DAVID JACK and DEPARTMENT OF IMMIGRATION AND CITIZENSHIP
[2009] AATA 554
•28 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 554
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5331
GENERAL ADMINISTRATIVE DIVISION ) Re DAVID JACK Applicant
And
DEPARTMENT OF IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Deputy President S D Hotop Date28 July 2009
PlacePerth
Decision The Tribunal varies the decision under review by determining that the record of information contained in the document dated 13 July 2007 should be amended as stated in paragraph 28 of the Reasons for Decision herein. In all other respects, the Tribunal affirms the decision under review.
..........[sgd S D Hotop]........
Deputy President
CATCHWORDS
FREEDOM OF INFORMATION – amendment of personal records – applicant claimed that documents in possession of respondent contain personal information about him that is incorrect and misleading – applicant applied for amendment of record of that information kept by respondent – Tribunal satisfied that one relevant document contains information that is incorrect – record of information contained in that document should be amended – Tribunal not satisfied the other relevant documents contain information that is incomplete, incorrect, out of date or misleading – record of information contained in those documents cannot be amended – applicant may apply for annotation of documents – decision under review varied
Freedom of Information Act 1982 (Cth) s 4(1), s 48, s 49, s 50, s 51, s 51A, s 51B, s 51E and s 55
Migration Regulations 1994 (Cth), reg 1.21, reg 1.22, reg 1.23, reg 1.24, reg 1.25, reg 1.26 and reg 1.27
REASONS FOR DECISION
28 July 2009 Deputy President S D Hotop Introduction
1. By letter dated 20 July 2007 David Jack (“the applicant”) requested the Department of Immigration and Citizenship (“the Department”) to amend its records concerning him on the ground that those records contain information about him that is incorrect and misleading.
2. On 1 July 2008 an officer of the Department decided to refuse the applicant’s request.
3. By letter dated 14 July 2008 the applicant requested an internal review by the Department of its decision of 1 July 2008.
4. On 18 September 2008 another officer of the Department determined that the relevant records do not contain information about the applicant that is incomplete, incorrect, out of date or misleading, and decided not to amend those records.
5. The applicant has applied to the Tribunal for review of the Department’s decision of 18 September 2008.
The Relevant Statutory Provisions
6. The relevant provisions of the Freedom of Information Act 1982 (Cth) (“FOI Act”) are as follows:
“ Part V – Amendment and annotation of personal records
48 Application for amendment or annotation of personal records
Where a person claims that a document of an agency or an official document of a Minister to which access has been lawfully provided to the person, whether under this Act or otherwise, contains personal information about that person:
(a) that is incomplete, incorrect, out of date or misleading; and
(b) that has been used, is being used or is available for use by the agency or Minister for an administrative purpose;
the person may apply to the agency or Minister for:
(c) an amendment; or
(d) an annotation;
of the record of that information kept by the agency or Minister.
49Requirements of an application for amendment
An application for amendment must:
(a) be in writing; and
(b) as far as practicable, specify:
(i)the document or official document containing the record of personal information that is claimed to require amendment; and
(ii)the information that is claimed to be incomplete, incorrect, out of date or misleading; and
(iii)whether the information is claimed to be incomplete, incorrect, out of date or misleading; and
(iv)the applicant’s reasons for so claiming; and
(v)the amendment requested by the applicant; and
(c) specify an address in Australia to which a notice under this Part may be sent to the applicant; and
(d) be sent by post to the agency or Minister, or delivered to an officer of the agency or a member of the staff of the Minister, at the address of the office of the agency or Minister (as the case may be) determined in accordance with paragraph 15(2)(d).
50Amendment of records
(1) Subject to section 51C, where the agency or Minister to whom such an application is made is satisfied that:
(a) the record of personal information to which the request relates is contained in a document of the agency or an official document of the Minister, as the case may be; and
(b) the information is incomplete, incorrect, out of date or misleading; and
(c) the information has been used, is being used or is available for use by the agency or Minister for an administrative purpose;
the agency or Minister may amend the record of information.
(2) The agency or Minister may make the amendment:
(a) by altering the document or official document concerned to make the information complete, correct, up to date or not misleading; or
(b) by adding to that document or official document a note:
(i)specifying the respects in which the agency or Minister is satisfied that the information is incomplete, incorrect, out of date or misleading; and
(ii)in a case where the agency or Minister is satisfied that the information is out of date – setting out such information as is required to bring the information up to date.
(3) To the extent that it is practicable to do so, the agency or Minister must, when making an amendment under paragraph (2)(a), ensure that the record of information is amended in a way that does not obliterate the text of the record as it existed prior to the amendment.
51Annotations of records etc following unsuccessful applications for amendments of records
(1) Where an agency or Minister decides not to amend a document or official documents (sic) wholly or partly in accordance with an application under section 48, the agency or Minister must:
(a) take such steps as are reasonable in the circumstances to enable the applicant to provide a statement of the kind mentioned in paragraph 51A(c); and
(b) subject to subsection (2), annotate the document or official document concerned by adding to it the statement so provided.
(2) Paragraph (1)(b) does not apply if the agency or Minister considers the statement to be irrelevant, defamatory or unnecessarily voluminous.
(3) For the purposes of this Act, the provision by the applicant of a statement under subsection (1) is taken to be an application made under section 51A on the day the statement is so provided.
51ARequirements of an application for annotation
An application for annotation must:
(a) be in writing; and
(b) as far as practicable, specify the document or official document containing the record of personal information that is claimed to require annotation; and
(c) be accompanied by a statement by the applicant that specifies:
(i)the information that is claimed to be incomplete, incorrect, out of date or misleading; and
(ii)whether the information is claimed to be incomplete, incorrect, out of date or misleading; and
(iii)the applicant’s reasons for so claiming; and
(iv)such other information as would make the information complete, correct, up to date or not misleading; and
(d) specify an address in Australia to which a notice under this Part may be sent to the applicant; and
(e) be sent by post to the agency or Minister, or delivered to an officer of the agency or a member of the staff of the Minister, at the address of the office of the agency or Minister (as the case may be) determined in accordance with paragraph 15(2)(d).
51BAnnotation of records
(1)Subject to section 51C, where the agency or Minister to whom such an application is made is satisfied that the record of personal information to which the request relates is contained in a document of the agency or an official document of the Minister (as the case may be), the agency or Minister must annotate the document or official document by adding to it the statement provided by the applicant under paragraph 51A(c).
(2)Subsection (1) does not apply if the agency or Minister considers the statement to be irrelevant, defamatory or unnecessarily voluminous.
…
51EComments on annotations
Nothing in this Part prevents an agency or Minister adding the agency’s or Minister’s comments to an annotation made to a record of information under section 51 or 51B.
Part VI – Review of decisions
…
55Applications to Administrative Appeals Tribunal
(1)Subject to this section, an application may be made to the Administrative Appeals Tribunal for review of:
…
(g) a decision refusing to amend a record of personal information in accordance with an application made under section 48; or
(h) a decision refusing to annotate a record of personal information in accordance with an application made under section 48.
…
(6)The Tribunal must not, on a review of a decision of a kind mentioned in paragraph (1)(g), make a decision that requires, or has the effect of requiring, an amendment to be made to a record if it is satisfied that:
(a) the record is a record of a decision, under an enactment, by a court, tribunal, authority or person; or
(b) the decision whether to amend the document involves a determination of a question that the applicant concerned is, or has been, entitled to have determined by a court or tribunal (other than the Tribunal); or
(c) the amendment relates to a record of an opinion to which neither of the following applies;
(i)the opinion was based on a mistake of fact;
(ii)the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion.”
