Mulder and Centrelink
[2005] AATA 663
•11 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 663
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/546, Q2004/548
GENERAL ADMINISTRATIVE DIVISION )
Re Mr J D MULDER Applicant
And
CENTRELINK
Respondent
DECISION
Tribunal Ms MJ Carstairs, Member Date11 July 2005
PlaceBrisbane
DirectionThe Tribunal directs that the applications allocated application numbers Q2004/546 and Q2004/548 be amalgamated as Q2004/546 because they deal with the same FOI application made by the applicant upon the respondent on 14 January 2004.
Decision The Tribunal sets aside the decision under review dated 12 May 2004 and substitutes the following decisions:
§ that the applicant be granted access to the material relating to the decision cancelling his newstart allowance on 15 December 2003. As the applicant has been given that information and/or documents as a result of a decision of Mr N Williams, Centrelink FOI officer, dated 20 September 2004, this part of the decision of the Tribunal therefore does not require that any additional access to documents be granted apart from the documents already supplied.
§ that the document, namely a decision dated 15 December 2003 cancelling the applicant’s newstart allowance, be annotated using the form of words elsewhere used by the respondent when annotating the applicant’s file in regard to his residence status, that is the form of words set out in the decision of Ms D Wareing FOI Officer, dated 13 December 2002 (T6).
.................[Sgd]........................
MJ Carstairs
Member
CATCHWORDS
FREEDOM OF INFORMATION – decision granting access to documents – applicant’s request for access misunderstood – later decision granting access – Tribunal has decision to review the first decision only
FREEDOM OF INFORMATION – refusal of request to change documents – refusal based upon failure of the applicant to adequately identify documents – whether the applicant seeking to re-open earlier decision to amend documents.Administrative Appeals Tribunal Act 1975 s 26
Freedom of Information Act 1986 ss 3,14,15,24,49, 51, 55, 61Re Alikhani and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 147
REASONS FOR DECISION
11 July 2005 Ms MJ Carstairs, Member 1. Mr J D Mulder (the applicant) seeks review of decisions made by Centrelink under the Freedom of Information Act 1986 (the FOI Act).
2. At the hearing on 21 March, 1 and 2 June 2005 the applicant represented himself. The respondent was represented by Mr M Swan of the Australian Government Solicitor’s Office.
3. The Tribunal had before it the documents lodged by the respondent under s37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents) numbered T1-T16 in Q2004/546, and T1-T5 in Q2004/548. The documents included materials that the respondent said related to the decisions as specifically referred to by their Centrelink FOI reference numbers when the applicant applied to the Tribunal (set out more fully in paragraphs 5 and 9 below). The applicant questioned the correctness and/or completeness of the documentary materials, and the respondent filed a supplementary s37 Statement in matter Q2004/546 (exhibit R1).
4. In addition to the T-documents, the Tribunal had before it exhibits numbered A1-A7 for the applicant and R2-R6 for the respondent. Included in the respondent’s exhibits were two statements (exhibits R3 and R4) sworn by Mr N Williams, Centrelink Freedom of Information (FOI) Officer. As set out below, Mr Williams referred, amongst other things, to his own decision dated 20 September 2004 (T15 (Q2004/546)), the effect of which was to release to the applicant further materials/documents to address a number of aspects of the applicant’s FOI requests as Mr Williams understood these related to Q2004/546 and Q2004/548.
APPLICATION Q2004/546 FOI REQUEST AND DECISION UNDER REVIEW:
5. In his application to the Tribunal in Q2004/546, lodged on 6 July 2004 (T1: Q2004/546), he stated:
I hereby request the Tribunal to review Centrelink’s (the agency):
1 Decision of 12/5/4 by M Ebbeck (REF: FOI/087307.ME);
2Decision of 18/6/4 by G Carle (REF: FOI/087307.NW) reviewing the decision of M Ebbeck
Following my FOI request of 27/11/2003 – to ‘change documents’ not acknowledged until 27/11/3
6. In an FOI request made on the respondent on 14 January 2004 the applicant had completed a standard form used by Centrelink for these purposes headed I want to access or change document(s). The applicant set out that he wanted copies of or sought to inspect:
1Those manuals and rules Centrelink uses to make decision/made decision about this matter. (Tribunal’s emphasis)
2Those documents (printed or electronic) to support the reason why: statement in section 9 of this request form.
