ use of its
computer systems, is because the details of the current visa held by subclass 887
applicants are not captured in the reporting system. The Department would therefore be
required to undertake the steps discussed above at [20], including writing individual
report SQL codes to provide a document.In the present circumstances, based on information provided in both the Department’s
purported reasons for decisions and information provided during the IC review, I accept
that the Department’s existing reporting products could not operate to independently
collate or retrieve stored information and to produce the requested document, because
the required tasks extend beyond a simple or routine database query task and would
require the Department to write a new code to generate the document.I also note the Department’s advice that while the Department’s website gives processing
times for s 887 visas, it is not possible to report on only those visa applicants who
currently hold s 489 visas, as requested by the applicant, as the details of the current visa
held by subclass 887 applicants are not captured by the Department for reporting purposes.For these reasons, I accept that the production of a document containing the information
sought by the applicant could not be produced by the use of a computer ‘ordinarily
available’ to the Department within the meaning of s 17(1)(c)(i) of the FOI Act.The AIC delegate also relevantly found in respect of the s 24A issue:
The Department provided the OAIC with details of the searches undertaken in relation to
the original request, and the internal review request, and the outcome of those searches.
I have considered these records, which indicate that the Skilled and Migration Program
Section and Ministerial and Parliamentary Branch areas undertook searches for relevant
documents.I have also considered the records of the above searches, which identify:
• the date searches were undertaken
• the persons and business areas who undertook the searches
• the locations searched, including TRIM, Outlook/ Enterprise vault, Network Drives and the Parliamentary Document Management System
• the search terms used, including ‘887’ and ‘processing times’, including the application of relevant date ranges, and
• the outcomes of the searches undertaken, which demonstrate that no further documents relevant to the request can be found or are held in a discrete form.
Based on this information, the AIC delegate was satisfied that ‘the Department has taken all reasonable steps’ to identify documents and that no further documents relevant to the applicant’s request exist or can be found in accordance with s 24A of the FOI Act.’[14]
[14] Hearing Book Tab 1.
On 25 October 2024, Mr Barot applied to the Tribunal seeking review of the AIC decision. In his application, he stated, “I do not believe that the dept of home affairs has made sincere efforts to search for the information that I was seeking in my initial FOI request and subsequent reviews and appeals I made since 2021.”[15]
[15] Ibid.
The scope of the dispute before the Tribunal
At the final hearing of Mr Barot’s application, the parties could not agree which categories of the FOI request remained in contention. The Respondent had addressed categories 1, 2 and 3 in her Statement of Facts, Issues and Contentions (SFIC) but then submitted that the Tribunal only had jurisdiction to consider categories 1 and 3. Mr Barot initially contended that category 2 remained in dispute but then appeared to resile from that submission. The Tribunal adopted a practical approach and called Mr Barot to give evidence under oath on the second day of the hearing. He confirmed under oath that he did not wish to press category 2 of the FOI request.
Consequently, these reasons only address categories 1 and 3 of the FOI request.
The model litigant issue
Mr Barot represented himself in these proceedings. The final hearing had originally been listed for 1 day in June 2025 (the June hearing date). The Respondent had previously been directed to file its SFIC and all evidence by 24 February 2025.
The Respondent filed and served her SFIC on the due date. However, no evidence was filed. Then, just 1 week prior to the June hearing date, the Respondent, without leave of the Tribunal, or notice to Mr Barot, purported to file an affidavit and foreshadowed by email to the Tribunal and Mr Barot that another affidavit would be filed the following week, just 3 days prior to the June hearing date. In response, the Tribunal listed an urgent directions hearing (the June directions hearing) and after hearing from the parties, the final hearing was vacated and new directions were issued to the parties, with a new listing date (for 2 days) and provision for further evidence to be filed.
The Tribunal by its objectives, strives to provide an independent mechanism of review which is fair and just and which promotes public confidence in its processes.[16] The Tribunal is required to observe the requirements of procedural fairness in its decision making and it also expects parties to observe their statutory obligations under s 56 of the Administrative Review Tribunal Act 2024 (Cth) (the Tribunal Act) to assist the Tribunal in its objectives.[17] The late filing of evidence by the Respondent, without notice, risked denying the Applicant procedural fairness.[18] Late adjournment of listed hearings also indirectly and adversely impacts other litigants waiting to have their proceedings heard and determined by the Tribunal.
[16] Administrative Review Tribunal Act 2024 (Cth) (the Tribunal Act) s 9(a) and (e).
[17] The Tribunal Act, s 56(1).
[18] Kohli v Minister for Immigration and Border Protection [2018] FCA 540 [10]-[26] per Flick J with reference to Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J.
This conduct is not consistent with an agency’s statutory obligation under s 56 of the Tribunal Act. It also does not comply with the Tribunal’s directions in the Tribunal (Common Procedures) Practice Direction 2024.[19]
[19] Tribunal (Common Procedures) Practice Direction 2024, clauses 4.29 to 4.31.
In the conduct of these proceedings, most Commonwealth agencies are also bound by the Legal Services Directions 2017 (Cth) (the Directions). Commonwealth agencies and their legal representatives have particular obligations where an applicant is not legally represented but are obliged at all times to ensure the agency acts as a model litigant.[20]
[20] The Legal Services Directions 2017 (Cth), Appendix B.
The Tribunal brought its concerns about the relevant conduct to the attention of the Respondent’s legal representative at the June directions hearing.
The Tribunal’s power to undertake review of the review decision
The AIC decision was made subject to s 55K of the FOI Act. That decision was to vary the Respondent’s deemed access review decision.
The Tribunal’s task is to undertake a review on the merits of the AIC decision.[21] Section 61(1)(b) of the FOI Act provides that in this proceeding, the Respondent bears the onus of establishing that the decision is justified or that the Tribunal should give a decision adverse to Mr Barot.
[21] FOI Act, s 57A.
In undertaking that review, the Tribunal is not bound by the views of the Respondent.[22] Sections 58 and 58A of the FOI Act relevantly provide:
58 Powers of Tribunal
(1) Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.
(2) Where, in proceedings under this Act, it is established that a document is an exempt document, the Tribunal does not have power to decide that access to the document, so far as it contains exempt matter, is to be granted.
(6) The powers of the Tribunal under this section extend to matters relating to charges payable under this Act in relation to a request.