The phrase “personal information” is defined in s 4(1) of the FOI Act to mean:
“information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion”.
The Evidence
7. The evidence before the Tribunal comprised:
· the “T Documents” (T1 – T13, pp 1 – 197) lodged by the Department in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· supplementary document (S1) filed by the Department on 19 February 2009 (Exhibit R1);
· further supplementary documents (S2 – S15) filed by the Department on 15 May 2009 (Exhibit R2);
· bundle of documents filed by the applicant on 27 March 2009 comprising Attachments 1 – 38 to his Statement of Facts, Issues and Contentions (Exhibit A1);
· bundle of documents tendered by the applicant at the hearing on 30 June 2009 (Exhibit A2); and
· the oral evidence of the applicant.
The Relevant Factual Background
8. The Tribunal finds the following background facts, about which there is no apparent dispute, on the basis of the T Documents and exhibits.
9. In 2003 the applicant sponsored his then partner (“Ms H”), a United Kingdom citizen, for the purpose of her application for a Spouse visa under the Migration Regulations 1994 (Cth) (“the Regulations”).
10. In early 2003, before Ms H’s visa application had been determined, the Department received information indicating that the applicant had been having “an affair” with a work colleague. In a letter to the Department, dated 25 May 2003, the applicant confirmed that he had had an affair with a work colleague for approximately 6 weeks from the beginning of April 2003.
11. Ms H’s application for a Spouse visa was subsequently considered by the Department having regard to the special provisions relating to domestic violence in the Regulations, and a visa was granted to her by an officer of the Department pursuant to those provisions.
12. Following much correspondence between the applicant and the Department, and an investigation by the Commonwealth Ombudsman pursuant to a complaint by the applicant regarding the Department, the applicant wrote a letter, dated 20 July 2007, to the Department which stated (inter alia):
“ …
The false and erroneous findings of domestic violence contained on my Departmental records have had, and continue to have, a profound effect on my personal development and wellbeing. I therefore remain determined to pursue this matter until these completely unfounded findings of domestic violence are acknowledged by the Department and completely expunged from my records.
…
Given that the domestic violence allegations were made against me in the form of unsubstantiated and completely false allegations levelled for personal gain, I will continue to protest my innocence and will pursue this matter until the completely unfounded findings made against me are completely expunged from my records.
However in the interim I request the following:
1.That all my previous and future correspondence with Department on this matter are placed on my record (sic), and all related records, to demonstrate my continuing protestations of innocence with regard to these completely false allegations; and
2.That the Department and/or Minister for Immigration and Citizenship amend my records under Section 48 of the Freedom of Information Act 1982 to delete any findings of against (sic) me with regard to domestic violence on the basis that such a ruling is both ‘incorrect’ and ‘misleading’.
…” (T4)
13. By letter dated 1 July 2008 an officer of the Department wrote to the applicant as follows:
“ I refer to your request received on 25 July 2007, in which you sought under the Freedom of Information Act 1982 (the FOI Act) to amend or annotate the department’s records relating to:
‘That the department and/or Minister for Immigration and Citizenship amend my records under section 48 of the Freedom of Information Act 1982 to delete any findings against (sic) me with regard to domestic violence on the basis that such a ruling is both “incorrect” and “misleading”.’
I am an officer authorised under section 23 of the FOI Act to make decisions in respect of requests to access documents or to amend or annotate departmental records.
In order for me to make an amendment under section 50 of the FOI Act, I must be satisfied that the record of personal information is incomplete, incorrect, out-of-date or misleading.
I apologise for the delay in the processing of your amendment request.
DECISION
I have decided to refuse your request for amendment as I am unable to delete information from department records.
MAKING AN ANNOTATION
Under the FOI Act, where a request for amendment is refused, this department may make an annotation upon your request. As previously discussed and confirmed by you in your email of 30 June 2008, an agreed notation will be placed on all departmental files relating to you. I (sic) copy of this notation can be found at Attachment A.
…”
The contents of Attachment A to that letter are as follows:
“ This file note is to advise that Mr David Jack made a request under section 48 of the Freedom of Information Act 1982 to amend personal information relating to him. Mr Jack has requested that all references to the domestic violence allegations be removed from departmental records. Mr Jack has been advised that it is not possible to destroy departmental records. However, s 51(1) of the FOI Act requires that where an agency decides not to amend a document or official documents wholly or partly in accordance with an application under s 48, the agency must take such steps as are reasonable in the circumstances to enable the applicant to provide a statement that specifies:
· the information that is claimed to be incomplete, incorrect out of date or misleading; and
· whether the information is claimed to be incomplete, incorrect, out of date or misleading; and
· the applicant’s reasons for so claiming; and
· such other information as would make the information complete, correct, up to date or not misleading.
In line with the requirements of the FOI Act, the following note is provided as an annotation of Mr Jack’s records.
Mr Jack was the sponsor in a spouse visa application lodged on 24/04/2003.
The relationship subsequently broke down and the subclass 801 visa application made by Mr Jack’s former partner on 24 April 2003 was considered against the provisions of the Migration Regulations 1994 which deal with domestic violence. The claim by Mr Jack’s former partner concerning domestic violence was based on a statutory declaration made by herself and statutory declarations made by two competent persons. Mr Jack refutes the accuracy of the statutory declarations provided by his former partner and the two competent persons.
Mr Jack categorically denies that he has, at any time, perpetrated domestic violence.
The accusations of domestic violence were made in the context of an ex parte application by Mr Jack’s former partner and Mr Jack consequently did not have the opportunity to view or challenge these accusations. Nor did Mr Jack have the opportunity to view or to challenge any other evidence used in the application.
The Commonwealth Ombudsman’s Office subsequently identified a number of significant procedural lapses in the manner that this application was dealt with.
At the time, the Department was required to accept the claims made by Mr Jack’s former partner and to make a decision in respect of her visa application. The Department was not required to make any finding against Mr Jack in respect of this application, nor did it do so.
Consequently, the grant of the visa application is of no evidential value in relation to Mr Jack.” (T5)
14. Following a request by the applicant, by letter dated 14 July 2008, to the Department for an internal review of its decision of 1 July 2008, another officer of the Department made a decision on 18 September 2008, the record of which relevantly states:
“ …
I have considered your request to delete or strike out material connecting you to allegations of domestic violence. Having reviewed the files, I consider that it is correct that a third party has made allegations of domestic violence against you. Therefore, whether or not it is considered by anyone that these allegations are true or false, I consider that the record stating that the allegations have been made is not an incomplete, incorrect, out-of-date, or misleading record. I note that our records reflect that you have advised us that you did not commit any acts of domestic violence against the third party. I consider it is correct that you have advised us of this, I therefore consider that those records of your claims should also be recorded on departmental records. As an annotation has already been made to record your claims, I consider that the records are complete in that both claims are recorded.
The above conflicting claims are claims only and are recorded on our system in order that the department can make any decisions relying, partially or fully, on those claims, under the Migration Act (sic) 1994. I therefore consider that it is correct that records of these claims should be made and kept by the department, as they relate directly to the legislation and decision making powers of the department. I consider it is not possible to delete records of claims made by clients if those records are required to be relied on in a decision making process. I consider that the annotation/s already made on your file are the only possible changes able to be made under the FOI Act.