7. At section 9 of this form, which an applicant is directed to complete if they have marked a box on the previous page I want to change document(s) about me, the applicant then referred to:
DOC – dated 15/12/03 – cancellation of your NSA that paragraph “You do not have a permanent resident visa.
8. The applicant also referred to documents which he called Folio 00062 and Folio 00082 and he suggested a form of words that he wished to appear on his file describing his residence status in Australia.
9. The course of the internal review processes in Q2004/546 after the 14 January 2004 application was set out as follows:
§ On 12 May 2004 (T3: Q2004/546) a decision was made by Michelle Ebbeck, FOI and Privacy Officer, Centrelink.
§ On 21 May 2004 (T4: Q2004/546) the applicant lodged a document at the Ipswich office of Centrelink headed This is a written request to Centrelink to review decision of 12/5/4 author M Ebbeck reference: FOI/087307/ME (that is the reference number on Ms M Ebbeck’s decision (T3: Q2004/546).
§ On 18 June 2004 (T5) Mr G Carle, Business Manager, Centrelink responded to the applicant’s request, and Mr Carle referred to the request in the following terms:
I am writing in response to the ‘WRITTEN REQUEST TO CENTRELINK TO REVIEW DECISION of 12/5/4 author M. Ebbeck – REF: FOI/Q87307/ME.
APPLICATION Q2004/548 FOI REQUEST AND DECISION UNDER REVIEW:
10. In his application to the Tribunal in Q2004/548, lodged on 14 July 2004 (T1:Q2004/548), the applicant described his request as follows:
My FOI request: 14 January 2004
What?: ‘I want to access documents held by Centrelink about me’.
Following the (again) Cancellation of benefit for reason given:
‘You do not have a permanent resident visa’
FOI request: Access to –
o Those Manuals and Rules Centrelink used to make/made decision to cancel my Newstart Allowance on 15 December 2003;
o Those documents to support the reason why my benefit was cancelled.
Agency DECISION: by Ms Ebbeck on 28/5/4
Internal Review: by G Carle on 7/7/4
11. I note in passing that there was no decision as referred to by the applicant as being made by Ms Ebbeck dated 28 May 2004. However as I have formed the view that the application dated 14 July 2004 (T1: Q2004/548) relates to the same matters as the application dated 6 July 2004 (T1: Q2004/546) the error in the description is of no significance to the review.
12. On 4 February 2004 (T2:Q2004/548) the applicant lodged a further FOI application form in relation to those documents held by Centrelink to show those actions/decisions taken -
§ what careful decisions made
§ what investigations done
prior to decision made on or about 27/1/04 ‘cancel NSA, because we have been unable to contact you at the address you gave us.’
13. The T-documents lodged by the respondent named the FOI application on 4 February 2004 as the relevant claim, despite the terms of the applicant’s application to the Tribunal identifying a request dated 14 January 2004 rather than 4 February 2004. The respondent set out as the course of the review process after the applicant’s request in matter Q2004/548 the following:
§ A decision was made by Ms M Ebbeck on 27 February 2004 (T3:Q2004/548). The reference number allocated to it was FOI/0086946/ME.
§ On 7 June 2004 (T4:Q2004/548) the applicant lodged a document headed THIS IS A WRITTEN REQUEST FOR REVIEW OF MS EBBECK’S DECISION OF 28/5/4 – REF: FOI/087307.NW.
§ A review was conducted by Mr G Carle dated 7 July 2004 (T5) (Q2004/548) headed Please quote: FOI/086946/087157/087307/GC.
14. As set out above the applicant’s application to this Tribunal (T1: Q2004/548) identified that he sought review in relation to his request on 14 January 2004 seeking access to documents held by Centrelink about me..following the (again) Cancellation of benefit for reason given: ‘You do not have a permanent resident visa’. He sought the manuals and rules that Centrelink used to make the decision on 15 December 2003.
