Kwok and Minister for Immigration and Multicultural Affairs

[2001] AATA 799

DECISION AND REASONS FOR DECISION [2001] AATA 799

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No  N2001/694

GENERAL ADMINSTRATIVE DIVISION           )          

Re      YIN FONG KWOK  

Applicant

And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal       Senior Member M D Allen

Date7 September 2001

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL  )         No   N2001/694

)  
GENERAL ADMINISTRATIVE DIVISION     )

Re:       YIN FONG KWOK
  Applicant

And:     MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal              Senior Member M D Allen

Date  7 September 2001

Place                   Sydney

DecisionUPON hearing Mr Karp of Counsel for the Applicant and Mr Peek the Solicitor for the Respondent, for the reasons given orally at the conclusion of the hearing in this matter the decision under review is AFFIRMED.  

(Sgd)  M.D. ALLEN

.............................

Senior Member
CATCHWORDS

FREEDOM OF INFORMATION: Whether documents exempt documents by virtue of provisions in the Migration Act 1958.

Freedom of Information Act 1982 – s38

Migration Act 1958 – s503A

REASONS FOR DECISION

Senior Member M D Allen

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

1. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

1. The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen

Signed:         Kwai-Ling Wong
          ..................................................................................……………………………….

Associate

Date of Hearing  7 September 2001
Date of Decision  7 September 2001

Counsel for Applicant                 Mr Leonard Karp        
Solicitor for Respondent            Mr Greg Peek, Australian Government Solicitor

DRAFT DECISION  

ADMINISTRATIVE APPEALS TRIBUNAL

MATTER NO N2001/694
BY MR M.D. ALLEN, SENIOR MEMBER
KWOK AND MINISTER FOR IMMIGRATION &
MULTICULTURAL AFFAIRS
SYDNEY, 7 SEPTEMBER, 2001

MR ALLEN: Yes. In this matter the applicant has made a request pursuant to the Freedom of Information Act seeking certain documents from the Department of Immigration and Ethnic Affairs. The specific request related to information obtained from the government, The People's Republic of China, respecting the applicant. It is common ground that the applicant was refused a visa and one of the grounds of refusal was the material forwarded to the respondent from the government agencies of The People's Republic of China.

The applicant, it seems to me, has the right to bring an application under the Freedom of Information Act 1982 to seek production of those documents. However, paragraph 381(b)(2) of the Freedom of Information Action states inter alia a document is an exempt document if information by the provision of section 38 itself, or by another provision of any other enactment creates a document an exempt document. That is to say a document which is exempt from production under the Act.

Section 503A of the Migration Act 1958, as amended, reads inter alia subsection 3:

The minster may by writing declare that subsection 1 or 2 does not prevent the disclosure of specified information  in specified circumstances to a specified minister, a specified Commonwealth officer, a specified court, or a specified tribunal.  However, before making the declaration the minister must consult the gazetted agency from which the information originated.

There is, in this matter, no such declaration by the minister.

Subsection 8 of section 503A provides:

If any Act whether passed before or after the commencement of this section provides information to be given.  That Act has effect subject to this section unless that Act expressly provides otherwise.

It is clear to me that the Freedom of Information Act 1982 does not provide otherwise. Although some distinction has sought to be

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drawn between documents and information contained therein, it strikes me as a distinction without a difference.

There is very little point in providing to an applicant a blank sheet of paper. As far as I am concerned the provisions of section 503A are mandatory and pursuant to paragraph 381(b)(2) of the Freedom of Information Act the documents are exempt from production under that Act and therefore the application is dismissed.

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