…” (T10, pp 185 – 186)
The Scope of the Applicant’s Application for Amendment of Personal Records under S 48 of the FOI Act
15. At the hearing the applicant tendered in evidence a bundle of documents comprising letters from the Minister for Immigration and Citizenship, and officers of the Department, to him, and other documents which had been released to him under the FOI Act, the contents of which he claimed include personal information about him that is incorrect or misleading (Exhibit A2). It was agreed by the parties (correctly, in the Tribunal’s opinion) that the scope of the applicant’s application for amendment of personal records under s 48 of the FOI Act should be confined to those documents.
The Domestic Violence Provisions in the Regulations
16. For the purpose of considering the present application it is appropriate to set out the special provisions relating to domestic violence in the Regulations (as in force at the relevant time). Those provisions were as follows:
“ Division 1.5 Special provisions relating to domestic violence
1.21 Interpretation
(1) In this Division:
competent person means:
(a) in relation to domestic violence committed against an adult:
(i) a person registered as a medical practitioner under a law of a State or Territory providing for the registration of medical practitioners; or
(ii) a person registered as a psychologist under a law of a State or Territory providing for the registration of psychologists; or
(iii) a person who:
(A)is a registered nurse within the meaning of section 3 of the Health Insurance Act 1973; and
(B)is performing the duties of a registered nurse; or
(iv) a person who:
(A)is a member of the Australian Association of Social Workers or is recognised by that Association as a person who is eligible to be a member of that Association; and
(B)is performing the duties of a social worker; or
(v) a person who is a court counsellor under the Family Law Act 1975; or
(vi) a person holding a position of a kind described in subregulation (2); or
…
statutory declaration means a statutory declaration under the Statutory Declarations Act 1959.
violence includes a threat of violence.
(2) The positions referred to in subparagraph (a) (vi) of the definition of competent person in subregulation (1) are:
(a)manager or coordinator of:
(i) a women’s refuge; or
(ii) a crisis and counselling service that specialises in domestic violence; or
(b)a position with:
(i) decision‑making responsibility for:
(A)a women’s refuge; or
(B)a crisis and counselling service that specialises in domestic violence;
that has a collective decision‑making structure; and
(ii) responsibility for matters concerning domestic violence within the operations of that refuge or crisis and counselling service.
1.22References to person having suffered or committed domestic violence
(1) A reference in these Regulations to a person having suffered domestic violence is a reference to a person being taken, under regulation 1.23, to have suffered domestic violence.
(2) A reference in these Regulations to a person having committed domestic violence in relation to a person is a reference to a person being taken, under regulation 1.23, to have committed domestic violence in relation to that person.
1.23When is a person taken to have suffered or committed domestic violence?
(1)For the purposes of these Regulations:
(a)a person (the alleged victim) is taken to have suffered domestic violence; and
(b)another person (the alleged perpetrator) is taken to have committed domestic violence in relation to the alleged victim;
if:
(c)on the application of the alleged victim, a court has granted an injunction under paragraph 114 (1) (a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator; or
(d)a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence and, unless the alleged victim had, before 1 January 1998, claimed to Immigration to have suffered domestic violence committed by the alleged perpetrator, that order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter; or
(e)a court has convicted the alleged perpetrator of, or has recorded a finding of guilt against the alleged perpetrator in respect of, an offence of violence against the alleged victim; or
(f)the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim; or
(g)if the alleged victim is a person referred to in subregulation (2) – the alleged victim or another person on the alleged victim’s behalf presents evidence in accordance with regulation 1.24 that:
(i) the alleged victim has suffered relevant domestic violence; and
(ii) the alleged perpetrator has committed that relevant domestic violence.
(2) In paragraph (1)(g):
(a)the persons referred to are the following:
(i) a spouse of the alleged perpetrator;
(ii) a dependent child of:
(A)the alleged perpetrator; or
(B)the spouse of the alleged perpetrator; or
(C)both the alleged perpetrator and his or her spouse; or
(D)a person in an interdependent relationship with the alleged perpetrator;
(iii) a member of the family unit of a spouse of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse);
(iv) a person who is in an interdependent relationship with the alleged perpetrator; and
(b)a reference to relevant domestic violence is a reference to violence against the alleged victim or his or her property that causes the alleged victim, or a member of the alleged victim’s family, to fear for, or to be apprehensive about, the alleged victim’s personal well-being or safety.
1.24Evidence
(1)The evidence referred to in subparagraph 1.23(1)(g) is:
(a)a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims) together with:
(i) a statutory declaration under regulation 1.26 (which deals with statutory declarations by competent persons); and
(ii) a copy of a record of an assault on the alleged victim allegedly committed by the alleged perpetrator, being a record kept by a police service of a State or Territory; or
(b)a statutory declaration under regulation 1.25, together with 2 statutory declarations under regulation 1.26.
(2) A person must not submit, for the purposes of an application that relies on this Division, 2 statutory declarations by competent persons who both have a qualification specified in:
(a)the same subparagraph of paragraph (a) of the definition of competent person; or
(b)subparagraph (b) (ii) of that definition.
1.25 Statutory declaration by alleged victim etc
(1) A statutory declaration under this regulation must be made by
(a) the spouse of the alleged perpetrator; or
(b)if the alleged perpetrator is in an interdependent relationship with a person – that person.
(2) A statutory declaration under this regulation that is made by a person who alleges that he or she is the victim of relevant domestic violence (within the meaning of paragraph 1.23(2)(b)) must:
(a)set out the allegation; and
(b)name the person alleged to have committed the relevant domestic violence.
(3) A statutory declaration under this regulation that is made by a person who alleges that another person is the victim of relevant domestic violence (within the meaning of paragraph 1.23(2)(b)) must:
(a)name that other person; and
(b)set out the allegation; and
(c)identify the relationship of the maker of the statutory declaration to that other person; and
(d)name the person alleged to have committed the relevant domestic violence; and
(e)set out the evidence on which the allegation is based.
1.26Statutory declaration by competent person
A statutory declaration under this regulation:
(a)must be made by a competent person; and
(b) must set out the basis of the competent person’s claim to be a competent person for the purposes of this Division; and
(c) must state that, in the competent person’s opinion, relevant domestic violence (within the meaning of paragraph 1.23(2)(b)) has been suffered by a person; and
(d) must name the person who, in the opinion of the competent person, has suffered that relevant domestic violence; and
(e) must name the person who, in the opinion of the competent person, committed that relevant domestic violence; and
(f) must set out the evidence on which the competent person’s opinion is based.
1.27Statutory declaration not admissible in evidence
A statutory declaration made under regulation 1.25 or 1.26 is not admissible in evidence before a court or tribunal other than in a prosecution of the maker of the statutory declaration under section 11 of the Statutory Declarations Act 1959.”
The word “spouse” is defined in reg 1.15A and includes a person in a “de facto relationship” with a person of the opposite sex.
Consideration
17. As regards the abovementioned bundle of documents (Exhibit A2) which the applicant claims contain personal information about him that is incorrect or misleading, the applicant, for the purpose of supporting his claim, divided those documents into 3 categories (albeit with some overlap as certain documents were placed in more than one category) and made a contention or request in relation to each category of documents as follows:
“ 1 Correspondence Suggesting No Findings or Rulings against Mr Jack
It is contended that all correspondence suggesting that there has been no ‘finding’ or ‘ruling’ against Mr Jack is either misleading or contradictory given that a visa was granted to Ms H… on the grounds that she had been subjected to domestic violence. It is respectfully requested that the relevant correspondence should be amended to clearly and accurately state:
The Department does not consider that Mr Jack was responsible for domestic violence in any way.