15. The s37 statement filed by the respondent in Q2004/548 commences with the applicant’s FOI request dated 4 February 2004, to access documents related to the cancellation in January 2004 on the basis of being unable to contact him at his address. That is, the T-documents identified a different initiating FOI request than was the subject matter of the applicant’s application to this Tribunal dated 14 July 2004.
16. I note that the FOI request made by the applicant on 4 February 2004 is, however, the subject of a later application to the Tribunal dated 24 November 2004 (Q2005/17). This later application is not on review before me. I also note Mr Williams’ evidence (as Centrelink FOI Officer) that he has provided to the applicant, in a decision dated 20 September 2004, all relevant materials about decision-making processes when a recipient is cancelled for the reason that mail is returned to Centrelink. The applicant may wish to bear Mr Williams’ evidence in mind when considering whether he needs to continue with his application to the Tribunal in Q2005/17.
17. I agree that the T-documents filed by the respondent in Q2004/548 do not reflect the decision of which the applicant sought review on 14 July 2004 because those documents take as their starting point his FOI application dated 4 February 2004.
18. I am satisfied that once the nature of the applicant‘s request for review with this Tribunal at T1 in Q2004/548 is properly identified as being for review of his FOI request dated 14 January 2004 (T2: Q2004/546) then it is plain that his application for review is encompassed within Q2004/546 and does not require a separate file number.
19. For this reason I direct the registry of the Tribunal to amalgamate the files by deleting the separate reference to Q2004/548.
BACKGROUND
20. The applicant has received Centrelink benefits over a number of years, and has had occasion to lodge a number of FOI requests with Centrelink in the past. He has eight other applications for review of FOI decisions currently with the Tribunal. I state this only as background to the view that I formed in reaching the decision that I have in this matter, that any confusions that later occurred (for both parties) are understandable when an applicant has a number of FOI applications on foot at any one time.
21. Twice in December 2003 the applicant’s newstart payment from Centrelink was cancelled (one time involved an error resulting from of a computer system fault, according to Mr Williams’ evidence; the other was when Centrelink mail was returned). On 27 January 2004 the applicant’s newstart allowance was again cancelled when Centrelink mail addressed to him was returned. The reasons for making any cancellation decisions are not on review before the Tribunal, but the repeated cancellations do provide a starting point for the FOI applications that the applicant made soon after.
22. It is necessary to set out the course of the FOI reviews from the time when the applicant put in his initial request(s) and as dealt with by Centrelink officers, because the applicant asserts, and the respondent agrees, that the intention of his FOI application(s) was misunderstood by Centrelink. The nature of this misunderstanding is referred to below in the outline of the evidence of Mr Williams.
23. As stated above, Mr Williams, as FOI delegate, made a further decision on 20 September 2004. Mr Williams said that this was in response to a letter from the applicant received by Centrelink on 18 August 2004 (attachment NW8 to exhibit R4). The applicant now says that he did not want the letter treated as a new FOI request.
24. This letter from the applicant on 18 August 2004 post-dates both his applications to this Tribunal on 6 and 14 July 2004 and this has relevance for what is under review and is discussed further below.
THE ISSUES
25. The applicant seeks, variously, in his applications under the FOI Act, access to documents and/or the right to inspect documents and/or the right to change documents. The issue(s) for the Tribunal concerns the nature of request(s) that he has made and whether any matters now remain outstanding, taking into account the ambit of the applicant’s FOI requests.
26. The matter was complicated, further, by the applicant having lodged on 14 January 2004, the same date as the FOI request in Q2004/546, another FOI request for access to those documents held by Centrelink to show those actions/decision taken following receipt of my complaint dated and faxed 11/8/03 to CEO Canberra. This FOI request was not on review before me, however that FOI request was part of an application to this Tribunal (Q2004/125; Q2004/126) dismissed by the Tribunal on 21 July 2004.
EVIDENCE
27. The hearing proceeded on the basis of the written materials filed by the parties and written and oral evidence from Mr Williams.
28. Mr Williams prepared two statements, one dated 3 March 2005 (exhibit R4) which referred in the main to Q2004/546; one dated 21 March 2004 (exhibit R6) relating to Q2004/548.
