PANGILINAN v Secretary of the Department of Immigration
[2014] FCCA 294
•5 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PANGILINAN v SECRETARY OF THE DEPARTMENT OF IMMIGRATION & ANOR | [2014] FCCA 294 |
| Catchwords: ADMINISTRATIVE LAW – Review by Administrative Appeals Tribunal of decision on freedom of information application. |
| Legislation: Freedom of Information Act 1982, ss.11A, 11B, 22, 24A, 47F, 57A, 58 Administrative Appeals Tribunal Act 1975, ss.25, 43, 44, 44AA |
| Cases Cited: Zhang De Yong v Minister for Immigration, Local Government & Ethnic Affairs (1993) 118 ALR 165 |
| Applicant: | MARTINIANO PANGILINAN |
| First Respondent: | SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2494 of 2013 |
| Judgment of: | Judge Cameron |
| Hearing date: | 5 February 2014 |
| Date of Last Submission: | 5 February 2014 |
| Delivered at: | Sydney |
| Delivered on: | 5 February 2014 |
REPRESENTATION
| The Applicant appeared in person by telephone |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Solicitor for the Second Respondent: | Philip Kellow |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs as agreed or, in default of agreement, as taxed.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 2494 of 2013
| MARTINIANO PANGILINAN |
Applicant
And
| SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of the Philippines who, on 17 November 2011, sought from what is now the Department of Immigration and Border Protection (“Department”), the release of certain information under the Freedom of Information Act 1982 (“FOI Act”). In answer to his request, two officers of the Department released to the applicant certain departmental files, some in full and some with information redacted pursuant to ss.22 and 47F of the FOI Act, and refused to release to him one file which enquiries indicated had been destroyed. The applicant sought a review of those aspects of the Department’s decisions which were unfavourable to him with the Australian Information Commissioner and subsequently the Administrative Appeals Tribunal (“Tribunal”). Both the Privacy Commissioner and the Tribunal upheld so much of the Department’s decisions to withhold information as it continued to press.
On 13 September 2013, pursuant to s.44 of the Administrative Appeals Tribunal Act 1975 (“AAT Act”), the applicant filed with the Federal Court of Australia an application for judicial review of the Tribunal’s decision. On 14 October 2013 the matter was transferred to this Court pursuant to s.44AA of the AAT Act.
In this case the question is not whether the Tribunal should have reached a decision on the facts different from the one which it did reach, but whether its decision was affected by an error of law. The issues relevantly presented in this case are whether the Tribunal at any point applied an incorrect test and whether it made findings which were wholly unsupported by the evidence. For the reasons which follow, the application will be dismissed.
Relevant legislation
Section 11A of the FOI Act provides that the Minister, subject to certain objections, must give access to requested documents. It relevantly provides:
11A Access to documents on request
Scope
(1) This section applies if:
(a)a request is made by a person, in accordance with subsection 15(2), to an agency or Minister for access to:
(i) a document of the agency; or
(ii) an official document of the Minister; ...
(2) This section applies subject to this Act.
Mandatory access—general rule
(3)The agency or Minister must give the person access to the document in accordance with this Act, subject to this section.
Exemptions and conditional exemptions
(4)The agency or Minister is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document.
(5)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.
(6)Despite subsection (5), the agency or Minister is not required to give access to the document at a particular time if, at that time, the document is both:
(a) a conditionally exempt document; and
(b) an exempt document:
(i) under Division 2 of Part IV (exemptions); or
(ii) within the meaning of paragraph (b) or (c) of the definition of exempt document in subsection 4(1).
Section 22 of the FOI Act allows the Minister to provide edited copies of documents which contain exempt or irrelevant matters. It relevantly provides:
22 Access to edited copies with exempt or irrelevant matter deleted
Scope
(1) This section applies if:
(a) an agency or Minister decides:
…
(ii) that to give access to a document would disclose information that would reasonably be regarded as irrelevant to the request for access; and
(b)it is possible for the agency or Minister to prepare a copy (an edited copy) of the document, modified by deletions, ensuring that:
(i) access to the edited copy would be required to be given under section 11A (access to documents on request); and
(ii) the edited copy would not disclose any information that would reasonably be regarded as irrelevant to the request; and
(c)it is reasonably practicable for the agency or Minister to prepare the edited copy, having regard to:
(i) the nature and extent of the modification; and
(ii) the resources available to modify the document; and
(d)it is not apparent (from the request or from consultation with the applicant) that the applicant would decline access to the edited copy.
Access to edited copy
(2) The agency or Minister must:
(a)prepare the edited copy as mentioned in paragraph (1)(b); and
(b) give the applicant access to the edited copy.
…
One of the public interest conditional exemptions relates to personal privacy. Section 47F of the FOI Act relevantly provides:
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).