2 Correspondence indicating Correct Process was Followed
Where it is suggested that the application for a visa under the domestic violence provisions was decided according to the law as it then stood a clarifying statement is requested to confirm:
Mr Jack contends that the allegations presented to the ‘experts’ contained false claims presented for the sole purpose of satisfying prescribed domestic violence thresholds a outlined to Ms H… by [a named officer of the Department]. The Ombudsman has confirmed that [the officer] had a ‘strong sympathy for Ms H… and an equally strong dislike of Mr Jack’ confirming that the determining officer did not act impartially, had a strong bias against the applicant and on the balance of probability inappropriately influenced and directed the nature and extent of the false allegations made against the applicant and presented to the expert witnesses.
3 Correspondence indicating Ms H… Provided the Requisite Evidence
With regard to the false allegations made against Mr Jack the following amendment is requested to all documents that currently suggest that the process for meeting non-judicially determined domestic violence was met:
1.The allegations made by Ms H… in support of her visa application were, and remain, ‘untested’;
2.The expert witness statements reflect opinions based solely on unsubstantiated and untested allegations which are refuted by Mr Jack;
3.There is no credible evidence to suggest these allegations were true;
4.The Department does not consider that Mr Jack was responsible for domestic violence in any way; and
5.The expert witness statements and all other such information should not be used in any way against Mr Jack or with regard to any future decisions made regarding Mr Jack.”
For the purpose of considering and determining the applicant’s application under s 48 of the FOI Act, the Tribunal will refer to the abovementioned categories of documents as “the category 1 documents”, “the category 2 documents”, and “the category 3 documents”.
The category 1 documents
18. There are 13 documents in this category and the Tribunal will consider each of those documents in chronological order.
Document dated 6 August 2004
19. This document is a letter from Wendy Durston, Residence Section, Department of Immigration and Multicultural and Indigenous Affairs to the applicant which relevantly states:
“ I refer to your letter of 1 July 2004 and our recent telephone conversation in which you sought information to help understand the domestic violence provisions of the Migration Regulations.
I appreciate why you have raised your concerns about the provisions and your situation. However, Australia’s privacy laws prevent me from providing information about your ex-partner’s case without her consent.
On a general basis, I can advise that all applications are carefully considered against the visa requirements before a visa is granted. An applicant claiming domestic violence must submit documents that have been prescribed in the Migration Regulations as acceptable evidence that domestic violence has occurred. Under the current legislation, once a person has submitted the acceptable forms of evidence there is no legal basis to further investigate the substance of their claims to have suffered domestic violence or to take into consideration information offered by other people. Provided the relationship is assessed as genuine and continuing before the breakdown, and subject to the person meeting requirements for health, character and other matters, they and any members of the family unit included in the application can be granted permanent residence.
…”
20. The Tribunal is not satisfied that the personal information about the applicant contained in that document is, in any respect, incorrect or misleading, within the meaning of s 50(1)(b) of the FOI Act.
Document dated 28 October 2004
21. This document is a letter from Ruth Wilson, Acting Director, Family Section, Department of Immigration and Multicultural and Indigenous Affairs to the applicant which relevantly states:
“ Thank you for your letter of 3 September 2004 to the West Australian Minister for Police and Emergency Services; Justice; Community Safety, the Hon Michelle Roberts MLA, concerning the granting of a Spouse visa to your former partner under the domestic violence provision. Your letter was forwarded to the Minister for Immigration and Multicultural and Indigenous Affairs, Senator the Hon Amanda Vanstone, as the matters you raise fall within her portfolio. Your letter has been referred to me for reply. I regret the delay in reply.
…
I note your concerns about your former partner, Ms H…, obtaining a permanent Spouse visa under the domestic violence provision of the Migration Regulations.
As Ms Wendy Durston of the department’s Perth office advised you in her letter of 6 August 2004, an applicant claiming domestic violence must submit acceptable forms of evidence that domestic violence has occurred. Acceptable judicial evidence includes court orders, a family law injunction or convictions or findings of guilt. Acceptable non-judicial evidence includes a statutory declaration signed by the applicant and two statutory declarations by ‘competent persons’.
Competent persons include doctors, psychologists, social workers and managers of women’s refuges. Each of the two statutory declarations must be from competent persons in different professional groups. The statutory declarations by competent persons must name both the alleged victim and alleged perpetrator of the domestic violence, state that in the competent person’s opinion domestic violence has occurred and set out the evidence to support that statement.
Under the current legislation, once a person has submitted the acceptable forms of evidence to the department, there is no capacity for officers of the department to further investigate the substance of the claims of domestic violence. There is no provision in the legislation for weighing of evidence or consideration of information offered by other people. The decision made by departmental officers is not a finding of guilt, rather a decision that the requirements of the legislation have been met.
…”
22. The Tribunal is not satisfied that the personal information about the applicant contained in that document is, in any respect, incorrect or misleading, within the meaning of s 50(1)(b) of the FOI Act.
Document dated 15 December 2004
23. This document is a copy of a file note headed “Discussion with David Jack lunchtime 15 December 2004”, purportedly prepared by Sarah Dinning, Director, Values and Conduct Section, Department of Immigration and Multicultural and Indigenous Affairs, recording a telephone discussion between her and the applicant on 15 December 2004. The contents of that document are as follows:
“ I returned a call from David Jack who was inquiring about the outcome of the IISC consideration of his allegations against [a named officer of the Department]. I advised him that a report went to the IISC last Friday and that there was insufficient evidence to conclude that a departmental officer had breached the Code of Conduct or had engaged in criminal behaviour. I advised him that he would receive a letter in January formally advising him as complainant of the outcome. I said that the letter would not give details of the evidence presented and how it was assessed but would repeat what I had advised him verbally.
He was unhappy with this indicating that he could not see how a decision maker asking a client to a party was anything other than a conflict of interest. He indicated that as a result of his spouse getting a visa under the domestic violence provisions he had been slurred and that he wanted to clear his name. He said that the decision was flawed and the evidence was the inappropriate behaviour of the departmental officer. He also said that his attempts to clear his name had been thwarted at all levels by the department and that we were covering up for the misconduct of staff.
I advised him that:
·the construction he was putting on the dealings between the departmental officer and his former spouse were not supported by the evidence gathered through the investigation
·that our investigators were trained to gather and weigh evidence
·that the IISC was a senior management committee with experience in considering cases of this sort
·that the department does not cover up the misconduct of staff and that he could refer to the annual report for statistics on matters investigated and matters substantiated including sanctions against staff.
I indicated that I was not aware of any means by which he could clear his name but that I understood his concerns with the visa decision making process had been responded to by the Family Section in Central Office. He asked about review mechanisms and I said that he could not get a review of the internal investigations investigation and decision making because this was a matter between the employee and the department. He had played his role by making his allegation and presenting what evidence he had in support of it.
He asked about review mechanisms in relation to the visa process. I said that there were a range of administrative review mechanisms available including the Ombudsman who could look at defective administration. I said that my understanding was that the Ombudsman did not have jurisdiction in relation to employment matters, so could not review our internal investigations process, but presumably could look at the visa decision making process. He indicated that he had been in contact with the Ombudsman. I advised him to talk to the Ombudsman’s office about the matter and about its jurisdiction. I mentioned FOI and he indicated that had got nowhere with that route and that the department was blocking him. I indicated that I thought that he could appeal to the AAT if that was his view and he said that he couldn’t afford the $600 application fee.