29. Mr William’s evidence from these statements, the attachments to them, and from his oral evidence, can be summarised as follows:
§ A Centrelink recipient’s file is maintained in chronological order by Centrelink but is not page numbered unless an FOI request is lodged. On receipt of an FOI request, page numbering of the person’s file is carried out and an index is created, describing the document and matching it to the folio number.
§ Each FOI request commences the process of numbering again, starting with the number “1”.
§ The applicant’s files have been folioed a number of times, after he has made FOI requests. There are references to page numbering as far as p1078 by one FOI officer. Unfortunately, pages 1-599 of Centrelink’s copy of the applicant’s file were lost at some time in the past when transferred by mail between a Centrelink office and an FOI section in Canberra. Despite all searches, they have never been found.
§ In 2002 the applicant lodged an FOI request to have documents amended where the information on them related to his residence status. This claim was dealt with by Ms D Wareing, FOI officer, who met with the applicant and forwarded him the wording of proposed amendments and the page numbers of the documents in the applicant’s Centrelink file upon which the amendments would appear. It seems that as a result of discussions between the applicant and Ms Wareing the wording of a proposed annotation was worked out (attachment NW-4 to exhibit R3) and she forwarded to the applicant on 3 February 2003 the documents that bore the annotations. The applicant wrote to Centrelink on 13 February 2003, and Ms Wareing replied to that letter, stating her belief that when the applicant had not responded to her, he was satisfied with her proposed wording of the amendments and she therefore had completed her action on his FOI request. She further stated that if the applicant wanted to take the issue further he could request a review. The applicant did not request a review of that decision within the timeframe allowed under the FOI Act (subject always to the possibility of an extension of time).
§ On 10 December 2003 Centrelink cancelled the applicant’s newstart payments on the basis of his whereabouts being unknown, after a Centrelink letter addressed to him was returned, marked (presumably by the applicant) incorrectly named (T5, p.25: Q2004/546). Mr Williams explained that Centrelink practice was that any Centrelink mail that comes back and appears unopened, is assumed not to have reached the person for whom it was intended. Centrelink cancels the person’s payment until it is established whether the person still resides at the address on the Centrelink record. Under cross-examination Mr Williams said that he inferred from the fact that the applicant’s newstart payments were restored within a matter of days that the applicant contacted Centrelink quickly.
§ On 15 December 2003 the applicant’s newstart payments were again cancelled, the stated basis in the cancellation letter on this occasion being that the applicant did not have a permanent resident visa. Mr Williams explained in oral evidence that this occurred as a system fault in the Centrelink computers, and affected a number of Centrelink recipients, when a new computer program was introduced in December 2003. He said that Centrelink recipients who had blank fields for data about residence in their Centrelink records had their payments cancelled incorrectly. He said that the computer problem was quickly identified. Centrelink issued a staff memo to alert staff and took action to address the system error.
§ On 27 January 2004 the applicant’s payment was again cancelled when mail was returned.
30. In cross-examination the applicant asked Mr Williams if all his FOI requests had been addressed in Mr Williams’ decision dated 20 September 2004 (T15:Q2004/546). Mr Williams said that he believed that they were.
31. It is useful to summarise the content of Mr Williams’ decision (T15). As stated above, Mr Williams considered that he was not re-opening the applicant’s earlier FOI requests but rather was dealing with a new request dated 18 August 2004. Mr Williams included the following points:
§ Mr Williams said that Centrelink had interpreted the applicant’s reference to this matter in requests dated 14 January 2004 and 4 February 2004 for access to those manuals and rules Centrelink uses to make decision/made decision about this matter as being a reference to the cancellation of his newstart allowance when correspondence was returned.
§ Mr Williams said that he now realised that the applicant was referring to the basis of the cancellation decision dated 15 December 2003 stated as made on the basis of lack of residence visa. He apologised for the misunderstanding. The only relevant documents that Mr Williams identified that answered to the applicant’s request were a copy of the computer printout of the applicant’s residence data held by Centrelink (which showed the applicant was a permanent resident) and a copy of the staff memo that issued after the computer system error occurred in December 2003.