(2)In determining whether the disclosure of the document would involve the unreasonable disclosure of personal information, an agency or Minister must have regard to the following matters:
(a) the extent to which the information is well known;
(b)whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document;
(c)the availability of the information from publicly accessible sources;
(d)any other matters that the agency or Minister considers relevant.
…
Section 11B of the FOI Act sets out the factors which must be considered in determining whether conditionally exempt documents should nevertheless be released. It provides:
11B Public interest exemptions—factors
Scope
(1)This section applies for the purposes of working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under subsection 11A(5).
(2) This section does not limit subsection 11A(5).
Factors favouring access
(3)Factors favouring access to the document in the public interest include whether access to the document would do any of the following:
(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.
Irrelevant factors
(4)The following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest:
(a)access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government;
(aa)access to the document could result in embarrassment to the Government of Norfolk Island or cause a loss of confidence in the Government of Norfolk Island;
(b)access to the document could result in any person misinterpreting or misunderstanding the document;
(c)the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;
(d)access to the document could result in confusion or unnecessary debate.
Guidelines
(5)In working out whether access to the document would, on balance, be contrary to the public interest, an agency or Minister must have regard to any guidelines issued by the Information Commissioner for the purposes of this subsection under section 93A.
Section 24A of the FOI Act relevantly provides:
24A Requests may be refused if documents cannot be found, do not exist or have not been received
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.
…
Sections 57A and 58 of the FOI Act provide:
57A Tribunal reviewable decisions—which decisions are reviewable?
(1)An application may be made to the Tribunal [ie the AAT] for review of the following decisions:
(a)a decision of the Information Commissioner under section 55K on an IC review;
…
58 Powers of Tribunal
(1)Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.
…
Section 25 of the AAT Act relevantly provides that:
25 Tribunal may review certain decisions
Enactment may provide for applications for review of decisions
(1)An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
…
Tribunal’s power to review decisions
(4)The Tribunal has power to review any decision in respect of which application is made to it under any enactment.
…
Section 43(1) of the AAT Act provides:
(1)For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
Section 44 of the AAT Act relevantly provides that:
Appeal on question of law
(1)A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. …
Section 44AA(1) of the AAT Act provides:
(1)If an appeal under subsection 44(1) or (2) is pending in the Federal Court of Australia, the Federal Court of Australia may, by order, transfer the appeal from the Federal Court of Australia to the Federal Circuit Court of Australia.
Background facts
The applicant arrived in Australia in 1991 as the holder of a one month visa. In 1993 he was detained by officers of the Department and whilst he was in detention he made an application for refugee status. The applicant’s application was refused but he was released from detention in August 1993 after joining a class action against the Minister for Immigration and in consideration of a $3,000 bond. After the class action was dismissed by the Federal Court in 1993, the applicant unsuccessfully applied for a class 816 entry permit. He left Australia in 2004 and then, from the Philippines, brought proceedings in this Court and in the Federal Court. Both those proceedings were dismissed.
The applicant believes that he was granted refugee status by the Federal Court in 1993. He claims that the $3,000 bond for his release, the undertaking given by him and letters which were allegedly written by his solicitors in relation to him joining the class action were fraudulent and designed to conceal the fact that he had been granted refugee status in 1993. In order to support his beliefs and claims, the applicant filed a freedom of information (“FOI”) application with the Department on 17 November 2011, requesting access to certain information it held. In his FOI application he sought, amongst other things, records relating to his application for refugee status in 1993, which he described as “the accurate record of the results of Federal Court decision, in 1993 of my application for refugee status under humanitarian grounds”.
First delegate’s decision
In a decision dated 12 December 2011 a departmental officer (“first delegate”) identified six departmental files as falling within the scope of the applicant’s request and released in full three of those files. The first delegate also released two other departmental files (V95101220 and CLF2003/067803) which, because they contained personal information related to third parties including driver’s licences, bank statements, property receipts, names and faxes relating to the third parties, were redacted under s.47F of the FOI Act to remove such information. The first delegate refused to release the remaining departmental file (A93036014) under s.24A(1)(b)(ii) of the FOI Act on the basis that searches of the Department’s systems and its records information management system indicated that the file had been destroyed.
On 19 December 2011 the first delegate made a decision to release two further departmental files (ABD2000/58425 and ABD2004/4372) and one set of case notes. The two files and the case notes had information redacted from them to remove third party information pursuant to s.47F of the FOI Act.
The released documents were sent to the applicant by registered post and were also emailed to him on 10 January 2012.