He made reference to having a stain on his character and I said that just because there was a decision made at a point in time did not mean that his reputation was damaged. He said that others had said that to him and suggested him (sic) to put it behind him but he couldn’t. I suggested that there might be other less formal mechanisms for him to work through the issues including counselling and he said that he had done that and it was expensive.
He said that the whole issue was an inditement (sic) of Australian democracy.
He asked that in writing to him I advise him of review rights and also asked if he could speak to the investigator Nick Eid. I said that I would check with Mr Eid but that he couldn’t tell Mr Jack anything more than I had said. I indicated that I would address the issue of review rights in the letter we send.
The discussion lasted around 45 minutes.”
24. The Tribunal is not satisfied that the personal information about the applicant contained in that document is, in any respect, incorrect or misleading, within the meaning of s 50(1)(b) of the FOI Act.
Document dated 5 April 2005
25. This document is a copy of a letter from Jose Alvarez, State Director, Department of Immigration and Multicultural and Indigenous Affairs to Dr Carmen Lawrence MP, Federal Member for Fremantle which relevantly states:
“ Thank you for your personal representations of 15 March 2005 on behalf of your constituent Mr Jack, concerning domestic violence allegations that may have been made against him in regards to his ex-fiancée’s application for a spouse visa.
Australia’s privacy laws prohibit me from disclosing information on his ex-fiancée’s case without her consent and therefore, it is not possible to confirm or deny the circumstances under which her application was considered. I assure you that the decision on her application was carefully made in accordance with the legislative requirements.
This Department has no jurisdiction to make a finding of guilt against a person in regards to domestic violence. Although I cannot comment of (sic) whether Mr Jack’s ex-fiancée’s visa application was considered under the domestic violence provisions, I can confirm that there have been no findings made against Mr Jack. As such there has not been a denial of natural justice in his case.
…”
26. The Tribunal is not satisfied that the personal information about the applicant contained in that document is, in any respect, incorrect or misleading, within the meaning of s 50(1)(b) of the FOI Act.
Document dated 13 July 2007
27. This document is a letter from Deborah Jacka, Assistant Secretary, Review Coordination Branch, Department of Immigration and Citizenship to the applicant which states as follows:
“ Thank you for your correspondence to the Hon Kevin Andrews MP, Minister for Immigration and Citizenship, concerning your complaint against the Department of Immigration and Citizenship. The Minister has asked me to reply on his behalf.
As you are aware, the Department has had extensive dealings with the Ombudsman’s office in relation to your complaint and has responded to their enquiry into the matter. In light of the Department’s response, the Ombudsman’s office decided that they would not pursue further enquiries into this matter and your complaint was closed.
You have expressed your continued dissatisfaction with the outcome of this matter and your disappointment with the Ombudsman’s decision to cease investigations. I note that, in response to your letter of 26 April 2007 to Dr Vivienne Thom, Acting Commonwealth and Immigration Ombudsman, the Ombudsman’s office again advised that there is nothing further that they can do to assist you in this matter and that the investigation of your complaint has been closed. I am advised that the Ombudsman’s office has indicated that they do not believe that the meeting you have requested with Professor McMillan and Dr Thom to discuss your case would serve any worthwhile purpose. Given our understanding that the Ombudsman, as the independent arbiter on the matter, has expressed this view, I consider that a meeting with Mr Andrews would not result in a different outcome.
The Department has expressed its regret for the administrative deficiencies in the handling of your case and wrote to you in May 2006 inviting you to lodge a claim for compensation for the way that you were treated by departmental officers. However, the Department maintains that the correct processes were followed in the consideration of the domestic violence claims made against you and that the decision on your (sic) visa application was made according to law. I note that in their response to you the Ombudsman’s office also advised that it is open to you to seek legal advice about any judicial review rights that may be available to you and I understand that you are pursuing this matter.
With regard to your request that any references to allegations of domestic violence made against you be removed from your departmental records, I advise that those records are official records and therefore cannot be removed from file or destroyed. However, your records can be annotated to reflect the concerns you have raised in relation to the allegations made against you and the way your case has been handled by the Department. The Department has already agreed to place on your file a copy of the Ombudsman’s letter of October 2006 which reflects the outcome of their investigation of your complaint, as well as any other letter from you on this matter. This offer remains open to you.
Thank you for bringing this matter to the Minister’s attention.”
28. It seems to the Tribunal that, in one respect, the record of information contained in that document is incorrect, namely, the reference to “… your visa application …” in the second sentence of the fourth paragraph. The visa application to which the writer was presumably meaning to refer in that sentence is Ms H’s visa application, not the applicant’s visa application. The relevant document in the possession of the Department should, accordingly, be amended, in accordance with subss (2) and (3) of s 50 of the FOI Act, by the Department so as to correct the error in that sentence. The Tribunal is not satisfied that, in any other respect, the personal information about the applicant contained in that document is incorrect or misleading, within the meaning of s 50(1)(b) of the FOI Act.
Document dated 13 August 2007
29. This document is a letter from Deborah Jacka to the applicant which relevantly states:
“ Thank you for your recent correspondence concerning your complaint against the Department of Immigration and Citizenship, including your letters to the Premier of Western Australia and your letter of 20 July 2007 to the Hon Kevin Andrews MP, the Minister for Immigration and Citizenship. The Minister has asked to reply on his behalf.
The Department has previously acknowledged that there were administrative deficiencies in departmental actions relating to your case, apologised for the way that you were treated and invited you to lodge a claim for compensation. However, in relation to the domestic violence issue, as the A/g Ombudsman indicated in her letter of 17 April 2007 to you, Ms H…’s case was decided according to the law as it then stood. The requisite evidence, which demonstrated that the criteria were met, was made available to the Department and a decision was made that was consistent with it.
With regard to your request that references to findings against you in regard to domestic violence be removed from your departmental records, I advise again that the records are official records and therefore cannot be removed from file or destroyed. Under the Archives Act it is not possible to remove or expunge information from files. However, as previously indicated, your records can be annotated to reflect the concerns you have raised in relation to the allegations made against you and the way you believe your case has been handled by the Department. The Department has already agreed to place on your file a copy of the Ombudsman’s letter of October 2006 which reflects the outcome of their independent investigation of your complaint, as well as any other letter from you on this matter, an offer which remains open to you.
Your case has been fully considered by the Department. In respect of your request for a meeting with Mr Andrews, in my view, as previously advised, a meeting would not serve a worthwhile purpose, as it would not generate a different outcome.
…”
30. The Tribunal is not satisfied that the personal information about the applicant contained in that document is, in any respect, incorrect or misleading, within the meaning of s 50(1)(b) of the FOI Act.
Document dated 14 September 2007
31. This document is a letter from Deborah Jacka to the applicant which states as follows:
“ Thank you for your correspondence of 17 August 2007 regarding your complaint against the Department of Immigration and Citizenship, including your letter to the Hon Kevin Andrews MP, the Minister for Immigration and Citizenship. The Minister has asked me to reply on his behalf.
I note that you are in the process of seeking legal advice regarding your complaint against the Department.
In respect of your requests for information about departmental officers and for a meeting with Minister Andrews, I am unable to add anything to the previous advice provided to you. The Department has fully considered your case, acknowledged administrative deficiencies in departmental actions, apologised for the way you were treated and invited you to lodge a claim for compensation.
I note that the Ombudsman’s office investigated your complaint and in light of the Department’s response to their enquiries advised that there was nothing further they could do to assist you and that the investigation was closed.
Thank you for bringing this matter to the Minister’s attention.”