[22] Re Becker and Minister for Immigration and Ethnic Affairs (1977) 15 ALR 696, page 699 per Brennan J.
58A Powers of Tribunal—requiring further searches
(1)This section applies to a review on an application to the Tribunal under section 57A if:
(a)access to the document is refused under section 24A (document cannot be found etc.); or
(b)access is purportedly given to the document (amongst others to which the request relates), but is not actually given.
(2)For the purposes of the review, the Tribunal may require the agency or Minister concerned to conduct further searches for the document.
The application was constituted to me shortly before the June hearing date and so there was no earlier no opportunity to consider whether further searches for documents should be undertaken prior to the final hearing.
Relevant legislative provisions and authorities
The final hearing concerned the operation of 2 sections of the FOI Act – s 17 (in respect of category 1) and s 24A (in respect of categories 1 and 3).
Section 11 of the FOI Act provides that every person has a legally enforceable right to obtain access to documents of an agency, in accordance with the Act. That right is subject to a number of exceptions/bases for refusal of an FOI request, including ss 17(2) and 24A, which are in issue in this case:
Section 17 of the FOI Act provides for circumstances where a person requests access to a document which does not exist in written form at the time of the request but may be able to be produced by the agency using technical tools (such as computer).
17 Requests involving use of computers etc.
(1) Where:
(a) a request (including a request in relation to which a practical refusal reason exists) is made in accordance with the requirements of subsection 15(2) to an agency;
(b) it appears from the request that the desire of the applicant is for information that is not available in discrete form in written documents of the agency; and
(ba)it does not appear from the request that the applicant wishes to be provided with a computer tape or computer disk on which the information is recorded; and
(c) the agency could produce a written document containing the information in discrete form by:
(i) the use of a computer or other equipment that is ordinarily available to the agency for retrieving or collating stored information; or
(ii) the making of a transcript from a sound recording held in the agency;
the agency shall deal with the request as if it were a request for access to a written document so produced and containing that information and, for that purpose, this Act applies as if the agency had such a document in its possession.
(2) An agency is not required to comply with subsection (1) if compliance would substantially and unreasonably divert the resources of the agency from its other operations.
Important questions arise as to the meaning of terms such as ‘computer’ and ‘ordinarily available’ in s 17(1)(c)(i). These have been answered by the leading authority on s 17 of the FOI Act, Collection Point Pty Ltd v Commissioner of Taxation [2013] FCAFC 67 (Collection Point). There, Besanko, Bromberg and Dodds-Streeton JJ (the Full Court of the Federal Court of Australia, the Full Court) examined the scope of the operation of s 17(1)(c)(i) and rejected the suggestion that it was only concerned with the question of whether the necessary computer hardware was available to the responding agency for the task required. In Collection Point, the applicants had argued that s 17(1)(c)(i) should be strictly interpreted and that the question of whether a new computer program would be required to produce the requested document was a matter which should be left to the exception in s 17(2). The Court disagreed and found:[23]
In our opinion, the computer referred to in s 17(1)(c)(i) is not merely computer hardware. Rather, it means a functioning computer system including software, that can produce the requested document without the aid of additional components which are not themselves ordinarily available.
Section 17(1)(c)(i) is directed at ensuring that an agency will not be obliged to produce a document unless the effective and comprehensive means of doing so are ordinarily available to it for the specified purpose. In that context, the computer or other equipment ordinarily available for the specified purpose must be capable of functioning independently to collate or retrieve stored information and to produce the requested document.
….It follows that in our opinion, the need for a new computer program to enable the computer ordinarily available to the agency for retrieving or collating stored material to produce the requested document is a fact capable of meaning that the agency cannot, by the use of a computer ordinarily available, produce the requested document.
[23] [43]-[44], [52].
As to the meaning of the term ‘ordinarily available’, the Court observed:[24]
In our view, however, while an “ordinarily available” computer or “other equipment” is not limited to that currently in the agency’s possession, it does not include that which is or may become available to the agency for the specified purpose only outside the ordinary course of its operations. Whether an item is ordinarily available will depend upon the facts of the particular case, which may include whether access to it would involve a departure from the agency’s ordinary or usual conduct and operations.
[24] Collection Point [48].
Section 24A of the FOI Act provides for circumstances where an agency cannot find documents which meet the terms of an applicant’s FOI request.
24A Requests may be refused if documents cannot be found, do not exist or have not been received
Document lost or non‑existent
(1) An agency or Minister may refuse a request for access to a document if:
(a) all reasonable steps have been taken to find the document; and
(b) the agency or Minister is satisfied that the document:
(i) is in the agency’s or Minister’s possession but cannot be found; or
(ii) does not exist.
[emphasis added]
The leading authority on the statutory test in s 24A of the FOI Act is Chu v Telstra Corporation Limited [2005] FCA 1730 (Chu).[25] The wording of s 24A remains unchanged since Finn J found in Chu that the then Administrative Appeals Tribunal (AAT) had erred in its application of s 24A of the FOI Act. He observed:[26]
As I indicated above, the Tribunal appears to have adopted views expressed in earlier Tribunal decisions relating to the requirements of s 24A. From its reasons it appears also to have accepted that the steps required to be taken generally “do not have to be exhaustive”. What the Tribunal did not do is ask itself what the section in express terms required of it. This was not that “reasonable steps must have been taken” – to use the language of an earlier Tribunal decision relied upon. Rather it was that “all reasonable steps” be taken. As is apparent from the tenor of the Senate Report, the difference between the two formulations is fundamentally important. The Committee added the emphatic word “all” to the proposal put to, and accepted by, it in the submission it expressly accepted.
It is understandable, where the decision as to the taking of all reasonable steps is left to agency or Minister concerned (subject to Tribunal review), why this more stringent requirement has been imposed. A person requesting access to a document that has been in that agency’s or Minister’s possession should only be able to be denied on the s 24A ground when the agency (or the Minister) is properly satisfied that it has done all that could reasonably be required of it to find the document in question. Taking the steps necessary to do this may in some circumstances require the agency or Minister to confront and overcome inadequacies in its investigative processes. Section 24A is not meant to be a refuge for the disordered or disorganised.
The Tribunal’s failure to appreciate the significance of “all” has, in my view, led it to adopt a tempered and erroneous view of what is required to be done for s 24A purposes.
