Gallagher and Secretary, Department of Immigration and Border Protection (Freedom of Information)
[2016] AATA 1060
•13 October 2016
Gallagher and Secretary, Department of Immigration and Border Protection (Freedom of Information) [2016] AATA 1060 (13 October 2016)
Division
FREEDOM OF INFORMATION DIVISION
File Number(s)
2015/5528
Re
Mary Gallagher
APPLICANT
And
Secretary, Department of Immigration and Border Protection
RESPONDENT
DECISION
Tribunal The Hon. Dennis Cowdroy OAM QC, Deputy President
Date 13 October 2016 Date of written reasons 21 December 2016 Place Sydney The decision of the Australian Information Commissioner dated 28 September 2015 is set aside and is hereby substituted as follows:
Document 1 (Folios 23-40) is exempt, subject to the definition on page 1 (Folio 23), and subject to paragraph 4, with the exemption being maintained in respect of a file number in line 1 of paragraph 4.
Document 2 (Folios 41-57) is exempt, subject to the definition on page 1 (Folio 41), and subject to paragraph 4, with the exemption being maintained in respect of a file number in line 1 of paragraph 4.
Document 3 (Folios 1-22) is exempt, subject to the 8th word on the 1st line, the 14th word on the 2nd line and the 16th word on the 4th line of Folio 2.
...............................[sgd].........................................
The Hon. Dennis Cowdroy OAM QC, Deputy President
Catchwords
FREEDOM OF INFORMATION – access to documents – public interest conditional exemptions – deliberative processes - personal privacy - whether unreasonable disclosure of personal information – refugee status assessments - decision under review set aside and substituted
Legislation
Freedom of Information Act 1982 (Cth) ss 11A(5), 47C, 47E(d), 47F
REASONS FOR DECISION
The Hon. Dennis Cowdroy OAM QC, Deputy President
21 December 2016
On 6 October 2014, the Applicant applied to the Department of Immigration and Border Protection (the Department) for access to the following:
Written exchanges between [three named departmental officers] and the quality assurance officer [identified by name] relating to quality assurance of their refugee status asylum seeker decisions over the period February-June 2010
The application was declined in part. On 22 October 2014 an officer of the Department decided to release documents to the Applicant with certain exemptions claimed in respect of them based upon ss 47F(1) and 47E(d) of the Freedom of Information Act 1982 (Cth) (the Act). The records identified as relevant to the request consisted of two draft refugee status assessments (RSA) decision records and internal mail correspondence.
On 14 November 2014 the Applicant sought review of the decision by the Office of the Australian Information Commissioner (OAIC) pursuant to s 54L of the Act. On 28 September 2015 the acting Australian Information Commissioner varied the decision in certain respects.
However as is made clear by the Applicant’s ‘Response to the Respondent’s Statement of Facts and Contentions’, now filed in these proceedings, the scope of the documents which is now sought under her freedom of information application have been substantially reduced. The Applicant states that on 9 October 2014 she informed the departmental officer in charge of applications under the Act, Mr Hocking, that the written exchanges which she sought were qualified by the following:
In relation to a previous FOI request, which I made about this matter FA14/01/00380, you advised me on 21/2/14 that you had received material from these officers which might be within the scope of my request. I am seeking access to this material.
Accordingly the scope of the documents sought by the Applicant is limited to only those communications, in the period between February and June 2010, which were held by Mr Hocking. The Applicant says she limited her claim on this basis because of the expense involved in obtaining the records which she initially sought.