§ Mr Williams explained the process for amending or annotating documents and pointed out that on 18 December 2002 Ms Wareing had amended 72 folios in the applicant’s files that were incomplete, incorrect, out of date or misleading about his residence status.
§ Mr Williams referred to the information already provided to the applicant and he provided other documents.
32. The applicant also said that the real nature of his request for review was revealed in his reference to Following my FOI request of 27/11/2003 – to ‘change documents’ not acknowledged until 27/11/3. It is clear from the evidence of Mr Williams and from the applicant’s submissions on this matter that these words referred to the review that was conducted by Ms Wareing during 2003 in relation to his 2002 request for amendment of his Centrelink records.
CONSIDERATION OF THE ISSUES
33. Section 3 of the FOI Act sets out the objects as follows:
(1)The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by:
(a)making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and
(b)creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities….and
(c)creating a right to bring about the amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.
34. The FOI Act includes provisions to access or amend documents and provides for decisions to be reviewed. Where the person seeks access to documents they must provide enough information to enable the FOI officer to identify what it is they are seeking (s15(2)(b) of the FOI Act), but the agency is also to provide the assistance to ensure that the person’s request does comply with these requirements (s15(3) of the FOI Act) and failure to comply is not a ground for refusing access unless the agency has provided the intended assistance (s24(6) of the FOI Act). The provisions for amending or annotating personal records are in Part V of the FOI Act and similarly require that a person’s request be in writing and specify the documents that require annotation as well as set out in a statement the details of how the content of the document is incomplete, incorrect, out of date or misleading. There is no equivalent provision in this Part of the FOI Act to s24(6) where an applicant is seeking to amend or annotate, as distinct from accessing, records or documents.
35. Other provisions of note in the legislation are:
§ The FOI Act contemplates access to documents on other bases than those dealt with under the Act: s14 of the FOI Act.
§ The respondent bears the onus of establishing that a decision given on an FOI request was justified or that the Tribunal should give a decision adverse to the applicant: s61 of the FOI Act.
§ Time limits apply for an applicant to seek a review of a decision, including a 30-day period in which to seek the internal review of a decision.
36. The provisions for reviewing decisions are in Part VI of the FOI Act which provides for internal and Tribunal review. Section 26 the Administrative Appeals Tribunal Act 1975 sets out that after an application is made to the Tribunal for the review of a decision, the decision may not be altered otherwise than by the Tribunal unless the relevant legislation permits the decision to be altered, or the parties consent. Some sections of the FOI Act allow the Tribunal to review a decision that has been changed after the date of application to the Tribunal, but not all decisions under review may be dealt with in this way. Where the application is one made under s55 of the FOI Act there is no provision for this to occur.
37. Part of what the Tribunal must decide in this case is the ambit of what is under review. The applications to this Tribunal in this case are made under s55 of the Act. They come within s55(1)(aa) and s55(1)(ab) which specify, as reviewable, two types of decisions:
(aa)a decision granting access to a document but not granting, in accordance with a request, access to all documents to which the request relates; or
(ab)a decision purporting to grant, in accordance with a request, access to all documents to which the request relates, but not actually granting that access; or
…..
(g)a decision refusing to amend a record of personal information in accordance with an application made under section 48; or
(h)a decision refusing to annotate a record of personal information in accordance with an application made under section 48.
38. Mr Swan acknowledged in submissions that Mr Williams’ decision dated September 2004 was a decision made outside the statutory timeframe provided under the FOI Act but said that, nevertheless, Mr Williams’ decision had cleared up the misunderstandings that had prevailed earlier about exactly what access the applicant sought by his FOI application dated 14 January 2004 (T2: Q2004/546) and to which documents or materials his applications referred. Mr Swan referred to Mr Williams’ affirmative answer to the applicant’s question about whether all matters were addressed as a result of Mr Williams’ decision dated 20 September 2004.