Internal review
In an email dated 25 January 2012 the applicant complained that the documents released to him were incomplete and contained inaccurate information. As a result the Department conducted an internal review and on 22 February 2012 the officer who conducted the review (“second delegate”) released in full four additional documents which she had identified as falling within the scope of the applicant’s request for “the accurate record of the results of federal court decision, in 1993”. Those documents were correspondence between the applicant and a Mr John Williams, copies of orders which had been made by this Court and the Federal Court in 2005 and a decision made by the Federal Court in 1993, Zhang De Yong v Minister for Immigration, Local Government & Ethnic Affairs (1993) 118 ALR 165, which related to the class action to which the applicant had allegedly been a party. The second delegate also released another departmental file which had one redacted page (A93038933) and further pages from the two departmental files released by the first delegate on 19 December 2011 (ABD2000/58425 and ABD2004/4372). She found that the pages which remained redacted in the two departmental files released on 19 December 2011 were exempt from release under s.47F and s.22(1)(a)(ii) of the FOI Act. The second delegate upheld the remainder of the 12 and 19 December 2011 decisions, although reference to the file V95101220 was limited to the second delegate’s covering letter, nothing being said about it in her statement of reasons.
Privacy Commissioner
Following the Department’s internal review, the applicant sought from the Australian Information Commissioner a review of those parts of the second delegate’s decision which refused him access to the documents he sought. On 27 November 2012 the Privacy Commissioner affirmed the Department’s decision. In reaching his decision, the Commissioner noted that departmental files indicated that the applicant had been a party to a class action proceeding in the Federal Court which led to the judgment in Zhang. He found that the Zhang proceedings had dealt with issues of natural justice and had not addressed or decided upon the applicant’s refugee status and that there was no indication that the Federal Court had made a decision about the applicant’s refugee status in 1993. In those circumstances, the Commissioner found that it was unlikely that a Federal Court decision on the applicant’s refugee status existed and that the documents which had been released to the applicant supported the Department’s view that the decision he referred to could not be located or did not exist. The Commissioner further found that the information not provided to the applicant under s.47F(1) of the FOI Act contained information and/or opinions about individuals who were not the applicant and that the public interest in maintaining those individuals’ privacy outweighed any public interest which might exist in the documents’ full disclosure.
The applicant then sought a review of the Commissioner’s decision with the Tribunal.
Tribunal
During the course of the proceedings before the Tribunal the Department released to the applicant further documents over which it had previously claimed exemptions. After the Department released those further documents to the applicant, there remained sixteen redacted documents from four departmental files (A93038933, V95101220, CLF2003/067803 and ABD2000/58425) and two sets of case notes over which the Department claimed exemptions. Of those remaining sixteen documents, the Department claimed that conditional exemptions applied to twelve of them. The Tribunal found that the information contained in those twelve documents included information regarding the migration status and details of other people, another person’s driver’s licence, bank account details, home addresses, dates of birth and passport details of other people. It found that that was personal information, some of which had been obtained by the Department through its information gathering powers, which had no current relevance to the applicant. It went on to consider whether the factors set out in s.11B(3) of the FOI Act nevertheless favoured access being granted to the applicant but found that the public interest in maintaining those individuals’ right to privacy outweighed any public interest in disclosure. The Tribunal found that the remaining four documents were irrelevant to the applicant’s request and that the exemptions made to them under s.22(1)(a)(ii) of the FOI Act had been correctly applied.
It relation to the file which had been destroyed (A93036014) the Tribunal found that the first respondent (“Secretary”) had taken all reasonable steps to find the documents which fell within the scope of the applicant’s request and that that file no longer existed. In this connection, the Tribunal noted evidence which had been provided by two departmental officers of the searches they had made. In particular, it noted evidence that the file had been created in 1993 and destroyed on 12 November 2002 under “Records Disposal Authority 902 2.2” which allowed for records relating to refused, rejected or withdrawn applications for permanent residence to be destroyed ten years after the last action date.
The Tribunal therefore affirmed the Department’s decision.
Proceedings in this Court
As noted earlier in these reasons, the applicant commenced these proceedings on 13 September 2013 by filing an application in the Federal Court. On 16 January 2014 the applicant filed a document entitled “Affidavit” but which nevertheless contained many other things not formally annexed to it. One of the documents which was attached to it and which the applicant expressly relied on at the hearing of this application was a document entitled “Grounds relied on” which had twenty-eight paragraphs. The applicant advised the Court that he relied on those grounds in place of the grounds which had been pleaded in his original application.
In summary, I have concluded that the new grounds relied on, as was the case with the grounds initially relied on, do not disclose a cause of action based on an identified error of law. I will briefly deal with each of the grounds.
Ground 1
The tribunal failed to make a primary consideration that the federal court made a final determination and granted of my application for refugee status under humanitarian upon providing evidence to the federal court through the effort of the Australian federal police who gathered evidence in support of my application for refugee status under humanitarian grounds in 1993
The consideration advanced in this ground of the application was not one which the Tribunal was required by the FOI Act to take into account.