The Applicant has provided extensive written submissions concerning the basis for her request. As a senior officer in the Department, she states that she became aware that there appeared to be a change in the policy of the Department when processing refugee status decisions. Initially the officer making the decision was not required to consult with, or deliberate with others, before that decision was made. However the Applicant states that she received complaints from officers that they were being “pressured” or “feeling pressured” by other officers to make decisions having a nominated outcome. She states that officers were required to submit their draft decisions for consideration by the senior officer. She also states that she overheard heated conversations between the senior officer and the officer who had made the draft report. The Applicant considers that such interference is a fundamentally wrong approach; that the Australian Government remains a signatory to the United Nations’ Convention and Protocol Relating to the Status of Refugees and that in accordance with migration legislation, assessing officers alone would determine whether a claimant was a refugee as defined. That is, the obligation on the assessing officer was to make a lawfully correct and preferable decision; it was not to deliver a decision in accordance with “government expectations”.
The Applicant has nominated the senior Quality Assurance Officer (QA Officer) who she maintains was principally involved in ensuring that assessing officers made their decisions in line with “government expectations”. The Applicant states that in respect of certain groups of refugees, whereas there had been a substantial finding that the applicants were genuine refugees, the data showed that there was a reversal in approval rate by up to 60-80 per cent by September 2010.
The Applicant refers to an affidavit relied upon by the Respondent, namely the affidavit of Cassie Carson, sworn on 16 March 2016. The Applicant maintains that initially there were no formal written guidelines when a boat unit was created in New South Wales and that officers who visited Christmas Island initially would report their refusal decisions and that there was a perceived general underlying reluctance to refuse cases. However, that practice changed.
The Applicant contends that the public interest in Australia is clearly served by the operation of a refugee determination process which assesses the claims of asylum seekers “within a legislative process which is open and transparent and which adheres to the principles of natural justice and procedural fairness”. The Applicant maintains that such a process is not available due to repeated incidents which she says she observed whereby an officer was challenged by the QA Officer. The Applicant stated she explained her concerns to other officers at the time. Further, the Applicant contends that it is “more likely than not that RSA decisions made by a number of officers during the period February-June 2010 were subject to undue influence and pressure by the Quality Assurance Officer” and that as a result, “many asylum seekers, including many minors, remained in detention for far longer (generally between 12-18 months) than would otherwise have been the case”.
The Applicant maintains that it is in the public interest that the agency which is charged with the responsibility of properly and efficiently considering and evaluating claims for protection should be accountable and that the integrity of the decision-making process is flawed by virtue of the interference by others in the decision-making process. She maintains that the decision-maker alone should be left to make the decision rather than have interference from another person or from a group of persons where groups meet to determine applications.
Legislative provisions
This decision is, in effect, supplemental to another decision (see Gallagher and Secretary, Department of Immigration and Border Protection [2016] AATA 1025) involving the same parties. This decision should be read in conjunction with that decision. Accordingly, the Tribunal will not repeat the formal parts, and will proceed directly to the issues.
In opposition to the current application, the Applicant relies upon the provisions of ss 47C and 47F of the Act.
The applicable statutory provisions concern the operation of s 47C: Public interest conditional exemptions - deliberative processes, which provides:
General rule
(1) A document is conditionally exempt if its disclosure under this Act would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place in the course of, or for the purposes of, the deliberative processes involved in the functions of:
(a) an agency; or..."
The Applicant has provided evidence of practices that existed in the Department whilst she was one of its officers. Such information, whilst comprising a historical narrative, is not germane to the issues now before the Tribunal. Nevertheless, the Tribunal has considered the issues raised in both the written and oral submissions.
In substance, the Applicant seeks information which could consist of emails relating to a proposed decision, draft decisions and memoranda concerning those decisions. Each of such documents readily are, or are used in deliberations in the course of a deliberative process. Accordingly, under s 47C conditional exemption is established.
Another ground is relevant to the current application, namely the provisions of s 47F, public interest conditional exemptions - personal privacy, which provides:
General rule
(1) A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
The term "personal information" is stated in s 4 of the Act to include information about a person whose identity is apparent, or can reasonably be ascertained from the information or opinion. The Tribunal accepts submissions of the Respondent that the disclosure could involve personal information concerning a refugee. The Applicant asserts that the name of the refugee could be redacted. However there may be other factors in information which could make it possible to identify the refugee, so redaction of the name alone is insufficient to protect the personal information of that person. Further, the information could be personal to the author of the correspondence or draft report or other document to which access is sought. In the circumstances, even if the name of that person were redacted, it might be possible, by virtue of other information, to identify that person. Accordingly the Tribunal finds that this section is also applicable and provides a valid exemption from disclosure.