[emphasis added]
[25] More recently cited with approval in Patrick v Attorney-General (Cth) [2024] FCA 268 where Charlesworth J observed at [26] that s 24A should be applied by reference to facts and circumstances existing at the time that a decision on the request is made. The primary judgment in Patrick was appealed but that appeal was dismissed Attorney-General (Cth) v Patrick [2024] FCAFC 126 and the Full Court’s consideration of s 24A in Patrick is not directly relevant to the circumstances of this case.
[26] [34]-[36].
Implicit within his Honour’s reasoning in Chu, is the requirement that an agency correctly diagnose the scope of the request to which it is required to respond. It is only by doing so that the agency can then proceed to its next task of working out what searches it will undertake to demonstrate ‘that it has done all that could reasonably be required of it to find the document in question’.
The Federal Court more recently observed in Patrick v Attorney-General (Cth) [2024] FCA 268 at [88] per Charlesworth J that “the search must be genuine, in the sense that it is anticipated that something may be found in the places that are searched and that no basis exists to search another place.”
The question of what is ‘reasonable’ for the purpose of taking ‘all reasonable steps’ in s 24A was also considered by the AAT in De Tarle and Australian Securities and Investments Commission (Freedom of information) [2015] AATA 770, where the Tribunal helpfully reviewed 3 significant decisions which had previously considered the meaning of the term ‘reasonable’ in the context of s 24A of the FOI Act.[27] To summarise these:
a. In Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138 (Cristovao), Deputy President MacDonald observed that the Oxford Dictionary’s meaning of the term ‘reasonable’ most appropriately applied means ‘not going beyond the limit assigned by reason; not extravagant or excessive’;[28]
b. In Re Langer and Telstra Corporation Ltd (2002) 68 ALD 762 (Langer), Deputy President Forgie found that,
the first limb of s 24A requires that the department take such steps to discover the requested documents as are appropriate in the circumstances. The circumstances that are relevant in determining the steps that are appropriate include the subject matter of the documents sought, the file management systems, any destruction schedules followed in Telstra and the steps that have already been taken to locate documents within the terms of the request;[29]
c. In Re Bienstein and Attorney-General (Cth) (2008) 103 ALD 626 (Bienstein) Deputy President Forgie endorsed her earlier reasoning in Langer and further observed that,
whether all reasonable steps have been taken will be assessed having regard to such matters as the nature of the documents sought in the request, whether documents of that sort are usually filed in a certain category or categories and whether documents of that sort would normally be referred to a certain division, branch or section or to more than one in an agency for action. Steps that are comprehensive and that are directed to locating documents in those places will be relevant. Where documents are proving elusive, discussions with persons who would be likely to have dealt with the subject matter at the relevant time may be relevant. It may be that those people are no longer in the relevant area of the agency or of the minister’s office but contacting them may lead to an insight into where the documents could have got to. The size of the agency or of the minister’s office may also be relevant as may evidence of any practices regarding the retention of documents or, in the case of a ministerial office, the transfer of documents to the relevant department. Finally, there may be cases in which an examination of documents already found may reveal further areas in which relevant documents may be located. These are some of the matters that may be relevant in deciding whether a minister or agency has taken all reasonable steps to find a document within the meaning of s 24A(a) of the FOI Act.[30]
[27] [19]-[21].
[28] Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138 [19].
[29] Re Langer and Telstra Corporation Ltd (2002) 68 ALD 762 [94]-[95].
[30] Re Bienstein and Attorney-General (Cth) (2008) 103 ALD 626, [48].
The Tribunal’s decision in Bienstein is particularly significant because that proceeding was heard and determined by the Deputy after the publication of the Federal Court’s judgment in Chu.
It is worth observing that none of these authorities suggest that the word ‘reasonable’ in the context of s 24A is meant to suggest that less than all the relevant pathways or search areas should not be considered or investigated. Nor do they suggest that the correct test in s 24A is whether ‘reasonable searches’ have been undertaken or that this term is somehow equivalent to the term ‘all reasonable steps’.
The FOI Guidelines
The FOI Guidelines are produced by the Office of the Australian Information Commissioner - OAIC Freedom of Information Guidance for Government Agencies (the FOI Guidelines).[31] Agencies such as the Department are required to have regard to the FOI Guidelines when performing a function or exercising a power under the FOI Act.[32] However they do not have the status of a legislative instrument.[33]
[31] FOI Act, s 93A.
[32] FOI Act, s 93A(2).
[33] FOI Act, s 93A(3).
In this proceeding, the Tribunal may have regard to the FOI Guidelines but is not bound to follow them should it consider there are cogent reasons not to do so.[34]
[34] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645 per Brennan J.
This observation is relevant in respect of the FOI Guidelines’ treatment of s 24A of the FOI Act. The FOI Guidelines specify that ‘all reasonable steps’ must be taken and then goes on to state:
The Act is silent on what constitutes ‘all reasonable steps’. The meaning of ‘reasonable’ in the context of s 24A(1)(a) has been construed as not going beyond the limit assigned by reason, not extravagant or excessive, moderate and of such an amount, size or number as is judged to be appropriate or suitable to the circumstances or purpose.
Then, in the next paragraph the FOI Guidelines introduces the term ‘reasonable search’ in an attempt to explain the word ‘reasonable’ in s 24A and states:
Agencies and ministers should undertake a reasonable search on a flexible and common sense interpretation of the terms of the request. What constitutes a reasonable search will depend on the circumstances of each request and will be influenced by the normal business practices in the agency’s operating environment or the minister’s office. At a minimum, an agency or minister should take comprehensive steps to locate documents, having regard to:
·the subject matter of the documents
·the current and past file management systems and the practice of destruction or removal of documents
·the record management systems in place
·the individuals within an agency or minister’s office who may be able to assist with the location of documents, and
·the age of the documents.
[emphasis added]
I do not suggest that the FOI Guidelines refer to the incorrect statutory test for s 24A of the FOI Act. However, as will be seen later in these reasons, the use of the term ‘reasonable search’ in the FOI Guidelines is apt to confuse. That term does not appear anywhere in s 24A.
In reaching my decision on Mr Barot’s FOI request, I have been guided in my consideration of s 24A of the FOI Act by the words in the statutory test and the binding authority in Chu. I have also had regard to the guidance provided by the AAT in Cristovao, Langer and Bienstein.