32. The Tribunal is not satisfied that the personal information about the applicant contained in that document is, in any respect, incorrect or misleading, within the meaning of s 50(1)(b) of the FOI Act.
Document dated 19 October 2007
33. This document is a letter from Deborah Jacka to the applicant which relevantly states:
“ Thank you for your correspondence regarding your complaint against the Department of Immigration and Citizenship, including your letter of 30 September 2007 to the Hon Kevin Andrews, the Minister for Immigration and Citizenship. Your correspondence has been referred to me for reply.
I am unable to add anything to the advice provided to you previously regarding the matters you have raised, including your request for a meeting with Minister Andrews. As you have been advised, the Department has considered your case fully, acknowledged administrative deficiencies in departmental actions, apologised to you and invited you to seek compensation.
…”
34. The Tribunal is not satisfied that the personal information about the applicant contained in that document is, in any respect, incorrect or misleading, within the meaning of s 50(1)(b) of the FOI Act.
Document dated 26 February 2008
35. This document is a copy of a letter from Senator Chris Evans, Minister for Immigration and Citizenship to the Hon Julie Bishop MP, Member for Curtin which states as follows:
“ Thank you for your letter of 22 January 2008 on behalf of Mr Jack asking that you bring his case to my attention.
I have been briefed on the issues raised by Mr Jack and am confident that the Department is now doing all that it can to accommodate his concerns.
I am informed that discussions are taking place directly between Mr Jack and departmental officers for a mutually acceptable form of words to annotate his files regarding his strongly held denials of domestic violence.
I note that the Department has previously apologised to Mr Jack (by letter dated 1 May 2006) for the treatment he received by the Department and for breaches of his privacy, I am aware that Mr Jack, through his lawyers, is in the process of seeking compensation from the Department.
In respect of Mr Jack’s request for, ‘deletion of the inaccurate and misleading findings of domestic violence from my records’ (his letter to you dated 14 November 2007) I wish to make it clear that the Department has not made any ‘findings’ of domestic violence against him.
While I am not able to discuss the particulars of his ex-fiancée’s visa application I can assure Mr Jack that it did not involve any ‘findings’ or ‘rulings’ by the Department as to his conduct. I believe this will be evident from his files which are currently with the departmental officers who are processing his Freedom of Information (FOI) request.
I note that the Ombudsman conducted a detailed investigation into Mr Jack’s complaints and the Department acknowledged deficiencies in its conduct. These deficiencies have been noted and procedures put into place to avoid the recurrence of similar situations.
I am confident that departmental staff will continue to engage positively with Mr Jack in order to complete his FOI request and to annotate his files with a form of words which will accommodate, as far as possible, his concerns.
Thank you for bringing Mr Jack’s matter to my attention.”
36. The Tribunal is not satisfied that the personal information about the applicant contained in that document is, in any respect, incorrect or misleading, within the meaning of s 50(1)(b) of the FOI Act.
Document dated 10 March 2008
37. This document is a letter from Senator Chris Evans, Minister for Immigration and Citizenship to the applicant which states as follows:
“ Thank you for your letter of 12 February in which you set out your concerns regarding your dealings with my Department.
I have recently written to the Hon Julie Bishop MP, Deputy Leader of the Opposition, who wrote on your behalf, also bringing your case to my attention. I attach a copy of that letter for your records.
As stated in the letter I have been briefed on the issues you have raised and am aware of your concerns.
I am informed that your Freedom of Information request for access to your departmental files will be completed and copies sent to you in March 2008. I understand that once you have seen and considered the contents of your files you may or may not wish to proceed with annotating them as suggested in earlier discussions.
While I am not able to discuss the particulars of your ex-fiancée’s visa application, I am able to reiterate that it did not involve any ‘findings’ or ‘rulings’ by the Department as to your conduct.
I trust that you will be able to continue to engage positively with departmental staff in order to complete your FOI request and, if necessary, annotate your files with a form of words which adequately address your concerns.
Thank you for bringing your concerns to my attention.”
38. The Tribunal is not satisfied that the personal information about the applicant contained in that document is, in any respect, incorrect or misleading, within the meaning of s 50(1)(b) of the FOI Act.
Document dated 26 May 2008
39. This document is a letter from Senator Chris Evans, Minister for Immigration and Citizenship to the applicant which states as follows:
“ Thank you for your letter of 2 May 2008, concerning your request for review of your former partner’s permanent residence application.
My Department was required to assess your former partner’s claim that she had been the victim of relevant domestic violence against the legal criteria for the grant of a visa as set out in the Migration Regulations 1994. While I am unable to discuss the contents of files other than your own, I can confirm that the Department is not required to make any finding about the person alleged to have committed the domestic violence in respect of an applicant’s claim. However, at the time your former partner’s application was finalised, the Department was legally obliged to accept the findings of the experts who provided statutory declarations in support of her application.
I note that the Freedom of Information Section is continuing to process your file access request and that to date you have received two sections of information.
Thank you for bringing this matter to my attention.”
40. The Tribunal is not satisfied that the personal information about the applicant contained in that document is, in any respect, incorrect or misleading, within the meaning of s 50(1)(b) of the FOI Act.
Document dated 22 February 2009
41. This document is a copy of a letter from Senator Chris Evans, Minister for Immigration and Citizenship to the Hon Julie Bishop MP, Member for Curtin which states as follows:
“ Thank you for your letter of 13 January 2009 concerning representations to your office from Mr David Jack.
Whilst I appreciate Mr Jack’s desire to have my Department’s records amended to reflect that he was not ‘a perpetrator of domestic violence’ against his former partner, it is not possible to comply with his request. As indicated in previous correspondence from the Department to Mr Jack, under the Archives Act it is not possible to remove or expunge information from files. However, I am advised that an interim clarification statement has been made on both Mr Jack’s and Ms H…’s records, with wording agreed by Mr Jack. I also understand that Mr Jack has appealed the Department’s decision to not amend departmental records to the Administrative Appeals Tribunal.
In relation to Mr Jack’s request to review his former partner’s visa application, he has already received a formal response from the Department indicating that as per his letter of 17 April 2007 from the Acting Ombudsman, Ms H…’s case was decided according to the law as it then stood. The requisite evidence, which demonstrated that the criteria were met, was made available to the Department and a decision was made consistent with it. Therefore this matter is finalised and the Department will not be undertaking any further review of this matter.
There have been numerous written responses on Mr Jack’s matter from myself, the Department and the former Minister. We are unable to provide any additional advice regarding the matters that have been raised.
Thank you for bringing this matter to my attention.”
42. The Tribunal notes that that document postdates the decision under review in this matter and is, accordingly, not within the scope of the present application for review. The Tribunal also notes, however, that there is no basis on which it could be satisfied that the personal information about the applicant contained in that document is, in any respect, incorrect or misleading, within the meaning of s 50(1)(b) of the FOI Act.
Document dated 14 May 2009
43. This document is a copy of a letter from Senator Chris Evans, Minister for Immigration and Citizenship to the Hon Julie Bishop, Member for Curtin which states as follows:
“ Thank you for your letter of 24 March 2009 concerning further representations to your office from Mr David Jack.
As I advised in my previous correspondence, an interim clarification statement, with wording accepted by Mr Jack, has been included in his and Ms H…’s records. However, as I also indicated, my Department is not able to amend existing departmental records. Therefore, the Department has done everything it can to address Mr Jack’s concerns within the legal framework prescribed under the Archives Act, Privacy Act and the Freedom of Information Act.