Section 11A(5) provides that the "agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest". The term "public interest" is considered in s 11B of the Act.
The Respondent accepts that it bears the onus of establishing that the exemptions are justified under s 47F(1), namely that disclosure would involve the unreasonable disclosure of personal information about a person including a deceased person; and under s 47E(d), namely that disclosure would have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.
During the hearing of this application, the documents in issue were refined, and comprised three separate categories, which I shall, for convenience, refer to as:
·Document 1 (Folios 23-40; T10, 64-81);
·Document 2 (Folios 41-57; T10, 82-98), and;
·Document 3 (Folios 1-22; T10, 42-63).
Document 1
Exemption is claimed under s 47C(1), namely that the document, if disclosed, would disclose matter in the nature of or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place in the course of, or the purpose of, the deliberative processes involved in the functions of:
(a) an agency...
Document 2
It is claimed that such documents fall outside of the request made under the Act because s 22(1)(a)(ii) renders the document irrelevant.
Document 3
This document contains various emails, portions of which are not exempt.
Document 3 can be categorised as follows:
(i)parts of folios 1, 2, 5, 9, 15 and 16 are not exempt under s 47F;
(ii)parts of folios 6 and 7 are irrelevant as they fall outside the scope of the request; and
(iii)folios 12 - 14 are exempt under s 47C (T10, 53–55).
FINDINGS
The Tribunal has considered the documents over which exemption is claimed and makes the following findings, which, for convenience, are provided in summary form.
Document 1
The Respondent does not press the introduction to the RSA commencing with the word "Definition" to the words "return to it”; nor material before the RSA officer, except the file number. Otherwise, the Tribunal finds that s 47C(1) applies to the RSA.
Document 2
Exemption is not pressed by the Respondent in respect of the ‘Definition’, and material before the RSA officer is not exempt from production, except the matter number, as disclosure of such number would enable identification of persons and compromise personal information: accordingly s 47F applies to exempt such details.
The remainder of the document was claimed by the Respondent to be irrelevant, because it was outside of the time scope nominated by the Applicant. However, this information was contained in an attachment to an email dated 7 February 2014.
The RSA report and its accompanying email falls within the relevant period. Therefore, by incorporation, it is included in the documents to be produced, and is, subject to the matters referred to hereunder, susceptible to production.
The Respondent submits that there is another ground of exemption applicable, namely the operation of s47C: the email relates to a deliberative process involving refugee details, and the Tribunal upholds the exemption in respect of such information.
Document 3
Parts of folios 1, 2, 5, 9, 15 and 16 are not exempt. Section 47C(1) applies to folios 12-14; s 47F applies to folio 2.
CONCLUSION
For the above reasons, the decision of the Australian Information Commissioner dated 28 September 2015 is set aside and is hereby substituted as follows:
·Document 1 (Folios 23-40) is exempt, subject to the definition on page 1 (Folio 23), and subject to paragraph 4, with the exemption being maintained in respect of a file number in line 1 of paragraph 4.
·Document 2 (Folios 41-57) is exempt, subject to the definition on page 1 (Folio 41), and subject to paragraph 4, with the exemption being maintained in respect of a file number in line 1 of paragraph 4.
·Document 3 (Folios 1-22) is exempt, subject to the 8th word on the 1st line, the 14th word on the 2nd line and the 16th word on the 4th line of Folio 2.
I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of the Hon. Dennis Cowdroy OAM QC, Deputy President
............................[sgd]..........................................
Associate
Dated 21 December 2016
Date(s) of hearing 14 March, 7 & 13 October 2016 Applicant In person Solicitors for the Respondent Australian Government Solicitor
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