SUMMARY OF EVIDENCE
At the final hearing, the Tribunal received into evidence a hearing book which included the following affidavit evidence:
a. 2 affidavits of Deana Darrant (Executive Level 2 Director)[35] affirmed on 13 June 2025 (first Darrant affidavit) and 7 July 2025 (second Darrant affidavit) respectively;
b. Affidavit of Bharat Nichani (Executive Level 1, Assistant Director) affirmed 12 June 2025 (Nichani affidavit);[36] and
c. Affidavit of Emily Brooks (Executive Level 2 (EL2), Director)[37] affirmed on 2 July 2025 (Brooks affidavit).
[35] Immigration Reporting Section, Immigration, Operations and Performance Branch, Citizenship, Humanitarian Family Visa Programs & Support Division of the Department.
[36] Industry Skill & Innovation Program Management Section, Skilled Visa Branch of the Department.
[37] Freedom of Information Reviews Team (FOI team).
All 3 witnesses were cross examined.
As I have already mentioned, Mr Barot also gave oral evidence at the final hearing. He was cross examined by the legal representative for the Respondent.
Ms Darrant’s evidence
Ms Darrant has worked for the Department in her current position since 2020. She is currently working substantively at EL2 level.
Ms Darrant was precise, open and confident in her evidence. She presented as a forthright and honest witness and her evidence was of a technical nature and thus of assistance to the Tribunal. It was not diminished by cross examination.
Ms Darrant told the Tribunal her team is responsible for the Immigration Operations reporting team responsible for data support including the calculation of processing times for the migration and temporary visa programs.[38] She explained that the Department had and currently has the technical capability to report on 887 visa processing times but not on 887 visas for the pathway where the applicants previously held a 489 visa. The reason for this, she explained, was that this level of detail is not currently captured in the Department’s reporting systems.[39] To do so, she said would require multiple new technical programs to be written, interrogated, validated and checked.[40]
[38] First Darrant affidavit [6].
[39] Second Darrant affidavit [4].
[40] Ibid [5].
Ms Darrant told the Tribunal that she had been asked to respond to questions from the AIC about whether and how the Department might be able to respond to category 1 of the FOI request. She explained that she had consulted DEAC (the Department’s Data and Economic Analysis Centre) and ascertained in technical terms that DEAC would need to develop an ‘enhancement’ to its existing processing times reporting tool[41] to produce the document sought by Mr Barot.
[41] The visa processing times tool.
Ms Darrant told the Tribunal that this enhancement would physically require a house software development project to be established – to design, develop and write new code and to test data produced which would need to be linked so it could be obtained from multiple departmental systems. She explained this work would need to be undertaken in two stages, first to identify the cohort of visa holders and extract relevant cases so that data could be refined. Once the relevant data was identified and checked, an algorithm would need to be applied to calculate the processing times.[42]
[42] Second Darrant affidavit [7]-[8].
Ms Darrant told the Tribunal that such a project would constitute a departure from the Department’s usual operations and would require new/additional funding.[43]
[43] Ibid [9]-[10].
In answer to a question from the Tribunal, Ms Darrant explained that her reporting lines were to an Assistant Secretary to a First Assistant Secretary (FAS) and from there to two Deputy Secretaries who reported to the Secretary of the Department. She told the Tribunal that senior staff (from FAS upward) were most likely to deal directly with the Minister’s office and staff and it was her observation that the most senior staff of the department were required to meet regularly with the Minister and his staff.
Mr Nichani’s evidence
Mr Nichani’s current job title is Assistant Director Independent Skills & Innovation Program Management Section, Skilled Visas Branch.[44] Mr Nichani has worked for the Department for 11 years. He is currently a substantive EL1 officer and at the time of the FOI request was acting at that level. Mr Nichani also presented as an open and honest witness.
[44] Mr Nichani’s job title has recently changed following a restructure.
Mr Nichani told the Tribunal about his role in the response to Mr Barot’s FOI request and on internal review.
Mr Nichani told the Tribunal that in response to the FOI request he undertook a ‘coordination role’.[45] He said his role was to seek advice from subject matter experts from the subclass 887 visa program and from the processing times reporting area for categories 1 and 3 of the request.[46] He conceded he did not personally frame any search terms or identify documents relevant to the FOI request but instead contacted people who he thought at that time were best placed to assess what was required and who he would usually contact and then relied on the subject matter experts in those areas to identify relevant documents.
[45] Nichani affidavit [9].
[46] Nichani affidavit [5], [10]. Mr Nichani’s evidence was that he reached out to the processing times reporting area for category 1 and the program management area for category 3. Mr Nichani thought from memory that Skilled Business Support might have been consulted by the program management area on the initial request but were not engaged by him to look for documents.
Similarly, at internal review stage, Mr Nichani told the Tribunal he largely performed a coordination role.[47] He said his queries at this stage were responsive to particular requests from the FOI reviews team (the FOI team) in 2 stages which he then forwarded to the areas he consulted – Program Management, Skilled Business Support[48] and the Regional Mobility Policy Section (which he suggested should be consulted). He could not recall if he contacted any other areas to these at internal review stage. He set out for the Tribunal in his affidavit the enquiries he made of each area.[49] He conceded that in making his enquiries, he did not necessarily personally reflect on the scope of category 3 of the FOI request but instead referred the queries he received from the FOI team to the identified program or management areas. [50] Mr Nichani described this as carrying out their instructions by relaying their requests to the areas.
[47] Nichani affidavit [9].
[48] Nichani affidavit [4] and [10] and exhibit BN2.This team was consulted both on the initial request and at internal review.
[49] Nichani affidavit [12]-[14].
[50] Ibid [7]-[10] and exhibit BN2.
Mr Nichani told the Tribunal that in respect of category 3 only, the program delivery and program management areas were responsible for 887 visas and both were consulted and further, he was told that their searches were conducted using TRIM, Outlook/Enterprise vault and network drives and the search terms were ‘887’ and ‘processing times’ and that date ranges were applied (although he did not say what they were).[51]
[51] Nichani affidavit [13], exhibit BN4.
