Lobo and Minister for Immigration and Citizenship
[2007] AATA 1038
•1 February 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1038
ADMINISTRATIVE APPEALS TRIBUNAL N°V2006/259
GENERAL ADMINISTRATIVE DIVISION Re: PHILIP LOBO AND JOYCE LOBO AND
REENA LOBO AND RITSHIKA LOBOApplicant
And:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal:Mr Egon Fice, Member
Date:1 February 2007
Place:Melbourne
Decision:The Tribunal does not recommend to the Attorney-General that the costs of the applicants in relation to these proceedings be paid by the Commonwealth.
(sgd) Egon Fice
Member
FREEDOM OF INFORMATION – costs of application for review – exercise of discretion to recommend payment of costs by the Commonwealth – whether application successful or substantially successful
Administrative Appeals Tribunal Act 1975
Freedom of Information Act 1982
Cashman & Partners v Secretary, Department of Human Services and Health (1995) 61 FCR 301
Department of Public Prosecutions v Smith [1991] 1 VR 63
Re Cosco Holdings Pty Ltd and Department of Treasury (1999) 54 ALD 466
Re Hounslow and Department of Immigration and Ethnic Affairs 7 ALN N362
Re Lianos and Department of Social Security(N°2) (1985) 9 ALD 43
Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367
REASONS FOR DECISION
1 February 2007 Mr Egon Fice, Member
1. On 21 October 2005 Philip Lobo, Joyce Lobo, Reena Lobo and Ritshika Lobo (the applicants) requested that the Minister for Immigration and Citizenship (the Minister) release all documents relevant to their Federal Court of Australia application in respect of a business visa. Dissatisfied with the response of the Minister, the applicants sought an internal review under s 54 of the Freedom of Information Act 1982 (the FOI Act).
2. On 23 February 2006 the internal review officer noted a number of files which had not previously been identified as being relevant to the request. The review officer agreed to release some documents but maintained full and partial exemptions in respect of other documents.
3. Dissatisfied with the outcome of the internal review, on 29 March 2006 the applicants applied to the Tribunal under s 55 of the FOI Act for a review of the Minister’s decision.
4. Prior to the hearing of this matter, following negotiations between the parties and further review by the Minister, the Minister released additional documents to the applicants. On 11 December 2006 the parties reached agreement on the remaining documents and the Tribunal made a decision in accordance with s 42C(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act)
5. The applicants now request that the Tribunal exercise its discretion under s 66 of the FOI Act and recommend to the Attorney-General that the costs of the applicants in this proceeding be paid by the Commonwealth. The parties have consented to the Tribunal determining this issue without a hearing and I have agreed that it is appropriate to do so in accordance with s 34J of the AAT Act.
LEGISLATION
6. Section 66 of the FOI Act provides:
(1) Where:
(a)a person makes application to the Tribunal under section 55 for review of a decision constituting the action to which the complaint relates; and
(b)the person is successful, or substantially successful, in his or her application for review;
the Tribunal may, in its discretion, recommend to the Attorney-General that the costs of the applicant in relation to the proceedings be paid by the Commonwealth.
(2) Without limiting the generality of the matters to which the Tribunal may have regard in deciding whether to make a recommendation under subsection (1), the Tribunal shall have regard to:
(a)the question whether payment of the costs or any part of the costs would cause financial hardship to the applicant;
(b)the question whether the decision of the Tribunal on review will be of benefit to the general public;
(c)the question whether the decision of the Tribunal on review will be of commercial benefit to the person making application to the Tribunal; and
(d) the reasonableness of the decision reviewed by the Tribunal.
(3) The Attorney-General may, pursuant to a recommendation of the Tribunal under subsection (1), authorize the payment of costs to an applicant.
7. There can be no question that the applicants made an application under s 55 of the FOI Act for a review of the decision made following internal review. Therefore s 66(1)(a) is satisfied.
SUCCESSFUL OR SUBSTANTIALLY SUCCESSFUL
8. Section 66(1)(b) of the FOI Act provides that a recommendation to the Attorney-General can only be made where the applicant is successful or substantially successful in his or her application for review.
9. In Re Lianos and Department of Social Security (No 2) (1985) 9 ALD 43 at 45‑46, Deputy President Hall said that in the context that it appears in s 55 of the FOI Act, the word “successful” must be taken to mean wholly successful. I do not think there can be any question that the applicants have not been wholly successful as at the time the decision was made by consent, there were a number of documents which were not produced by the Minister because they were exempt on the grounds set out in s 41 and s 42 of the FOI Act.