39. Mr Swan submitted that after Mr Williams’ decision dated 20 September 2004, all further material had been provided that answered the FOI request dated 14 January 2004 as it relates to access to documents. That is the part of the request which related to
those manuals and rules Centrelink uses to make decision…about this matter and those documents to support the reason why ….“cancellation of your NSA you do not have a permanent resident visa”.
Mr Swan submitted that the only documents that answered that description were those that explained that the error had occurred and its source in a computer system error. Mr Williams’ decision dated 20 September 2004 covered the provision of a range of documentary materials about Centrelink practices and procedure in regard to cancellations.
40. Mr Mulder submitted that Centrelink failed to comply with FOI time limits a number of times and did not always advise him about appeal rights under the FOI Act in letters sent to him. He said that the Tribunal should formally reprimand Centrelink for their delays and errors. Mr Swan submitted that the ultimate issue here is that the applicant sought the information and it was supplied to him. It may have been supplied late, but this procedural irregularity Mr Swan says does not detract from the substantive action taken to deal with the FOI request once it was clarified.
41. Mr Mulder sees the issues differently (exhibits A6 and A7). He says the issues are related to an FOI request (?) that he made on 27 November 2003. He states that he has spent a considerable time correcting entries on his Centrelink file relating to his residence and that it has been a great shock and utter devastation to again have to go through this incompetent process all over again.
42. The applicant asserts that his application to the Tribunal extends to now allow the review of decisions on his request to change documents not acknowledged until 2711/3.
43. The Tribunal does not accept that the applicant’s FOI request dated January 2004 should be, or could be, read as re-opening the matters that were dealt with as amendments to his records as a result of an FOI request made in 2002. In that respect the applicant seeks to come within the provisions of s55(1)(g) or s55(1)(h) of the FOI Act. However his FOI request dating from 2002 and related to changing documents on his file then, was dealt with by a process of negotiating an acceptable form of words with Ms Wareing during 2002. The FOI request to amend or change records was completed and advised to him in a letter dated 18 December 2002 (T7:Q2004/546) in which Ms Wareing provided the agreed amendments to 72 pages of the applicant’s file, between pp606-1476 (bearing in mind the evidence that pages 1-606 have been lost). There is no information before me that suggest that he sought review at the time or at the time of her next letter to him on this matter on 14 March 2003 (T10). The applicant cannot, by simply making a reference to an earlier decision in his applications to this Tribunal in 2004, expand the scope of the review, without following the requirements for an extension of time that apply at all the levels of review.
44. It is clear from the history of the applications under the FOI Act that the applicant has made to the respondent and other Commonwealth agencies (as noted in other published decisions of this Tribunal) that the applicant has had concerns in the past where his citizenship and residence in Australia has been put in question. He has taken action in the past seeking to amend his records and seeking review a number of times so that these matters would no longer be the source of problem to him, particularly in relation to his entitlements to Centrelink benefits.
45. It is hardly surprising then when he received a letter cancelling his newstart allowance on the basis of lack of residence qualifications that he would immediately think that his earlier efforts to have those issues sorted out by annotations on his file had in some way gone awry. It is now clear that that cancellation was not one directed at his individual circumstances at all but a mere chance failing of the Centrelink computer system. Nevertheless, at the time when his newstart allowance was cancelled on this basis he would have had no idea that this was so.
46. It took some months and particularly the efforts of Mr Williams for the real reason to be explained to the applicant. The Tribunal takes into account Mr Williams’ apology for the confusions that occurred in interpreting the terms of the applicant’s initial application under the FOI Act. The problem in interpreting his initial application is in part due to the general words that the applicant used (T2: Q2004/586) but it is also due to having his newstart allowance cancelled several times so that when he requested manual and rules relating to this matter it was an easy step for Centrelink to incorrectly focus on one matter of cancellation when the applicant was referring to another.
47. Mr Williams acknowledged, as did Mr Swan in submissions, that Centrelink had not identified comprehensively the whole compass of the requests for information that the applicant originally made. Mr Williams was at pains to state that his decision dated 20 September 2004 dealt with a new FOI application in August 2004 and was not an extension of the applicant’s previous FOI requests. However, in my view, that distinction is too fine. Clearly the matters are inter-related, and Mr Williams’ decision was recognition that the initial claims had been misunderstood and addressed the misunderstanding.