Following receipt of results from the relevant areas, Mr Nichani told the Tribunal he recorded a NIL response for documents in category 3. He also recorded for the Tribunal in his affidavit, his response to the FOI team reporting about the nil returns reported by each area.[52]
[52] Ibid [16]-[18] and exhibits BN6 and BN7.
While giving oral evidence, Mr Nichani conceded and I accept:
a. when the original request was managed he had only been in his position for 6 months. He was not qualified at the time to interpret the scope/terms of the FOI request. He could not recall there being any discussion with the areas at this time about the scope of category 3;
b. the areas would have interpreted search terms for themselves as they would have been best placed to interpret and isolate the terms for each category;
c. while the FOI team had asked him on internal review to advise if he considered material may be held by ‘another area of the Department’, he had not recall that he specifically addressed this request. Instead, his recollection was that he relied on the areas to identify any additional areas, aside from his suggestion that the policy area be consulted.[53]
d. Mr Nichani could not say whether the areas had themselves considered whether any other areas of the Department should be consulted.
e. consequently, he did not really give thought to what category 3 of the FOI request meant. He just referred the requests to the program management areas and relied on and reported about the various responses from the areas, and trusted the areas would guide him to any relevant documents;
f. he could not recall if the areas provided any evidence of their searches or search parameters to him at the initial stage;
g. when asked at internal review stage whether any other parts of the Department might have documents, he consulted the policy team but no other area;
h. at internal review the areas confirmed what searches they had undertaken because he was asked by the FOI team to report on these; and
i. he carried out his instructions from the FOI team on the FOI request and the internal review. He did not personally turn his mind on either occasion to whether all reasonable steps had been taken in respect of the searches undertaken by the areas he consulted.
[53] Nichani affidavit, BN2, records that the areas thought the policy areas were unlikely to have documents but suggested that Regional Mobility Policy be consulted.
In answer to a question from the Tribunal, Mr Nichani explained that he reports to a director and then via an almost identical chain of command to Ms Darrant. He told the Tribunal he was not specifically aware of meetings between more senior APS and the Minister but was then able to identify specific requests as coming to his area. He said he did not personally have any direct involvement with the Minister’s Office.
Ms Brooks’ evidence
Ms Brooks is a substantive EL2 Officer. She has worked for the Department since 2007 and has held the position of Director, Freedom of Information Reviews Team in the Department since 2023. Ms Brooks clarified that she started in her present position after the dates of the FOI request and the internal review. Consequently, Ms Brooks’ knowledge of the FOI request was entirely based on her review of the Department’s file for the FOI request and she did not suggest otherwise.[54]
[54] Brooks affidavit [6].
While Ms Brooks’ affidavit was primarily directed at particular matters which I have recorded below, she told the Tribunal she did look at the whole FOI file for the request. I would observe the documents to which she referred were also before the Tribunal.
Ms Brooks’ evidence included her opinions about various matters. Ms Brooks is not an independent witness and is not a qualified expert but I accept that given her role, she has familiarity with the way FOI requests are usually processed by the Department since 2023 and so has offered some observations about these practices and the FOI request. I have had regard to this evidence as I would any layperson’s observations about their work team or workplace. In saying this, I am not suggesting that Ms Brooks attempted to hold herself out as an expert. Her answers to questions were open and forthright.
Ms Brooks spoke about the processes which in her experience as the Director ‘normally happen’ when the FOI team responds to an FOI request:[55]
In relation to whether SES officers were targeted by the searches, the Department's FOI Section’s standard procedure in conducting searches is to send a call-out for document searches to the FOI Coordinator for the respective Division of the Department, who is typically the Executive Officer for the Division who works for the relevant SES officers who is in charge. Depending on the scope of the request multiple Divisions may be contacted. The FOI Coordinator will then direct the searches to be undertaken by the responsible business area within the Division, which may be at Branch or Section level. Decisions about whether specific officers (including SES officers) or teams should conduct searches would be made by the
responsible business area based on the record-keeping practices that exist for documents that would fall within the scope of the request. Ordinarily there would not be a request made to an SES officer in their individual capacity to undertake searches unless they were specifically named in the request.[55] Ibid [19].
Ms Brooks told the Tribunal that while this provided ‘context’ of ‘what would happen in a normal case’, she thought it very similar to what happened in this case, which is to say the FOI team approached a particular area rather than any particular SES officer. Ms Brooks conceded however that these observations were more a description of what the Department normally does.
Ms Brooks also told the Tribunal that in her experience, when an FOI request ‘comes in’ it is read according to what her team thinks are spirit and context of the words. She acknowledged that sometimes it is necessary to ask for more context. I inferred from this evidence that Ms Brooks was not attempting to describe what had occurred in Mr Barot’s case but was assisting the Tribunal to understand how things were ‘normally done’ by her team.
Ms Brooks had stated in her affidavit that from her review of the Department’s files on the FOI request, she thought the records showed ‘reasonable searches’ had been undertaken by the relevant business areas.[56] In oral evidence, she pointed by way of example to a particular email from the Acting Assistant Director, Skilled and Migration Program which stated:[57]
I can confirm that I have not been able to locate any documents “outlining the allocation of resources/ reduction of resources to increase/decrease the processing time to 887 visa application.”
As you may be aware, the 887 visa is part of the global caseload management model, and we do not specifically allocate resources to a single visa product, rather they work across a number of visa products. However in response to the question asked, Program Management still has a Nil response.Please let me know if you require anything further.[56] Brooks affidavit [20].
[57] Hearing Book page 399
Ms Brooks also referred the Tribunal to another email from the same officer to Mr Nichani[58] which provided some suggested wording about the visa processes. Ms Brooks said she personally thought this email provided a lot of detail which she thought explained why the officer thought no additional documents could be found.
[58] Hearing Book page 1115.
I note in passing that the documents Ms Brooks had reviewed included a series of emails[59] recording consideration was given to consultation with the Minister’s office but only in respect of category 4 of the FOI request (complaints). The documents record that given the Department’s Ministerial Services Section (MSS) had copies of all formal correspondence this proposal was not progressed. The internal review decision separately records that enquiries were made of MSS at internal review stage for formal Ministerial correspondence and submissions in respect of category 3 of Mr Barot’s request.[60] The records of this enquiry do not appear to be in evidence before the Tribunal.
[59] Partially recorded at Hearing Book, Tabs 11-27. Brooks affidavit [20] which refers to ST documents pages 43-116.