10. As to whether the applicants enjoyed substantial success, the Tribunal can take into account documents which the Minister refused to release at the time the request was initially made and the documents subsequently released prior to the conclusion of the proceeding (see Re Lianos). In this case, a number of documents were released between the time the applicants made the first request and the time that they consented to the decision made by the Tribunal.
11. Initially, the Minister identified only three files as falling within the scope of the applicants’ request. In those three files, the Minister claimed exemptions for two folios under s 41(1); 36 folios under s 37; and 7 folios under s 42(1) of the FOI Act.
12. The internal review officer identified a further 12 files which were within the scope of the original FOI request and stated that they had not been released due to an oversight. The reviewing officer also claimed exemption under s 41 of the FOI Act for numerous other folios from the further 12 files discovered. One file could not be located.
13. Following discussions between the parties, an agreement was reached and the Minister released most of the documents. Some documents were not released because they were exempt under s 41 of the FOI Act. One document was subject to legal professional privilege and exempt under s 42 of the FOI Act.
14. It is not possible to determine precisely how many documents were released in that period; although it is safe to say that there was a substantial number as they were those documents for which exemption was initially claimed under s 37 of the Act. In Re Lianos Deputy President Hall said that success is measured in both quantitative and qualitative terms. Given that I have not had the benefit of seeing any of the documents which were the subject of the application, I am not able to assess the value of those documents to the applicants.
15. The word substantial has been considered in a number of cases and the leading authority seems to be that of Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367. In that case, the Federal Court was required to determine whether loss or damage was substantial. Bowen CJ said at 374:
The word “substantial” would certainly seem to require loss or damage that is more than trivial or minimal. According to one meaning of the word the loss or damage would have to be considerable (see Palser v Grinling [1948] 1 All ER 1 ; [1948] AC 291 at 316–7). However, the word is quantitatively imprecise; it cannot be said that it requires any specific level of loss or damage. No doubt in the context in which it appears the word imports a notion of relatively, that is to say, one needs to know something of the circumstances of the business affected before one can arrive at a conclusion whether the loss or damage in question should be regarded as substantial in relation to that business.
Deane J said at 382 that the word substantial is not only susceptible of ambiguity but it is a word calculated to conceal a lack of precision.
16. I believe it is fair to say that in this case, considering the number of additional documents disclosed to the applicants between the date of the reviewable decision and the date on which the Tribunal made its decision by consent, the applicants have been substantially successful in their application for review. Although I have been unable to assess the qualitative aspects of those documents, the applicants submitted that they have received a large amount of information of the type which they were seeking as a result of their request. I am satisfied that, given the nature of the documents sought, the applicants have obtained substantial further information as a result of their application to the Tribunal. Therefore, I am satisfied that the applicants have enjoyed substantial success in qualitative terms as well as quantitative terms.
THE DISCRETION
17. Section 66(2) of the FOI Act sets out the matters which the Tribunal must regard when exercising its discretion under s 66. I accept that the Tribunal is not limited to examining only those four matters but may take into account other matters which are relevant.
FINANCIAL HARDSHIP
18. When deciding whether to make a recommendation under s 66(1) of the FOI Act, the Tribunal must take into account whether the payment of costs incurred by the applicants in obtaining the documents sought under the FOI Act would cause them financial hardship.
19. The only comment made by the applicants regarding costs was that the Minister unduly delayed releasing the documents to which the applicants were entitled. It was submitted that the delay caused the applicants to incur unnecessary costs. However, even if that submission were accepted, it would not satisfy the test under s 66(2)(a) of the FOI Act. As the Minister submitted, there must be sufficient evidence of financial hardship in order to satisfy s 66(2)(a). The fact that unnecessary costs were incurred in obtaining the documents is not, by itself, sufficient.
20. Other than the bare statement regarding unnecessary costs incurred by the applicants, there was no evidence before me as to the amount of costs incurred by the applicants, nor was there any evidence that such expenditure caused them financial hardship. It follows I cannot find that the payment of costs incurred by the applicants in obtaining the documents would cause them financial hardship.
BENEFIT TO THE GENERAL PUBLIC
21. The issue to be addressed under s 66(2)(b) of the FOI Act is whether the decision of the Tribunal on review would be of benefit to the general public.
22. In Re Lianos, Deputy President Hall considered this issue. He said at 48:
In my view, the question of benefit to the general public is concerned with benefits flowing from the fact that information previously withheld by the agency is now accessible to the Australian community: cf Cazalas v US Department of Justice (1983) 709 Fed R 2d 1051 at 1053. In other words it is concerned with the consequences of the Tribunal's decision (or the result of the proceedings — cf Paterson (No 2)); not with the Tribunal's reasons for decision as such. It follows that, in my view, the Tribunal is not given the unpalatable task of assessing the extent to which its reasons for decision will be of benefit to the general public (an assumption implicit in some of the arguments presented for the applicant). The fact that a case is described as a “test case” may, however, reflect the importance of and the potential public interest in the information to which access is sought.