I understand that Mr Jack does not accept the Department’s decision that it cannot amend his departmental records and is so appealing the Department’s decision to the Administrative Appeals Tribunal. It is therefore not appropriate for me to comment any further.
I hope this information has been of assistance.
Thank you for bringing this matter to my attention.”
44. The Tribunal notes that that document postdates the decision under review in this matter and is, accordingly, not within the scope of the present application for review. The Tribunal also notes, however, that there is no basis on which it could be satisfied that the personal information about the applicant contained in that document is, in any respect, incorrect or misleading, within the meaning of s 50(1)(b) of the FOI Act.
The category 2 documents
45. There are 7 documents in this category and the Tribunal will consider each of those documents in chronological order.
Document dated 27 August 2004
46. This document is a letter from Wendy Durston, Residence Section, Department of Immigration and Multicultural and Indigenous Affairs to the applicant which states as follows:
“ Thank you for your letter dated 12 August 2004 in which you ask for answers to specific questions in relation to your ex-partner’s application for a spouse visa.
I understand your concerns about your situation. However, as advised in my letter dated 6 August 2004, Australia’s privacy laws prevent me from providing information about your ex-partner’s application without her consent. Therefore, it is not possible to answer question 1 what are the nature of allegations against you?
The Freedom of Information Act 1982 gives a person the right to obtain access to documents held by Commonwealth Government agencies. I have forwarded your letter to the Freedom of Information Unit in our Canberra office for consideration under the FOI Act of whether you are able to access any of the information you have requested.
It is possible for you to provide information relevant to an application at any time. However, as also explained in my previous letter, if a visa applicant has provided legally acceptable evidence of domestic violence there is no legal basis to further investigate the substance of their claims to have suffered domestic violence or to take into consideration information offered by other people. This means that the information you have offered to provide on this matter can not be taken into account in the assessment of your ex-partner’s application. For this reason, if there was a claim of domestic violence, the answer to both questions 2 can you refute the allegations, and 3 can you appeal the findings, is ‘no’ and the answer to question 4 why were you not interviewed is ‘your evidence would not have been a relevant consideration’.
In answer to your question 5 about the fairness and impartiality of applications I can assure you that all applications are carefully considered against legislative requirements and policy guidelines before a decision is made on whether or not to grant a visa.
I trust this information will assist you to understand Australia’s immigration laws.”
47. The Tribunal is not satisfied that the personal information about the applicant contained in that document is, in any respect, incorrect or misleading, within the meaning of s 50(1)(b) of the FOI Act.
Document dated 15 December 2004
48. This document is the document referred to in paragraph 23 above. The Tribunal reiterates its statement in paragraph 24 above regarding the information contained in that document.
Document dated 27 January 2005
49. This document is a letter from Sarah Dinning, Director, Values and Conduct Section, Department of Immigration and Multicultural and Indigenous Affairs to the applicant which states as follows:
“ I refer to your complaint about the conduct of departmental employees [3 named persons], dated 23 November 2003, concerning:
·Your treatment as a sponsor of Ms H…’s visa application;
·The relationship between [a named departmental officer] and Ms H…; in particular Ms H…’s attendance at a social function at [the officer’s] invitation;
·Advice you received from departmental investigators in the context of your prosecution for making a false statement; and
·Allegations that departmental investigative officers solicited benefits from witnesses during the course of an investigation.
The department’s Values and Conduct Section conducted an investigation into the Code of Conduct and criminal matters raised by your allegations. As part of that investigation you and a number of witnesses were interviewed by investigators from the Values and Conduct Section. The investigators prepared a report with recommendations that was referred to the department’s Internal Investigations Steering Committee on 10 December 2004.
After considering the investigation report, the Committee concluded that there was no evidence supporting the allegation that departmental staff had solicited benefits from a witness. With the (sic) respect to your allegation that [the officer] invited Ms H… to a social function, the Committee determined that there was no evidence of a relationship between [the officer] and Ms H… during the processing of Ms H…’s visa application that would constitute a conflict of interest.
The investigator’s report recommended that there was insufficient evidence to make a finding of a breach of the Code of Conduct with respect to the advice you allege was given to you by [an officer] in the context of his investigation of you making a false statement.
You raised a number of matters concerning your treatment by [the officer] as a case officer for Ms H…’s visa application including [the officer’s] demeanour during an interview with you and her failure to respond to telephone calls. These matters were considered as part of the conduct investigation but there is insufficient evidence to suggest a breach of the Code of Conduct had occurred. These matters will be referred to the Perth office to be considered in relation to the department’s client service obligations.
I regret that I am unable to provide you with information about the evidence that lies behind the conclusions drawn by the investigators. That information is subject to the Privacy Act and to release it may breach the privacy of witnesses and other people associated with the investigation.
When you spoke to me on 15 December 2004, you asked me to advise you of any review rights in relation to department’s handling of your complaint about the conduct of departmental staff. I understand that you have referred the matter to the Ombudsman and have no further advice I can give in relation to review options.
You asked to speak to investigator, Mr Nicholas Eid. You have corresponded with Mr Eid since the investigation on a number of occasions and Mr Eid has responded. Mr Eid no longer works in the Values and Conduct Section and has no ongoing involvement in this matter. He would not be in a position to tell you anymore than I did in our telephone discussion. Accordingly, I have not requested Mr Eid to contact you.
I would like to assure you that the department takes allegations of misconduct by its staff very seriously and puts considerable resources into investigating allegations, training staff on conduct and ethical issues and responding to systemic issues raised by allegations. Your allegations have been fully investigated, however, the department can only take action against employees who are alleged to have engaged in misconduct when there is substantiated evidence of such misconduct.”
50. The Tribunal is not satisfied that the personal information about the applicant contained in that document is, in any respect, incorrect or misleading, within the meaning of s 50(1)(b) of the FOI Act.
Document dated 20 February 2006
51. This document is a copy of a letter from Louise Gray, A/g Deputy Secretary, Department of Immigration and Multicultural Affairs to Ms Mary Durkin, Senior Assistant Ombudsman which states as follows:
“ I am writing in response to your letter of 22 November 2005 to Mr Correll regarding the investigation into the complaint from Mr David Jack in respect of actions of the Values and Conduct section of the Department. A detailed response to your preliminary views and suggestions is attached.
On the basis of the available information, the Department agrees with your preliminary views and recommendations and our response indicates what remedial action has been, or will be, taken. It is evident that there were elements of unsatisfactory administrative practice in this matter, particularly in respect of the treatment of clients, privacy, adherence to proper procedures and the conduct of interviews.
As you are aware, the Department is determined to ensure that clients are treated fairly and reasonably. Amongst the positive steps already taken by the Department in relation to a number of the issues raised in the investigation is the issuing of a comprehensive set of guidelines (The National Fraud Investigations Guidelines) to all investigations staff in September 2005.
The issues raised by the Jack complaint and its link to the way staff exercise their powers will be put on the agenda for discussion by the new Values and Standards Committee to ensure that this is adequately covered in departmental instructions, guidance and training on conduct, client service and lawful decision making. It will be included in the revision of the administrative circular on the Code of Conduct that is already underway.
The Department will apologise to Mr Jack and Ms M… for breaches of their privacy and will consider whether it is appropriate to compensate Mr Jack for the way he was treated by departmental officers. We will write separately to Mr Jack inviting him to lodge a claim for consideration.
I trust that our comments will be taken into account in your pursuit of this matter. …”
52. The Tribunal is not satisfied that the personal information about the applicant contained in that document is, in any respect, incorrect or misleading, within the meaning of s 50(1)(b) of the FOI Act.
