Pangilinan and Secretary, Department of Immigration and Citizenship
[2013] AATA 574
•16 August 2013
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2012/5680
GENERAL ADMINISTRATIVE DIVISION )Re: Martiniano Pangilinan
Applicant
And: Secretary, Department of Immigration and Border Protection
Respondent
DIRECTION
TRIBUNAL: Ms N Bell, Senior Member
DATE: 10 October 2013
PLACE: Sydney
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application to include a citation to paragraph 12 of the decision in the following manner:
Paragraph 12 should read:
12. I note that the Information Commissioner was satisfied that the Secretary took all reasonable steps to find the documents. The Commissioner was satisfied that the Secretary made enquiries of those officers who assisted in locating the documents and in relation to the additional searches the Department undertook in meeting the requirements of the Guidelines of the Office of the Australian Information Commissioner. (See ‘R’ and Department of Immigration and Citizenship [2012] AICmr 32)
.......[Sgd]............................................................
Ms N Bell, Senior Member
[2013] AATA 574
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5680
Re
Martiniano Pangilinan
APPLICANT
And
Secretary, Department of Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 16 August 2013 Place Sydney The decision under review is varied to reflect the release at the hearing by the Respondent to the Applicant of documents over which the Respondent had previously claimed exemptions. The Tribunal affirms that part of the decision under review that refuses access to file number A93036014 which has been destroyed and that part of the decision that refuses access to the following documents on the basis of claimed exemptions:
File No. Folio Decision A93038933 86 Exempt in part V95101220 144 Exempt in full 140 Exempt in full 139 Exempt in part 112 Exempt in part 111 Exempt in part 109 Exempt in part 100 Exempt in part 99 Exempt in part CLF2003/067803 154 Exempt in part 75 Exempt in part ABD2000/58425 20 Exempt in full 24 Exempt in part 131 Exempt in full Documents from ICSE database 21 Exempt in part Further Documents from ICSE database 19 Exempt in part ........[Sgd]................................................................
Ms N Bell, Senior Member
CATCHWORDS
FREEDOM OF INFORMATION – whether all reasonable steps taken in locating documents – document lost or non-existent – public interest exemptions – privacy exemptions – personal information – whether exemptions correctly applied
LEGISLATION
Freedom of Information Act 1982 (Cth), ss 11A, 11B, 24A, 47F
REASONS FOR DECISION
Ms N Bell, Senior Member
16 August 2013
Martiniano Pangilinan is a citizen of the Philippines. He arrived in Australia on a one month visa in 1991. In 1993 he applied for a protection visa after having been taken into detention. His application for refugee status was refused. He was released from detention in consideration of a bond and his having joined a class action. After the class action was dismissed by the Federal Court Mr Pangilinan applied for an entry permit. This was ultimately unsuccessful. He finally left Australia in 2004. Two proceedings sought to be brought by Mr Pangilinan in the Federal Magistrates Court and the Federal Court in 2005 were dismissed.
Mr Pangilinan firmly believes he was granted refugee status in 1993 and that the payment of a $3000 bond for his release from detention, the undertaking given by him, and letters to him from his solicitors documenting this are inventions designed to mislead.
Mr Pangilinan is convinced that the Federal Court granted him refugee status in 1993. His purpose is to uncover records of this.
ISSUES
Mr Pangilinan made an application under the Freedom of Information Act 1982 (Cth) in the following terms:
[t]he documents that I would like to request are as follows
A record of my application for refugee status under humanitarian in 1993.
The accurate record of the results of federal court decision, in 1993 of my application for refugee status under humanitarian ground. [sic]
In a letter attached to that request Mr Pangilinan also stated that he sought:
The record of my application for refugee status under humanitarian grounds. The accurate results of the Federal Court of Australia decision, on my application for refugee status under humanitarian grounds in 1993. This information was refuse to release by the Department in 2004.
The application form which called 816 or 818 submitted by Godfrey Stewart in late 1994.
The record of my accomplishment of my reporting condition from late 1993 up to 1994 with three thousand dollar bond refunded back to me.