In Cashman & Partners v Secretary, Department of Human Services and Health (1995) 61 FCR 301, Beazley J approved the approach followed by the Tribunal in Re Lianos.
23. The applicants submitted that following the release of a document on 30 May 2006, it became apparent that the decision to place the first applicant in immigration detention was legally flawed and was open to an allegation of bad faith. According to the applicants, that submission proceeded on the basis that deprivation of liberty was extremely serious and that the Minister attempted to withhold information relevant to the first applicant’s detention. The applicants submitted that such conduct was not only of grave concern to them but should also be of concern to the general public. However, the disclosure of documents under the FOI Act does not make those documents accessible to the Australian community. There was no evidence before me that the document in question could convey any benefit to the Australian public or that it had been disclosed generally.
24. The applicants referred to the Full Court of the Supreme Court of Victoria decision in Department of Public Prosecutions v Smith [1991] 1 VR 63. The Full Court held that there is a public interest in the proper and due administration of criminal justice and the fair and humane treatment of prisoners and in their rehabilitation into the community. However, in that case, the primary judge referred to the existence of a public interest in the proper and due administration of criminal justice and in order to give effect to that interest, he considered it necessary for exempt documents to be made available for public scrutiny. There is no suggestion in this case that the first applicant’s documents relating to his detention were sought to be made available to the public. Furthermore, in DPP v Smith, a petition signed by some 500 persons was presented which, according to the Full Court, might have found the existence of a public concern about a matter affecting the public interest. There is no evidence of any such petition in the present case. In fact, there is no evidence at all that the documents obtained under the FOI Act by the applicants were placed in the public domain. I am therefore unable to accept the applicants’ submissions regarding this subsection.
COMMERCIAL BENEFIT TO THE APPLICANTS
25. The applicants made no submissions regarding this matter. Nor was there any material in the submissions from either party which would indicate a commercial benefit to the applicants as a consequence of the application to the Tribunal.
REASONABLENESS OF THE DECISION
26. The decision reviewed by the Tribunal is the decision made on internal review under s 54 of the FOI Act. That is the reviewable decision brought to the Tribunal pursuant to s 55 of the FOI Act.
27. The applicants referred to the fact that at least 73 documents were not identified by the Minister until after the Tribunal proceedings commenced. The applicants also pointed to the fact that, except for those documents relating to third parties for which exemption was claimed under s 41 of the FOI Act, and one document for which exemption was claimed under s 42, other documents were eventually released by the Minister during these proceedings. The first thing that needs to be said is that the later release of documents does not automatically lead to the conclusion that an exemption was not properly claimed in the first place (see Re Cosco Holdings Pty Ltd and Department of Treasury (1999) 54 ALD 466 at 481). It seems to me that the applicants’ main complaint is directed at the fact that initially only five files relating to one of the applicants was released by the Minister. The remaining three applicants, although they had provided the Minister with detailed requests for access to documents in the form required, were not dealt with. On internal review, the reviewing officer identified a further 12 files which, according to the Minister, had not been identified as being within the scope of the request due to an oversight. Nevertheless, the documents on those files were dealt with by the reviewing officer. While that certainly caused substantial delay in the ultimate resolution of the dispute between the parties, it does not go to the reasonableness of the decision made by the reviewing officer.
28. In my view, the reasonableness of the decision under review depends very much on whether the exemptions claimed by the Minister were reasonable at the time that the claims for exemption were made. In her reviewable decision, the reviewing officer identified exemptions under s 41, s 42 and s 36 of the FOI Act. The exemptions claimed under s 36 of the FOI Act comprised only two folios. The remaining documents for which exemptions were claimed all fell within s 41 or s 42 of the FOI Act. The initial exemptions claimed by the Minister under s 37 were not maintained by the reviewing officer. In the final decision made by the Tribunal with consent of the parties, the exemptions under s 41 and s 42 were maintained. Therefore, it is not possible to come to the conclusion that the decision made by the reviewing officer was not reasonable.
OTHER FACTORS
29. As the applicants submitted, the four matters set out under s 66(2) of the FOI Act are not exhaustive of the matters that may be taken into account by the Tribunal when exercising its discretionary power. I agree that the Tribunal should take into account the conduct of the Minister. According to the applicants, the Minister’s conduct caused unreasonable delay and the applicants incurred unnecessary costs in obtaining access to the documents sought.