Document dated 8 March 2007
53. This document is a copy of a letter from Andrew Metcalfe, Secretary, Department of Immigration and Citizenship to Dr Vivienne Thom, Acting Commonwealth and Immigration Ombudsman which states as follows:
“ I am writing in regard to Prof McMillan’s letter of 18 October 2006 concerning his suggestion about appropriate remedial action in respect of the complaint by Mr David Jack.
As previously advised, the department acknowledges and remains of the view that Mr Jack’s matter was not handled well by departmental officers. It is evident that there were elements of unsatisfactory administrative practice in the case, particularly in respect of the inappropriate disclosure of personal information about Mr Jack, adherence to proper procedures and the conduct of interviews. The department has apologised to Mr Jack for the breach of his privacy and has written to him inviting him to lodge a claim for compensation for the way he was treated by departmental officers.
I appreciate your concerns about the administrative issues in this case, however, I am satisfied that the process for considering allegations of domestic violence in relation to a spouse visa (as set out in regulations) was followed. The process for meeting non-judicially determined domestic violence claims is:
· provision of a statutory declaration by the alleged victim which sets out the allegations and names the person alleged to have committed it; and
· provision of two statutory declarations, completed by competent persons ( a list of authorised competent persons is defined in the Migration Regulations) in two different professions, that sets out the evidence on which they have based their opinion that domestic violence occurred and names the person alleged to have committed it.
I have been informed that Ms H… met these requirements.
For these reasons, I do not believe that it would be appropriate to place a copy of your letter on Ms H…’s visa file for future reference by departmental officers, as she would not be aware of its existence. The department agrees however, to place a copy of your letter on Mr Jack’s file, as it reflects the outcome of the investigation of his complaint, as well any (sic) other letter Mr Jack would like to write on the subject.
…”
54. The Tribunal is not satisfied that the personal information about the applicant contained in that document is, in any respect, incorrect or misleading, within the meaning of s 50(1)(b) of the FOI Act.
Document dated 13 July 2007
55. This document is the document referred to in paragraph 27 above. The Tribunal reiterates its statements in paragraph 28 above regarding the information contained in that document.
Document dated 16 October 2007
56. This document is a copy of a letter from the Hon Kevin Andrews MP, Minister for Immigration and Citizenship to the Hon Julie Bishop MP, Member for Curtin which relevantly states:
“ Thank you for representation (sic) of 11 September 2007 on behalf of Mr David Jack concerning his complaint against my Department.
As you are aware, the Department and the Commonwealth and Immigration Ombudsman have been dealing with Mr Jack’s case for several years. Mr Jack has been advised by the Department on a number of occasions that the Ombudsman’s office investigated his complaint and, in light of the Department’s response to their enquiries, advised that there was nothing further they could do to assist him and that the investigation was closed.
In respect of Mr Jack’s request to meet with the Ombudsman to discuss his case, I understand that the Ombudsman’s office indicated that they did not think that a meeting would serve any worthwhile purpose. Given that the Ombudsman, as the independent arbiter on the matter, expressed this view, and that the Department has fully considered his case, I do not propose to meet with Mr Jack.
The Department has acknowledged that there were administrative deficiencies in departmental actions relating to Mr Jack’s case, apologised for the way that he was treated by departmental officers and in May 2006 invited him to lodge a claim for compensation. However, the Department maintains that the correct processes were followed in the consideration of the domestic violence claims made against Mr Jack and that, as the A/g Ombudsman indicated in her letter of 17 April 2007 to Mr Jack, the domestic violence case was decided according to the law as it then stood. The requisite evidence, which demonstrated that the criteria were met, was made available to the Department and a decision was made that was consistent with it.
With regard to his request that references to findings against him concerning domestic violence be removed from departmental records, Mr Jack has been advised several times that the records are official records and therefore cannot be removed from file or destroyed. Under the Archives Act 1983 it is not possible to remove or expunge information from files. However, Mr Jack was advised that his records could be annotated to reflect the concerns he had raised in relation to the allegations made against him and the way he believed his case had been handled by the Department. The Department agreed to place on Mr Jack’s file a copy of the Ombudsman’s letter of October 2006 which reflects the outcome of their independent investigation of his complaint, as well as any other letter from him on the matter, an offer which remains open to him.
…”
57. The Tribunal is not satisfied that the personal information about the applicant contained in that document is, in any respect, incorrect or misleading, within the meaning of s 50(1)(b) of the FOI Act.
The category 3 documents
58. There are 6 documents in this category and the Tribunal will consider each of those documents in chronological order.
Document dated 27 August 2004
59. This document is the document referred to in paragraph 46 above. The Tribunal reiterates its statement in paragraph 47 above regarding the information contained in that document.
Document dated 28 October 2004
60. This document is the document referred to in paragraph 21 above. The Tribunal reiterates its statement in paragraph 22 above regarding the information contained in that document.
Document dated 8 March 2007
61. This document is the document referred to in paragraph 53 above. The Tribunal reiterates its statement in paragraph 54 above regarding the information contained in that document.
Document dated 13 August 2007
62. This document is the document referred to in paragraph 29 above. The Tribunal reiterates its statement in paragraph 30 above regarding the information contained in that document.
Document dated 26 May 2008
63. This document is the document referred to in paragraph 39 above. The Tribunal reiterates its statement in paragraph 40 above regarding the information contained in that document.
Document dated 22 February 2009
64. This document is the document referred to in paragraph 41 above. The Tribunal reiterates its statements in paragraph 42 above regarding that document.
Conclusion
65. Although the applicant did not claim that any of the abovementioned documents contain personal information about him that is incomplete or out of date, the Tribunal, for the sake of completeness, notes that it is not satisfied that any of those documents contain personal information about the applicant that is incomplete or out of date, within the meaning of s 50(1) (b) of the FOI Act.
66. The Tribunal concludes, therefore, that, with the exception of the error in the document dated 13 July 2007 specified in paragraph 28 above, it is not satisfied that any of the abovementioned documents (included in Exhibit A2), which are within the scope of the present application for review – namely, all of the abovementioned documents, with the exception of the document dated 22 February 2009 and the document dated 14 May 2009 (see paragraphs 41-44 above) – contain personal information about the applicant that is “incomplete, incorrect, out of date or misleading”, within the meaning of s 50(1)(b) of the FOI Act. It follows from that conclusion that, in accordance with s 50(1) of the FOI Act, the record of such information kept by the Department, other than the abovementioned erroneous record of information contained in the document dated 13 July 2007, cannot be amended.
67. The Tribunal notes that an “agreed notation”, prepared by the Department in consultation with the applicant, has been placed on all the Department’s files relating to the applicant (see paragraph 13 above). The applicant indicated at the hearing, however, that he was not satisfied with the contents of that notation and that he wanted certain statements to be added to it. The Tribunal notes, in this connection, that it remains open to the applicant to make an application, in accordance with s 51A of the FOI Act, to the Department for annotation of records of personal information about him kept by it.
Decision
68. For the above reasons the Tribunal varies the decision under review by determining that the record of information contained in the document dated 13 July 2007 should be amended as stated in paragraph 28 above. In all other respects, the Tribunal affirms the decision under review.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: ...............[sgd D Brodie]........................
Associate
Date of Hearing 30 June 2009
Date of Decision 28 July 2009
Representative of the Applicant Self-represented
Counsel for the Respondent Ms S Oliver
Solicitor for the Respondent Australian Government Solicitor
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