McCallin and Department of Immigration and Citizenship

[2008] AATA 477

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 477

ADMINISTRATIVE APPEALS TRIBUNAL      )         No.  2007/6099

)

GENERAL ADMINISTRATIVE DIVISION		)
Re		GERALD McCALLIN

Applicant

And DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal: G.D. Friedman, Senior Member

Date:19 May 2008

Place:Melbourne

Decision: For reasons given orally at the hearing the Tribunal affirms the decision under review.  

(sgd) G.D. Friedman

Senior Member

[11.24 am]
ADMINISTRATIVE APPEALS TRIBUNAL
By MR G.D. FRIEDMAN, Senior Member
Matter No V2007/6099
McCALLIN and DEPARTMENT OF
IMMIGRATION AND CITIZENSHIP
MELBOURNE, MONDAY, 19 MAY 2008

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MR FRIEDMAN: The applicant in this case, Mr McCallin, has asked for access to a number of documents under the Freedom of Information Act and the documents that have been identified as relevant, as set out in the schedule provided by the respondent which I will direct be renamed the Secretary, Department of Immigration and Citizenship. Those documents refer to two files: one is a citizenship file relating to the applicant’s former wife - her name is Joan McCallin; and the second bundle of documents refers to permanent residency application by Ms McCallin and also relating to the daughter, Lisa McCallin.

In the first place I want to refer to searches that were made by the respondent in relation to a particular file that wasn’t able to be located.  I’ve taken into account the contents of affidavits in exhibits R1 and R2 by departmental officers, and I’m satisfied that under section 24A adequate searches were made for that file.  There was no real objection taken by the applicant in this case and it seems to me that the department did all it could within its power to find the file and was unable to do so.  And in any event Ms Van Duyn, representing the respondent, pointed out that most of the documents are contained or included in the schedule of exempt documents anyway.  So my finding is that adequate searches were made under section 24A of the Act.

In relation to the schedule of exempt documents, I pointed out at the beginning of the hearing that the applicant was not required to divulge any reason for the request, as that’s not necessary under the FOI Act, however, he volunteered and it certainly helped me put in context his application.  And that is, that after the family law proceedings in the Federal Magistrates Court had concluded and the applicant had obtained access to the relevant file relating to his divorce, and relevant matters relating to the end of the marriage, he noticed a document that had been put in the file by the department, the respondent in this case.

And he was seeking to follow that up because in his view, not only should that document – I think he’s saying to me - not only should that document have been available to him at the time of his family law proceedings, but the contents of that document led him to believe that certain aspects of citizenship or permanent residence, or both, were matters that might have been taken into account at the time, and might have affected him.

So that’s the context in which his application is made. It certainly helps me, as I said, to know the context, even though it wasn’t strictly essential to do so. Now, all the documents have been held – all the relevant documents have been held exempt under the one section of the Freedom of Information Act which is section 41 subsection (1). And that relates to personal privacy:

A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person, including a deceased person.

Having read material provided by Ms Joan McCallin and also Ms Lisa McCallin, I’m satisfied that the documents in the schedule of exempt documents are personal information under section 41 subsection (1) of the Act and Mr McCallin, the applicant in this case, didn’t really query that because on the face of it and my perusal of the documents concerned, show that they are personal.  They do contain personal information because in Ms Joan McCallin’s case it was things that she’s done in her life, her history and work history, education, that sort of thing.  For Lisa McCallin it refers to matters that occurred in her past as well and are relevant to her.

So I’m satisfied that the information is personal information under section 41 subsection (1).  The question then arises for my consideration is whether disclosure of the information would be unreasonable.  Now, the applicant in this case has said that I should find that disclosure would not be unreasonable.  And the two main reasons that I understand him to say:  (1) he knows a lot of the information anyway, why wouldn’t he, he was married for some considerable time to Ms Joan McCallin and presumably spouses have a pretty fair idea of the sort of things that happen in the other spouse’s background.

And the second reason is that really it alludes to what he said about why he made the application, that there may be some relevance to matters that should have been divulged in the Family Court proceedings which had taken that document from the department’s point of view, this expands on – those documents expand on that, so he thinks – he believes that disclosure of those documents would not be unreasonable.  Now, the relevant authorities have been set out in the statement of facts and contentions that have been provided by the respondent in this case.

I’ve been taken by Ms Van Duyn to two matters in particular and the first one is re Chandler v Minister for Immigration and Ethnic Affairs (1984) 6 ALN 257 and 259 where the tribunal pointed out in that case:

Exemption is only attracted if the disclosure would involve the unreasonable disclosure of information.  Whether a disclosure is unreasonable requires consideration of all the circumstances including the nature of the information, the circumstances which would contain the likelihood of being information you would not wish to have disclosed without consent and whether the information is seen as of current relevance.  What section 41 seeks to do –

And I’m still quoting here –

is to provide a ground for preventing the reasonable invasion of privacy.

