Compass Group (Australia) Pty Ltd and Minister for Immigration and Citizenship

[2008] AATA 1035

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION

[2008] AATA 1035

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1772

GENERAL ADMINISTRATIVE DIVISION        )

ReCompass Group (Australia) Pty Ltd

Applicant

AndMinister for Immigration and Citizenship

Respondent

DECISION

On application under s 66 of the Freedom of Information Act 1982 (Cth)

TribunalProfessor GD Walker, Deputy President

Date18 November 2008

PlaceSydney

DecisionThe application for a recommendation under s 66(1) of the FoI Act is denied.

....................[sgd]..........................

Professor GD Walker
  Deputy President

CATCHWORDS

FREEDOM OF INFORMATION – whether tribunal should recommend that costs be paid by the Commonwealth – application for documents was successful – whether payment of costs would cause financial hardship to the applicant – whether decision will be of benefit to the general public – whether decision will be of commercial benefit to the applicant – whether reviewable decision was reasonable – issue of delay is a relevant discretionary factor – not appropriate to make a recommendation in this case.

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RELEVANT ACTS

Freedom of Information Act 1982 (Cth) (the FoI Act): ss 41, 66

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CITATIONS

Cashman and Partners v Secretary, Department of Human Services and Health [1995] FCA 1730

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REASONS FOR DECISION

18 November 2008	Professor GD Walker, Deputy President
Basic facts

1. A directions hearing by telephone was held on 28 October 2008 at which the respondent announced that it had now released the two remaining documents in issue in the substantive application. The applicant was satisfied with the release of the documents and was prepared to enter into terms of settlement accordingly. The applicant then applied for a recommendation under s 66 of the Freedom of Information Act 1982 (Cth) (the FoI Act) that the applicant's costs in relation to the proceedings be paid by the Commonwealth.

2. At the directions hearing by telephone, the tribunal heard from Mr Farid Varess of Fragomen Global for the applicant and Mr Avenish Chand of Clayton Utz for the respondent.

Applicant’s submissions

1. Mr Varess explained that the applicant company has been an approved business sponsor for subclass 457 temporary business visas since 1999 and, until 2007, had encountered no problems in relation to that activity.

2. The applicant had previously been known as Eurest (Australia) Support Services Pty Ltd.

3. In March 2007, however, the department instituted a monitoring process in relation to the applicant, which was very time-consuming and culminated in January 2008 in sanctions being imposed on the applicant, specifically a two-year bar from sponsoring temporary business visas or applying for approval as a sponsor or from nominating persons for such visas.  Apart from the one hundred applicants it was then nominating for 457 visas, it was unable to add any further visa applicants or assist them to apply for permanent visas.

4. The bar had a major impact on the applicant’s business, which began losing visa holders to other agents who were in a position to help holders to transfer to permanent status.  The applicant applied to the Migration Review Tribunal (MRT) in February 2008 for review of the bar decision and in March 2008 lodged the FoI application that is the subject of the proceedings in this tribunal (T2).  The MRT gave the application priority (T2 p10).

5. Correspondence with the department concerning the processing of the FoI request ensued, in the course of which the respondent made it clear that it would be unable to complete the process within the statutory 30 days allowed.  The applicant thereupon applied to this tribunal for review of the respondent’s deemed refusal of the request.

6. On 4 August 2008, the respondent released numerous documents including interview notes with the applicant’s 457 holders.  On 1 October 2008, the MRT set aside the bar.

7. As the application had been successful within the meaning of s 66(1) of the FoI Act, the tribunal was now required to decide whether to make a recommendation on the basis inter alia of the factors listed in s 66(2).

8. It was very relevant that the processing of the request had been completed six months after the request was initially made.

9. In relation to the hardship factor in s 66(2)(a), it was not claimed that the payment of the costs would cause the applicant financial hardship. As to paragraph (b) it was important that commonwealth agencies comply with statutory time limits, Mr Varess said. The bar imposed had exerted an impact on visa holders seeking to move to permanent status and to bring their families to Australia.