[60] Hearing Book Tab 15, page 71. Hearing Book Tab 6.
When asked by the Tribunal to explain what she meant by the term ‘reasonable searches’, Ms Brooks advised that this term was taken from the FOI Guidelines and it was what she understood as the test under s 24A of the FOI Act:
“I think I'm just using the wording that we this from the guidelines in the FOI Act where they talk about we need to undertake reasonable searches. So I probably just fell into that, that terminology. That's that's where I'm getting that from.
So obviously in an FOI request, there's a, you know, a point where you need to show that you've searched, particularly when you can't find something you've you've done a reasonable level of searching, as in you've searched in the right places, you've got context around why you searched in. You know, certain systems or certain locations, that sort of thing.
So that's where in in the FOI space we talk about reasonable searches as you know, something we need to undertake to then be able to ascertain if we have documents or not and then obviously assess those documents before they're released.”
Ms Brooks’ evidence otherwise focussed on whether the Department had:[61]
(a) considered whether to transfer the FOI request to the Minister’s office in respect of category 4 of the FOI request; and
(b) identified/targeted senior executive service officers (SES officers) when searching for documents.
[61] Brooks affidavit [5].
As to the first issue, the Tribunal had asked the Respondent’s legal representative at the June directions hearing whether transfer of any part of the FOI request to the Minister’s office had been considered.[62] That question was directed to categories 2 and 3 of the FOI request. Category 4 was not in issue before the Tribunal and so I do not propose to address this part of Ms Brooks’ evidence on the matter any further.
[62] FOI Act, s 16.
As to the second issue, Ms Brooks gave the answer to which I have referred at 65 above66 above
Mr Barot’s evidence
In addition to clarifying that category 2 was no longer pressed, Mr Barot was asked under oath to tell the Tribunal what he had understood categories 1 and 3 of the FOI request to mean at the time he lodged his FOI request.
My impression was that Mr Barot was open and honest in his evidence, but had to be reminded not to apply hindsight reasoning when describing the scope of his FOI request. That tendency is understandable given the time which has passed and the documents he has seen since lodging the FOI request in 2021.
In terms of category 1, Mr Barot’s evidence was straightforward. He said and I accept that he wanted documents reporting on processing times for the 887 visas for 489 visa holders up to 2021.
In terms of category 3, Mr Barot explained that he wanted records recording any direction for priorities re the visas. By this, he said and I accept that he had meant documents recording not only formal but also informal discussions as well as any internal communications recording instructions from the Minister:
“So I would say I, when I meant any internal communication, I was referring to from top level of the department, starting from the minister to to the people who actually work in the department.”
Evaluation of the s 17 issue
In respect of category 1, the uncontroverted evidence before the Tribunal from Ms Darrant was:
a. both at the time of the FOI request and currently, there was no document in existence in the Department’s possession which met the terms of Mr Barot’s request;
b. the Department would need to establish a software development project to design, build and implement a tool to create such a document;
c. this new tool would require code to be written, developed and tested; and
d. it would also require new/additional funding.
Ms Darrant’s evidence was comprehensive and compelling and I accept it as correct. I am satisfied, based on Ms Darrant’s evidence that for the purposes of ss 17(b) and s 24A of the FOI Act, the information sought by Mr Barot was not otherwise available in discrete form in written documents of the Department.
I am also satisfied, from Ms Darrant’s evidence that for the purposes s 17(1)(c) the Respondent was unable to produce via a computer program ‘ordinarily available’ to it a written document containing the information Mr Barot was seeking in discrete form. In reaching this conclusion, I am satisfied that the new tool Ms Darrant described falls within the reasoning adopted by the Full Court in Collection Point on the basis that a new and specially funded project would be required to develop the code needed to retrieve and collate data from multiple sources to produce the requested information. The relevant funding would be either new or additional to existing funding.
The consequence of this is that without that funded project, the Respondent cannot, by the use of a computer ordinarily available, produce the requested document.
Based on the available evidence, I am satisfied that the Respondent has demonstrated that the decision to refuse category 1 of the FOI request pursuant to s 17(1) of the FOI Act was justified.
Evaluation of the section 24A issue
The first matter I have considered in the context of s24A, is whether the scope of category 3 of the FOI request was correctly understood by the Respondent. This question is relevant to the test under s 24A of the FOI Act because the searches undertaken for documents would necessarily have been impacted by the Department’s understanding of the scope of category 3.
For the reasons which follow, I am not satisfied that scope of category 3 was correctly identified and applied by the Respondent when those searches were undertaken, either originally or on internal review.
First, the wording of category 3 itself seems to support a broader interpretation than was applied by the Department as evidenced by the records which are before the Tribunal. The words Mr Barot had used in category 3 are not qualified - Any internal communication, formal mail, message, memo, meeting notes outlining the allocation of resources/ reduction of resources to increase/decrease the processing time for 887 visa applications. The word ‘to’ is awkward but can be read as broad enough to cover documents which recorded how the Respondent’s resources had been and were allocated/proposed to be allocated to the processing of these visa applications where such allocation/proposed allocation would impact the processing time for the visa applications. The wording of category 3 also appears broad enough to include records of SES discussing proposed or actual allocations or communicated priorities which informed such allocations (if they existed).
The evidence before the Tribunal suggests that more senior SES officers outside Mr Nichani’s line of direct report may have engaged with the Minister or his office periodically. Mr Barot told the Tribunal he sought any records of both formal and informal communications including recording communications between the Minister and people in the Department.
The FOI team asked Mr Nichani to explain at internal review how he had identified the line area/s which might hold documents. Mr Nichani’s response[63] reveals that the searches he was coordinating were limited to 2 business lines and a further query to a policy area.
[63] Hearing Book Tab 32.
As I have noted, it seems the FOI team separately made enquiries with MSS for ‘formal correspondence and submissions’ relating to category 3 of the FOI request.[64] There is no evidence that other SES officers were consulted and according to Ms Brooks, it was not the usual practice to do so unless an officer was named in an FOI request.
[64] Hearing Book Tab 6.