And then in the case of applicant ABCD v Refugee Review Tribunal (2006) FCA 908 in the Federal Court Allsop J referred to some of the previous judgment and he listed four factors to be taken into account: (1) is whether the author could be identified; (2) whether the documents contain information personal about the third person; (3) whether it was clear from the documents that release of the document would cause stress on a third party and no public purpose would be achieved by the release of the documents.

In applying the factors of that case I’ve been assisted today, and I must say in matters such as these quite often the tribunal is put in a position where it has the documents that relate to a third party, and somebody makes a judgment on behalf of the third party without getting the third party’s consent or views.  And that might be where a person is overseas or a person is no longer able to be located, that sort of thing.  It places the tribunal in a somewhat difficult position of trying to say what a person’s attitude might be if that person were asked or could be located.

In the case before me today I’m in the position where I’ve actually heard evidence from the third parties themselves.  I refer to of course, Ms Joan McCallin and Ms Lisa McCallin.  And they’ve given evidence as to those factors, and they provided affidavit material which has been made available to the applicant, and he is free to use that as he wishes.  And they’ve been able to give evidence as to whether – I’ll just go through each of the factors – the author has been identified.  Well, in this case it’s clearly the department that’s the author, but I think what that case really means is the third party has been identified as well.  There is no doubt in this case that the third parties are Ms McCallin senior, Ms McCallin junior.

Whether the information is personal to the third parties.  I’m satisfied in this case that the material is personal to both Ms Joan and Ms Lisa McCallin because it relates specifically to their respective applications for permanent residence and citizenship.  Whether the release would cause distress.  I’ve heard evidence from both third parties that release would cause them distress.  They’ve been subjected to cross-examination – I’ll rephrase that.  The opportunity was given for both the respondent and Mr McCallin to cross-examine them on their views about whether they would be caused distress if the documents were released.  Mr McCallin chose not to cross-examine them, that doesn’t necessarily mean that I accept everything they say, but I’ve taken into account that he chose not to cross-examine.

I’m satisfied after hearing their evidence that release of the documents would cause them distress.  The documents contain personal information about their past, why they wanted citizenship, what they did in their past and how they would feel distressed.  Now, Mr McCallin said to be several times during the hearing that he didn’t agree with material in their affidavit and he is entitled to that view.  And I stress at this point, as I told him earlier, I’m not making judgment on anything that was in their affidavits.  That’s for other people to do.

The question before me is whether I’m satisfied that release would cause them distress, and that’s a fairly subjective matter.  Having heard them, I’m satisfied that release would cause them distress.  Whether their distress is soundly based or not is not for me to say.  I stress that again to Mr McCallin.  But I’m satisfied that release would cause them distress.  No, I’m not going to take any comments at this stage.

The final factor is whether release of the documents might serve any public purpose.  Generally that seems to apply to documents that might be in the public interest.  There might be something relating to national security or something that, whilst there might be distress, could be – I don’t know – some public figure might say that a document relating to that person would cause distress, but it might be in the greater public good that would override that.

Now, in this case we have two private individuals who have said that they would be cause distress and I’ve found that distress is made out.  I don’t believe there is any public good that would arise to override the distress that they cause, or in any other reason – for any other reason the public good would be served by the release of the documents.  Mr McCallin has said to me that I should not be swayed by matters such as was set out in the affidavits relating to personal safety, because he hasn’t seen his wife for two years or so.  I can understand what he’s saying about that and that really relates to his view of the contents of the affidavit.

However, it’s not for me to decide the truth of the distress and fears that a person might have.  It’s whether I think that that distress has been made out, all right.  So whilst I pass no judgment on the contents of the affidavit or anything else relating to personal safety, all I’m saying is the issue of personal safety is not one that would make me override any conclusion I’ve reached as to the distress or otherwise, and reasons that the third parties believe release of the documents would be unreasonable.

The applicant has also said that, even though I didn’t particularly require him to tell me, he said that he was considering further action in other places, might be other courts or whatever, that’s entirely a matter for him.  He also referred to the Ombudsman.  Well, the Ombudsman has jurisdiction separate to this tribunal and it’s not for me to give legal advice, but of course if Mr McCallin chose to go to the Ombudsman about any matter relating to public administration then he’s welcome to do so and I’m sure he will follow that up independently of anything I say.

So for all those reasons I find that in relation to each of the documents in the schedule of exempt documents, the documents are exempt under section 41 because they are personal documents that relate to personal information of the third parties and disclosure would involve the unreasonable disclosure of the personal information.  For those reasons I’m going to affirm the decision under review.

Mr McCallin, I hope you understand what I’ve said, that I’ve made no findings adverse to you at all, about anything.  I’ve made no findings about anything contained in any of the affidavit material placed before me.  My decision is purely on the exempt documents and I hope you accept that.

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