The record of my certification, are as follow English test, medical examination trade certificate including old passport.
The whole record of 816 or 818 history submitted by Godfrey Stewart and the record of my deportation in 2004.
The Secretary released a number of files, except for file A93936014 which it contended had been destroyed, and claimed exemptions under sections 47F, 11A and 11B of the Act over some documents or parts of documents, on the ground that they contain personal information of third parties and that it is not in the public interest to release them.
The issues for me to consider are:
(i)Whether the Secretary has taken all reasonable steps to find documents falling within the scope of Mr Pangilinan’s request; and
(ii)Whether the Secretary correctly refused Mr Pangilinan’s access to documents over which exceptions were applied.
DID THE SECRETARY TAKE ALL REASONABLE STEPS?
Section 24A of the Act provides:
Document lost or non-existent
(1) An agency or Minister may refuse a request for access to a document if:
(a) all reasonable steps have been taken to find the document; and
(b) the agency or Minister is satisfied that the document:
(i) is in the agency’s or Minister’s possession but cannot be found; or
(ii) does not exist.
Document not received as required by contract
(2) An agency may refuse a request for access to a document if:
(a) in order to comply with section 6C, the agency has taken contractual measures to ensure that it receives the document; and
(b) the agency has not received the document; and
(c) the agency has taken all reasonable steps to receive the document in accordance with those contractual measures.
Antonette Sarangaya, the Assistant Manager of the Access Team in the NSW FOI and Subpoenas Section of the Department of Immigration and Citizenship, deposed as to the searches she conducted on the Department’s systems and databases, known as TRIM and ICSE relating to Mr Pangilinan’s request. She conducted the search on three separate occasions in February 2012 and in May 2013. The searches all yielded the same results. She also conducted a search relating to Mr Pangilinan’s visa history which yielded records which had already been provided to Mr Pangilinan, with the exception of some records over which exemptions were claimed.
In relation to destroyed file A93036014, Ms Sarangaya’s inquiries of the Department’s records management showed the file was created in 1993 and destroyed on 12 November 2002 under Records Disposal Authority 902 2.2 which states:
RDA 902 2.2 ENTRY FOR PERMANENT RESIDENCE
Notes: Refused / rejected / Withdrawn or applications where no further action has occurred
Destroy 10 years after action completed
Destroy Triggers: Destroy 10 Years after Last Action Date
Ms Nada Donevska, an administration officer of the Department, deposed as to additional searches she conducted including searches on the Commonwealth Courts Portal website to ascertain whether other proceedings existed.
I note that the Information Commissioner was satisfied that the Secretary took all reasonable steps to find the documents. The Commissioner was satisfied that the Secretary made enquiries of those officers who assisted in locating the documents and in relation to the additional searches the Department undertook in meeting the requirements of the Guidelines of the Office of the Australian Information Commissioner.
In accordance with section 24A(1), I am satisfied that the Secretary took all reasonable steps to find the documents within the scope of Mr Pangilinan’s request and that the documents comprising file number A93036014 no longer exist.
ARE THE EXEMPTIONS CORRECTLY APPLIED?
At the hearing of this application, the Secretary advised that a large number of documents over which it had previously claimed exemptions would now be released to Mr Pangilinan. I understand that these documents have now been provided to Mr Pangilinan. This leaves just 16 documents over which exemptions are claimed in whole or in part.
Section 47F of the Act provides, in part:
47F Public interest conditional exemptions—personal privacy
General rule
(1) A document is conditionally exempt if its disclosure under this Act
would involve the unreasonable disclosure of personal information
about any person (including a deceased person).
Personal information is defined in s 4 of the Act to mean:
"personal information" means information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
The Secretary says this conditional exemption applies to 12 of the 16 remaining documents.
The information contained in the documents listed in the schedule annexed to Ms Sarangaya’s affidavit includes information regarding the migration status and details of other people, another person’s driver licence, bank account details, home addresses, dates of birth and passport details of other people. This information is clearly personal information which it is submitted a person would not wish to be disclosed. It appears that some of the information was obtained by the Department through its information gathering powers. The information appears to be of no current relevance to Mr Pangilinan.