48. Thus, what has happened here is that the applicant has sought to access and to change records on 14 January 2004. His requests were not properly addressed until Mr Williams’ decision on 20 September 2004. This was after the applicant had lodged the application with the Tribunal. From the discussion of the FOI provisions dealing with Tribunal review there is no specific provision that deals with what is on review in circumstances such as these: Re Alikhani and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 147
49. Under the Administrative Appeals Tribunal Act 1975 a decision remains operative despite an appeal to the Tribunal. This means that despite the acknowledgement in Mr Williams’ later decision that the earlier decisions misconstrued the application, Mr Williams’ decision is not the subject of the review here. Nevertheless I take account of the access to documents provided as a result of the decision made by Mr Williams and the efforts that he went to to explain what had occurred when the applicant’s payments were cancelled on 15 December 2003. I accept Mr Williams’ evidence that the documents provided are the only ones that are in existence that relate to the cancellation connected with a computer system error. I agree that the only material that could be provided in regard to what was a computer system fault was information about the fault and evidence that the Centrelink records indeed show that the applicant is regarded as a permanent resident for Centrelink payments.
50. In regard to the request to change documents as referred to in the document dated 14 January 2004, the Tribunal agrees that the application does not comply with the requirements of s49(b) or s51A of the FOI Act which requires an applicant to specify the document or record that requires annotation or amendment, where his application refers to folio 00062 and folio 00082. However the document identified as dated 15/12/03 described as containing the information cancellation of your NSA…you do not have a permanent resident visa does not lack the specificity required by the Act.
51. What does not appear to have been addressed is the applicant’s request made on 14 January 2004 to amend or annotate the document dated 15 December 2003. I am mindful of the operation of s61 of the FOI Act which puts an onus on the respondent to demonstrate why the Tribunal give a decision adverse to the applicant. The applicant’s claim as it relates to amending a document that he referred to and identified by its date, and the content of which was demonstrably incorrect should be granted. Centrelink in the past has agreed to annotate using a form of words that is reiterated in Mr Williams’ decision dated 20 September 2004 (T15) and was the amendment finalised by Ms Wareing. That form of words is as follows:
Read in isolation, the information on this folio may be incomplete, incorrect, out of date or misleading to the extent that it may suggest that Mr Mulder was not an Australian citizen or a permanent resident of Australia. Accordingly, these folios has been amended under paragraph 50(2)(b) of the Freedom of Information Act 1982 to record the following facts: on 24/10/2000 the Dutch Consul-General in Sydney confirmed that Mr Mulder had not reacquired Dutch citizenship after acquiring Australian citizenship in 1977 (folio 1312) and on 29/1/2002 the Minister for Immigration and Multicultural Affairs stated that his department holds no information to indicate Mr Mulder had lost the Australian citizenship which he acquired on 13 October 1977 (folio 1506).
52. It would be sensible to use this wording to amend the document dated 15 December 2003 (T11) which states that the applicant does not have a permanent resident visa and the Tribunal so decides.
DECISION
53. For these reasons the Tribunal sets aside the decision under review dated 12 May 2004 and substitutes the following decisions:
§ that the applicant be granted access to the material relating to the decision cancelling his newstart allowance on 15 December 2003. As the applicant has been given that information and/or documents as a result of a decision of Mr N Williams, Centrelink FOI officer, dated 20 September 2004, this part of the decision of the Tribunal therefore does not require that any additional access to documents be granted apart from the documents already supplied.
§ that the document, namely a decision dated 15 December 2003 cancelling the applicant’s newstart allowance, be annotated using the form of words elsewhere used by the respondent when annotating the applicant’s file in regard to his residence status, that is the form of words set out in the decision of Ms D Wareing FOI Officer, dated 13 December 2002 (T6).
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Ms MJ Carstairs, Member
Signed: Denise Burton
Administrative AssistantDate/s of Hearing 21 March, 1 and 2 June 2005
Date of Decision 11 July 2005
The Applicant appeared in person
Counsel for the Respondent Mr M Swan instructed by Australian Government Solicitor
0
1
0