30. In Cashman & Partners v Secretary, Department of Human Services and Health, at 399, Beazley J referred to a number of Tribunal decisions including Re Hounslow and Department of Immigration and Ethnic Affairs (1985) 7 ALN N 362 and agreed that delay may be a relevant factor when determining an application under s 66 of the FOI Act.
31. The applicants submitted that, on 21 October 2005 when they made their request under the FOI Act, they advised the Minister that the documents were required urgently for a Federal Court hearing on 14 November 2005. Despite that request, the first documents were released one month after the Federal Court hearing date and almost eight weeks after the request was received by the Minister.
32. However, where a request has properly been made under the FOI Act for access to documents, upon receiving the request, the Minister is required as soon as practicable, but in any case not later than the end of a period of 30 days after the day on which the request is received, to take all reasonable steps to enable the applicant to be notified of the decision on the request (s 15(5)). Given that the time between the request being lodged with the Minister and the time of the Federal Court hearing was some three weeks, it should have been clear to the applicants’ solicitors at that time that the documents might not be available for use in the Federal Court hearing. In those circumstances, it might have been more appropriate for the applicants’ solicitors to issue a subpoena to produce documents in accordance with the Federal Court Rules.
33. Nevertheless, I accept that the delay between the request and the first release of documents was well outside the period of 30 days prescribed by the FOI Act. Although the Minister could have informed the applicants that the statutory period would be extended by a further 30 days (if s 37 of the FOI Act applied), there was no evidence before me of such an extension. The request for an internal review was made by letter dated 13 January 2006 and the review was completed on 23 February 2006. There was no significant delay in completing the internal review.
34. There were at least two relevant files which were only identified later in 2006 following the applicants’ request to release those documents or provide an explanation as to why they could not be released. The Minister, in answering the applicants’ request for the further files, noted that there was an oversight in locating what was described as the boxfile. According to the Minister, the search for the requested documents did not identify the boxfile as being relevant, as it was a general file containing nomination forms from a number of institutions and not just the Sydney International College which made sponsorship applications in respect of the applicants. According to the Minister, the boxfile was not cross referenced to the applicants.
35. It seems to me that the applicants’ complaint regarding the delay is well founded and the inability of the Minister to locate relevant files subject to the FOI request was not entirely satisfactory. However, when prompted, the Minister did renew searches and was able to locate the further files, except for one file for which exemption was eventually sought under s 24A of the FOI Act.
36. The applicants also submitted that there was unreasonable delay in releasing documents for which exemption was originally claimed. The Minister admitted that throughout the course of these proceedings, she reviewed her position in relation to the documents claimed to be exempt and continued to release further documents to the applicants. The Minister also noted that save for the documents for which exemption was claimed under s 41 and s 42, the remaining documents were released prior to this matter being listed for hearing and prior to the applicants having to incur the further costs of preparing a Statement of Facts and Contentions and affidavits. I accept the Minister’s submissions that she progressively examined the exempt documents, releasing them after receiving advice from the Australian Government Solicitor; although there was one document for which the exemption claimed was not appropriate. This was in relation to a community dob-in letter in which the informant was stated to be anonymous. Despite that, an exemption was claimed under s 41 of the FOI Act. While that is unfortunate, I agree with the Minister that the decision in respect of that document should not affect her decision in relation to claims for exemption for other documents.
37. Although there was some delay in obtaining a number of files and documents because they had not been identified as being the subject of the request, the delay in locating and releasing the documents was not so significant that it should outweigh my findings on the four mandatory considerations set out in s 66(2) of the FOI Act. There was no evidence before me of the extent of unnecessary costs incurred by the applicants as a result of delay.
CONCLUSION
38. I am satisfied that the applicants have substantially succeeded in their application for a review. However, none of the mandatory considerations under s 66(2) would move the Tribunal to exercise its discretion in favour of the applicants. Although I accept that there has been some delay in locating and in releasing documents for which exemptions were initially claimed, the delay, while regrettable, was not so serious to cause me to exercise the Tribunal’s discretion in favour of the applicants.
39. Therefore, having considered the submissions made on behalf of all parties, I do not recommend to the Attorney-General that the costs of the applicants in relation to these proceedings be paid by the Commonwealth.
I certify that the thirty‑nine [39] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, Member
(sgd) Olympia Sarrinikolaou
Clerk
Date of Hearing: Hearing on the papers
Date of Decision: 1 February 2007
Solicitor for the applicant: Ms M. Jockel, Maddocks Lawyers
Solicitor for the respondent: Ms E. Arduca, Australian Government Solicitor
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