Section 11A(5) of the Freedom of Information Act provides that “the agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.” Section 11B of the Act sets out factors to be considered in determining whether access to a conditionally exempt document would, on balance, be contrary to the public interest.
The factors set out in section 11B(3) of the Act that favour access are:
(a) promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(b) inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
(d) allow a person to access his or her own personal information.
None of the 12 documents concerned would achieve or promote these ends. The public interest in maintaining the individuals’ rights to privacy outweighs any public interest in disclosure.
In respect of the other four documents, the Secretary says these fall outside the scope of his request because they are obviously misfiled or simply irrelevant to Mr Pangilinan’s request.
Section 22(i)(a)(ii) of the Act provides:
(1) This section applies if:
(a) an agency or Minister decides:
(i) to refuse to give access to an exempt document; or
(ii) that to give access to a document would disclose information that would reasonably be regarded as irrelevant to the request for access; and …
I am satisfied that the four documents are irrelevant to the Mr Pangilinan’s request.
The exemptions were correctly applied.
DECISION
The decision under review is varied to reflect the release at the hearing by the Respondent to the Applicant of documents over which the Respondent had previously claimed exemptions. The Tribunal affirms that part of the decision under review that refuses access to file number A93036014 which has been destroyed and that part of the decision that refuses access to the following documents on the basis of claimed exemptions:
File No. Folio No. Description of Contents Decision A93038933 86 File note including information not related to this applicant or his application Exempt in part: deletion of the words at [3] after 'by the name of' until 'as the similar' and after 'Martiniano' until the end of [3]. Deletion after signature of officer for remainder of page.
V95101220
144
A Departmental record relating to the migration status of a third party
Exempt in full.
140
A Departmental record relating to migration status of a third party including date of birth, address and other information
Exempt in full.
File No. Folio No. Description of Contents Decision 139
Information obtained by the Department using information gathering powers about address and account details of a third party
Exempt in part: deletion of the words in the table below the words ‘Address, Account name, Connection details’
112
Information obtained by the Department using information gathering powers about address and account details of a third party
Exempt in part: deletion of the words after “Preston” until ‘f100' and after ‘1994’ until ‘EWP’.
111
Information obtained by the Department using information gathering powers about address and account details of a third party
Exempt in part: deletion of the words in the table below the words ‘Address, Date of Connection, Account holder’s name’.
109
File note. Third party date of birth, licence and pension details
Exempt in part: deletion of the words after ‘3072’ until footer.
100 Information obtained by the Department using information gathering powers about address and account details of a third party
Exempt in part: deletion of the words in the table below the words ‘Address, Date of Connection, Account holder’s name’.
File No. Folio No. Description of Contents Decision 99 Information obtained by the Department using information gathering powers about address and account details of third parties and date of birth and passport information about one party
Exempt in part: deletion of the words in the table below the words 'Address, Date of Connection, Account holder's name' and handwritten words continuing below table CLF2003/067803 154 Schedule of matters referred to Minister for Immigration for consideration under s 351 of the Migration Act 1958. Exempt in part and out of scope: deletion of all names and ID numbers prior to and after applicant in table.
75 Third party driver's licence and telephone number
Exempt in part: deletion of all words except for handwritten note. ABD2000/58425 20 Detainee request form relating to third party
Exempt in full. 24 Property receipt – address relating to third party in relation to another detainee Exempt in part and out of scope: deletion of the words after ‘Pace’ until 'being the property of'.
131 Visitor application form for visit to another detainee by third party
Exempt in full.
File No. Folio No. Description of Contents Decision Documents from ICSE database 21 Case note- third party information Exempt in part: deletion of the words after 'note details' until '4/6/1997'
Further Documents from ICSE database 19 Case note relating to third party Exempt in part: deletion of the words after Martiniano’ in last row of records under the column ‘information’
I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bell. .......[Sgd].................................................................
Associate
Dated 16 August 2013
Date of hearing 3 June 2013 Applicant In person Solicitors for the Respondent L Buchanan, Australian Government Solicitor
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