Grass and Department of Immigration and Citizenship

[2011] AATA 694

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] aata 694

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/2387

GENERAL ADMINISTRATIVE  DIVISION		)
Re		CORAZON GRASS

Applicant

And DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal  Ms N Bell, Senior Member

Date 06 October 2011

PlaceSydney

Decision The Tribunal has no jurisdiction to entertain the review sought by Ms Grass in her application lodged on 20 June 2011.

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Ms N Bell
  Senior Member  

CATCHWORDS

FREEDOM OF INFORMATION – Jurisdiction – Section 57A – Application where review by the Information Commissioner not sought – Application for review of a decision or declaration by the Information Commissioner – Request for amendment of records – Falls outside the jurisdiction of the Tribunal.

Freedom of Information Act1982 s 57A

REASONS FOR DECISION

06 October 2011 Ms N Bell, Senior Member

1.On 20 June 2011 Corazon Grass lodged an application with The Tribunal for review.  Under the heading “Decision” in the Tribunal application form, Ms Grass wrote:

“By request to …(indecipherable) FOI to have my personal information amended in December 2010 and again in May 2011 has not been responded to by … (indecipherable).  Other FOI requests have not been processed. Refer attached requests.”

2.No date of decision or date of notice of decision was given by Ms Grass on the application form.  The documents attached to the application were copies of a request for amendment of personal information dated 8 December 2010 and a letter from the Director of the FOI and Privacy Section of the Department of Immigration and Citizenship dated 7 December conveying a decision after internal review.

3.The Department of Immigration and Citizenship responded that the Tribunal has no jurisdiction in relation to Ms Grass’ application because section 57A of the Freedom of Information Act1982 provides that an application may only be made to the Tribunal for review of a decision or declaration by the Information Commissioner or where the Information Commissioner has decided not to undertake a review on the basis that it is desirable for the Tribunal to undertake a review.  Ms Grass has not sought review by the Information Commissioner and, it was submitted by the Department, there is no provision for her to directly seek review of a decision by the Tribunal.

4.Section 57A of the Act commenced on 1 November 2010. Only decisions on applications under the FOI Act made prior to 1 November 2010 may be made other than in accordance with section 57A.

5.The request under the FOI Act referred to by Ms Grass in her application to the Tribunal was identified by her as having been made in December 2010 and May 2011.  There is no evidence of her having sought a review by the Information Commissioner before her application to the Tribunal on 20 June 2011.

6.Ms Grass responded that while the request made by her in December 2010 may be outside the jurisdiction of the Tribunal, that letter (dated 8 December 2010) made reference to a request that had been made under the FOI Act on 21 July  2010 and her present application to the Tribunal should be taken to be a request for review of the Department’s decision on her 21 July 2010 FOI request.

7.The terms of Ms Grass’ request of 8 December, the request identified in her application to the Tribunal, were:

“In reference to our recent phone conversations and FOI request I wish to request with my wife Corazon Grass’s authority that her personal information( ie her incorrect date of birth of 1954 )be urgently amended to her correct year date of birth of 1966 on DIAC’s data base …” [sic]

8.The remainder of the letter raises grounds for the request for amendment.

9.I can see no basis on which the above request could be taken to be anything but a request for amendment of records. It is clearly made after the commencement of section 57A of the Act and any request for review of any decision made, or deemed, should be made to the Information Commissioner. It follows that it falls outside the jurisdiction of the Tribunal.

10.In any event, even if the 8 December letter were to be taken in the way sought by Ms Grass or even if Ms Grass were to be allowed to amend her application to the Tribunal so that it became an application for review of the decision made on her 21July 2010 FOI request, I am advised by the Department that decisions have been made on that request and those decisions have been the subject of an internal review.  The Department has advised that on 7 December 2010, after internal review, a decision was made to release the requested documents in full.

11.Given the lack of precision and the confusion that would likely ensue, it is not appropriate to allow Ms Grass to amend her current application to the Tribunal for review for the purpose of challenging the Department’s decision of 7 December.  It remains open to Ms Grass to make an application to the Tribunal for review of the Department’s decision of 7 December 2010 if she considers that access to all of the documents to which her request related has not actually been granted. 

Decision

12.The Tribunal has no jurisdiction to entertain the review sought by Ms Grass in her application lodged on 20 June 2011.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed: ....................[sgd]..........................................................
  Casey Comans, Associate

Dates of Hearing  12 August 2011
Date of Decision  06 October 2011
Representative for the Applicant               Mr John Grass (husband)
Solicitor for the Respondent  Ms Emily Baggot, DLA Piper