I would pause here to note that in closing submissions, the Respondent complains that it did not understand why the Tribunal asked each of the Respondent’s witnesses at the hearing about their SES reporting lines and which SES would be expected to have direct communication with the Minister’s office.[65] The fact was that the Tribunal gave notice of this issue to the Respondent at the June directions hearing where I asked whether searches had been undertaken of SES records. The Respondent then took the opportunity to lead evidence from Ms Brooks about this issue in her affidavit.[66]
[65] Respondent’s closing submissions [17]-[20].
[66] Brooks affidavit [5(b)], [19].
Next, the Respondent submits but I cannot accept that the nil response to category 3 was appropriate because the Department does not allocate resources to the processing of subclass 887 visa applications and therefore there will be no documents regarding the allocation, or reduction, of resources. I cannot accept that submission as correct having had regard to the Respondent’s own records which were in evidence.
There are at least three documents which were before the Tribunal and exhibited to Mr Nichani’s affidavit which suggest there have been changes to the allocation of resources to the processing of these visa applications. The first is an email which explains that a decision was taken in late 2020 which led to a reduction in the number of staff processing 887 visa applications.[67] The second is an email further explaining that prior to November 2020 a dedicated team in Brisbane managed the processing of these visa applications.[68]
[67] Nichani affidavit, exhibit BN11.
[68] Nichani affidavit, exhibit BN12.
Records before the Tribunal show that at internal review, the FOI team specifically requested of Mr Nichani that the business lines consider documents relating to the late 2020 decision. Mr Nichani advised the FOI team there was a nil response to this request for the following reason:[69]
The ‘1.0 FTE’ advice provided previously was not in the context of increasing/reducing processing times but more about the general management of the 887 caseload. Discussions are never held for the purposes of increasing/decreasing processing times. As such, that particular email didn’t fall into the scope of the question asked and also on that basis there is no document that comes under scope for the question asked.
[69] Hearing Book Tab 24, pages 1000-1002.
That response was relayed by Mr Nichani to the FOI team. It does not appear to have been questioned or challenged by the FOI team. There was no other evidence given to the Tribunal about the query or the response.
The third document suggests that during the COVID pandemic, another decision was made by the Department that resources for visa processing were to be redeployed to other priority areas.[70] There is no evidence to suggest searches were undertaken for documents relating to this decision. Once again, it is not clear how documents in that category would not be caught by category 3.
[70] Nichani affidavit, exhibit BN12.
My related concern in citing these examples is that category 3 was not expressed as being time limited. Despite this, Mr Nichani is recorded in the records as advising the FOI team on internal review that ‘relevant date ranges would have been applied to the search’.[71] Mr Nichani did not provide further detail about these date ranges and the ranges are not evident from the available records. Perhaps he meant that an end date of the date of the FOI request was applied? It is not clear from the evidence, but he uses the word ‘ranges’ in plural which suggests a beginning as well as an end date. There is no evidence that further clarification was sought by the FOI officer in response to his email about the time limits which were applied and why.
[71] Hearing Book Tab 32; Nichani affidavit, exhibit BN3.
Drawing these points together, I am not satisfied that the Respondent has correctly interpreted the scope of category 3:
a. it was not time limited;
b. it potentially included documents in the Department’s possession from changes which occurred in 2020; and
c. it included formal and informal communications which may have required searches to be undertaken outside the business areas which were searched and MSS.
I acknowledge a request in the terms I am describing could be very broad. The FOI Act provides a mechanism for such problems to be resolved, by consultation with an FOI applicant and where the scope cannot be adequately confined, by refusal of the request.[72] Had the scope of category 3 been fully explored, the Respondent might have consulted Mr Barot and refined his request.
[72] FOI Act, ss 24, 24AA and 24AB.
The next issue is a technical one and concerns the Respondent’s understanding of and compliance with the statutory test in s 24A of the FOI Act.
The correct statutory test under s 24A of the FOI Act is ‘all reasonable steps’. The terms ‘reasonable steps’ and ‘reasonable searches’ are not interchangeable with or substitutes for the term ‘all reasonable steps’. An agency may undertake ‘reasonable searches’ within certain parameters but those parameters may not be sufficient to demonstrate that ‘all reasonable steps’ have been taken. As the Federal Court emphasised in Chu, what must be demonstrated is evidence that all reasonable steps were taken such that the agency undertaking the searches ‘is properly satisfied that it has done all that could reasonably be required of it to find the document in question.’ [73]
[73] Chu [35].
The significance of Chu is the Federal Court’s finding that the AAT erred in affirming a decision where a lesser standard was applied. In Chu, Finn J found that, “The Tribunal’s failure to appreciate the significance of ‘all’ has, in my view, led it to adopt a tempered and erroneous view of what is required to be done for s 24A purposes.”[74]
[74] [36].
The Tribunal’s task is to independently review the decision made on the FOI request based on the evidence before it.[75] The evidence which is before the Tribunal suggests those responding to the FOI request within the Department may not have understood what was required to demonstrate compliance with s 24A. I say this because the terms ‘reasonable steps’ and ‘reasonable searches’ have been used by officers of the Department to support the decision to refuse category 3 of the FOI request under s 24A.[76]
[75] FOI Act, s 58(1).
[76] Hearing Book Tab 1 and Tab 3. The initial delegate’s decision refers to ‘reasonable searches’ as a basis for refusal under s 24A of the FOI Act while the AIC decision refers in the catchwords and the relevant sub-heading of the reasons for decision to ‘whether reasonable steps taken to find documents’ but then correctly refers within the text of the reasons to the test of ‘all reasonable steps’ being required.
I have already mentioned that Ms Brooks’ personal view, based on her review of the FOI file and her experience as the Director of the FOI team, was that ‘reasonable searches’ had been undertaken on Mr Barot’s FOI request.
Ms Brooks did not explain why she thought that ‘reasonable searches’ were undertaken in this case other than to say that the detail in 2 documents she had read on the file gave her some comfort about the searches undertaken.
I have some sympathy for Ms Brook’s use of the term ‘reasonable searches’ in her affidavit. The FOI Guidelines refer to ‘reasonable searches’ but do so as part of the analysis of the statutory test in s 24A. However, I acknowledge the wording used in the FOI Guidelines is unclear.
In the circumstances, I have not attached much if any weight to Ms Brooks’ opinions about documents on the FOI file:
a. she did not personally manage the response to the FOI request and did not make either the original or the internal review decision;
b. while she has experience in managing the FOI team which handled the FOI request, she was not working in the team and the relevant time;
c. she is not an independent expert;
d. her opinions are wholly derived from the documents she read on the FOI file and ultimately, the Tribunal can rely on the primary records to speak for themselves; and
e. the opinion Ms Brooks offered about the quality of the searches based on her review of the file did not reflect the correct statutory test.