10. The tribunal’s decision did not result in a commercial benefit to the applicant within the meaning of s 66(2)(c) of the FoI Act. The documents released had assisted the applicant to present its case before the MRT but they had provided guidance only and had not been relied on as such. They were of some use but did not form the basis of the MRT decision.

11. As regards the reasonableness of the decision reviewed by the tribunal (s 66(2)(d)), tribunal decisions established that where a deemed refusal was set aside, failure to release the documents within the statutory time could not be seen as reasonable.

Consideration

1. As is it not disputed that the application was successful within the meaning of s 66(1), it is necessary only to deal with the factors listed in s 66(2).

2. The documents to which access was given were not lodged with the tribunal, nor did the parties file affidavits dealing with the factual issues raised by s 66(2), as contemplated by Cashman and Partners v Secretary, Department of Human Services and Health [1995] FCA 1730 at [32].

3. There is no evidence of hardship to the applicant from bearing the costs of the application, and as the respondent pointed out, the applicant is the leading commercial catering and food service organisation, with over 10,000 employees in Australia.  The parent company’s turnover is $21,000,000,000, which likewise suggests that the Australian company is a substantial operation.

4. The benefit flowing from the release of the documents accrues mainly to the applicant, as it is conceded that the documents proved useful to the applicant in its application before the MRT that enabled it to continue its activities in relation to 457 temporary business visas and there is no evidence establishing a wider public benefit.  Whether assisting 457 visa holders to move towards permanent status and to bring their families to Australia represents a benefit to the general public would depend on the merits of the individual application, and there is no evidence as to that.

5. As the applicant submitted, it is important that commonwealth agencies comply with statutory time limits, but the respondent had a backlog of thousands of FoI requests and the applicant's particular request related to over 200 files.  That processing took longer than the legislation contemplated does not in itself establish that the respondent was obstructive or dilatory.

6. The tribunal proceedings enabled progressive clarification of the request that assisted in the analysis of the respondent’s files. They also provided an opportunity for the applicant to supply necessary consents so that the department was able to reconsider decisions under s 41 of the FoI Act and make further releases.

7. The processing of the request was a progressive process involving negotiation and compromise at various stages.  Five directions hearings were held, on 4 August, 3 September, 18 September, 14 October and 28 October 2008.

8. As regards s 66(2)(c), it is admitted that the decision on review has been of commercial benefit to the applicant by providing guidance or assistance that helped them to succeed in their application before the MRT that led to the lifting of the bar. It has enabled the applicant to continue with its commercial activities of employing overseas workers in its Australian food service operations. That benefit must wholly or partly have offset the costs incurred by the applicant in maintaining the proceedings, especially as it proved unnecessary in the event for the matter to go to hearing.

9. The applicant submitted that as three of the four paragraphs appear to support a recommendation if answered in the affirmative, para (c) should be interpreted in the same way.  The four considerations are not, however, presented as conditions or qualifying factors, but as matters to which regard is to be had.  Indeed, the factor in para (d) seems to assume that a negative answer will favour the making of a recommendation.  Paragraph (c) strikes me as being ambivalent, favouring one side or the other, depending on the facts and circumstances.

10. In relation to s 66(2)(d), while the issue of delay is a relevant discretionary matter (Cashman at [43]), the setting aside of a deemed refusal need not in itself be viewed as establishing that the respondent acted otherwise than reasonably.  As was indicated above, the request required the analysis of a large number of individual files.  There is no evidence that the time taken in processing resulted from obstruction or neglect on the part of the respondent, who on the contrary co-operated at all stages in the progressive release of the material sought until all the documents requested had been made available, thereby obviating the need for a hearing.

11. I therefore conclude that it is not appropriate to make a recommendation under s 66(1) of the FoI Act.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:   ............................[sgd]................................................
               Renee Wallace, Associate

Date/s of Hearing:  28 October 2008
Date of Decision:  18 November 2008
Solicitor for the Applicant:                  Mr F Varess, Fragomen Global
Solicitor for the Respondent:             Mr A Chand, Clayton Utz