For the reasons I have already given, I am also not satisfied that Mr Nichani’s evidence is sufficient to demonstrate that the Respondent has complied with s 24A. Mr Nichani did not manage the response to the FOI request. He was simply a ‘coordinator’ of the responses received from the business areas in response to queries raised by the FOI team.
The documents before the Tribunal suggest that at internal review, the authorised decision maker[77] (Mary) was the person who should have controlled/coordinated the searches being undertaken. She did not give evidence to the Tribunal. There is no record of any comprehensive plan prepared or used by her to manage the search process in evidence. However, her internal review decision records the following reasons:
[77] Hearing Book Tab page 87.
Additional searches for documents
I have asked the Department Skilled Visa Branch support section to undertake further checks for documents in regard to Point 1 and 3 of your request.
Outcomes of searches
In regard to point 3 of your request
• Any internal communication formal mail, message, memo, meeting notes outlining the allocation of resources/ reduction of resources to increase/decrease the processing time to 887 visa applicationThe business area have confirmed that after a second search they have not been able to locate any documents
I have not been able to locate any documents “outlining the allocation of resources/ reduction of resources to increase/decrease the processing time to 887 visa application.”
They confirmed that searches were made of
• The Departments electronic record keeping system Content Manager
• Departmental Network Drives
• Section and individual mail vaults
They also provided the following response:“The 887 visa is part of the global caseload management model, and we do not specifically allocate resources to a single visa product, rather they work across a number of visa products”
“The Department endeavours to finalise subclass 887 (Skilled Regional) visa applications within reasonable timeframes, subject to the Government’s priorities. As with all visas, average processing times for the subclass 887 (Skilled Regional) may vary depending on these priorities and available resources. Grant numbers continue to be impacted by these factors.”
Additionally I consulted the Departments Ministerial Correspondence team who were also unable to locate any documents falling within point 3 of the scope of your request after searching the Parliamentary Document Management System (PDMS) for any Ministerial Submissions or correspondence.
I infer from these reasons that Mary relied heavily on the email reports she received from Mr Nichani and MSS (for formal correspondence and submissions)[78] to form the view that ‘all reasonable steps’ had been taken to find documents within category 3 for the purposes of s 24A. For the reasons I have already given, I cannot be satisfied that those email reports from Mr Nichani provided a sufficient basis for Mary to be satisfied that all reasonable steps had been taken to find the category 3 documents.
[78] Hearing Book Tab page 83.
On external review, the AIC initially requested information from the Respondent on the s 24A issue such as records of searches and recorded consideration of where to search.[79] The AIC was referred to and considered the same records as were before both Mary (at internal review) and the Tribunal. It is clear from the AIC decision that it was aware of the changes to visa processing in 2020 which I have discussed earlier in these reasons.[80] Despite this, and as I have noted earlier in these reasons, the AIC summarised the various searches undertaken and found that it could be satisfied that ‘the Department has done all that could reasonably be required of it to find the documents in question’ observing:
With respect to part 3 of the request (internal correspondence regarding the allocation and/or reduction of resources surrounding the processing of 887 visas) staffing resources are not assigned to process specific visa types.[81]
[79] Hearing Book Tab 8. As required by FOI Guidelines [10.100].
[80] Hearing Book Tab 1
[81] Hearing Book Tab 1.
I cannot agree. From my review of the evidence, I cannot be confident that the Respondent had undertaken all relevant searches and I cannot agree that the above reasoning is relevant or correct.
In circumstances where the Respondent bears the onus of convincing the Tribunal, this means I cannot be satisfied that the Respondent’s decision to refuse category 3 of the FOI request under s 24A of the FOI Act was justified.
Disposition of the proceeding
The consequence of my findings is that:
a. The Tribunal is satisfied that the Respondent was justified in refusing to produce the information requested in category 1 of Mr Barot’s FOI request pursuant to s 17(1) of the FOI Act as it could not produce a written document containing the requested information by use of a computer ordinarily available to it within the meaning of s 17(1)(c) of the FOI Act; and
b. The Tribunal is not satisfied that the Respondent was entitled to refuse category 3 of Mr Barot’s FOI request on the basis that all reasonable steps have been taken to find the document for the purposes of s 24A(a) of the FOI Act.
This means Mr Barot has been partially successful on his application.
The Respondent submitted in respect of disposition of the application:[82]
The Respondent contends that there would be no utility in remitting the matter, as the Respondent does not undertake pathway reporting (Part 1), and there were no specifically allocated resources for the processing of subclass 887 visa applications, and hence no documents regarding the allocation, or reduction, of resources, in relation to the processing of 887 visa applications (Part 3). If the Tribunal considers that the correct or preferable decision is to remit the matter, the Respondent would be grateful for the Tribunal's guidance as to what further searches the Respondent could undertake to locate the documents, in light of the Respondent's remarks as to the (non) existence of the documents.
[82] Respondent’s closing submissions [28].
The Tribunal’s reasons explain the basis for the decision to set aside the decision as it relates to s 24A of the FOI Act. It is not the function of this Tribunal to act as an advisor to Respondent agencies.[83] For this reason, the Tribunal declines the Department’s request for ‘guidance’.
[83] Becker page 699, per Brennan J.
The appropriate course is for the decision under review to be set aside pursuant to s 105(c) of the Tribunal Act as far as it relates to category 3 of the FOI request. In the circumstances, it would seem to be appropriate for the Tribunal to remit the decision to the Respondent so that it can clarify the scope of category 3 of the FOI request and plan for and execute further searches for relevant documents.
The Tribunal will hear from the parties should Mr Barot seek to make application under s 66 of the FOI Act for the Tribunal to recommend to the Minister for Home Affairs that the Commonwealth pay Mr Barot’s costs associated with his application.
| Date(s) of hearing: | 15 and 22 August 2025 |
| Date final submissions received: | 26 August 2025 and 29 August 2025 |
| Solicitors for the Applicant: | Nil |
| Solicitors for the Respondent: | Hicksons | Hunt & Hunt Lawyers |
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