Ground 2
The Australian federal police evidence in support of my application for refugee status under humanitarian grounds has been provide to the tribunal prior the hearing of the Tribunal
Whether the applicant was entitled to refugee status or even whether he was granted it was not an issue which the Tribunal was required to consider. Consequently, any evidence going to such issues was not relevant to whether the Department had made full FOI disclosure.
Ground 3
The tribunal failed to make a primary consideration and failure to disclose the federal court decision with regards to my application for refugee status under humanitarian grounds in 1993 the tribunal failed to make a primary consideration that I am legally entitled to get access for the copy of the federal court decision that granted my application for refugee status under humanitarian grounds in July 1993
The third ground argued that the Tribunal should have ordered the disclosure of a document whose existence has not, in fact, been proved. The Tribunal found as a fact, as was open to it, that the Department had identified all the documents in its possession which related to the applicant. In the circumstances, the third ground points to no error on the part of the Tribunal.
Ground 4
The tribunal failed to make a primary consideration and made an error of law by not affording me a fair procedural fairness to disclose the federal court decision with regards to my application for refugee status under humanitarian grounds in 1993 and I was denied of the natural justice.
This allegation is one of a denial of procedural fairness, but articulates a basis which identifies no such denial.
Ground 5
The tribunal failed to make a primary consideration made an error of law that I was deprive of my human rights and my lawful eligibility for permanent residency has not been granted to me upon the federal court granted my application for refugee status under humanitarian grounds in July 1993
The matters raised in this ground of the application were not related to the task the Tribunal was required to perform.
Ground 6
The tribunal failed to make a primary consideration that the third party unlawfully interfere the federal court decision with regards to my application for refugee status under humanitarian grounds in 1993 the federal court decision deliberately did not been release to me upon the federal court made a final determination and granted my application for refugee status under humanitarian in July 1993 my law eligibility for permanent residency and my human rights has been deprive
The matters raised in this ground of the application were not related to the task the Tribunal was required to perform.
Ground 7
The tribunal failed to make a primary consideration and made an error of law that the department unreasonably refused to release the A3936014 code file number as evidence that the federal court granted my application for refugee status under humanitarian grounds in July 1993. When I applied for the whole file of my records in late 1993 under freedom of information with apparent justification provided
Again, the applicant appears to address an issue unrelated to the Tribunal’s task.
Ground 8
The tribunal failed to make a primary consideration that the department unreasonably destroyed the certain file number A3936014 in 1998 with no prior appropriate notification of an intention to destroy this file number coded A3936014 and the department subsequently claimed that the A39306014 was actually destroyed in 2002 as it was ten years in archive according to the records disposal authority
The relevant task for the Tribunal was not whether the file had been destroyed for a proper reason or in a proper way, but whether it still existed. This ground does not raise any point of error on the Tribunal’s part.
Ground 9
The tribunal failed to make a primary consideration even if it is destroyed in 2002 the calculation years in archive was not even ten years therefore the department making unreasonable excuses not disclosing this file number A3936014
The relevant task for the Tribunal was not whether the file had been destroyed for a proper reason or in a proper way, but whether it still existed. This ground does not raise any point of error on the Tribunal’s part.
Ground 10
10) The tribunal failed to make a primary consideration that the department sent me a letter in late 1993 notice of an intention to destroy my records which I did not give my consent to destroy my records where on my part I do believe it so apparent there is an intent of unfair practices which I have fear to happen unfortunately the letter has been misplace due to unexpected circumstances and my fear comes to reality of diverting my refugee status to 816 resolution which is totally irrelevant to my refugee status the 816 resolution was so unfair and I was helpless and unable to stopped the 816 unfair practices
The tribunal failed to make a primary consideration that 816 has required me to comply the following criteria such as are follows 6 carpentry training course English test proficiency medical examination all this irrelevant criteria or condition where the department advised me to comply where on my part it left me no option but follow on whatever the department advise me to do so all this irrelevant condition has been successfully passed on completed with certificate again my lawful eligibility for permanent residency and eligibility for citizenship has not been granted
In relation to the first part of the tenth ground, the relevant task for the Tribunal was not whether the file had been destroyed for a proper reason or in a proper way, but whether it still existed. This part of the ground does not raise any point of error on the Tribunal’s part.
As for the second part of ground ten, the matters it raised were not related to the task the Tribunal was required to perform.
Ground 11
11) The tribunal failed to make a primary consideration failure to disclose the federal court decision that granted my refugee status in July 1993 as the third party unlawfully interfere of not disclosing the federal decision with regards to my application for refugee status in 1993 in order to justify and validate the 816 resolution which is totally irrelevant to my refugees status
The matters raised in this ground of the application were not related to the task the Tribunal was required to perform.
Ground 12
12) The tribunal failed to make a primary consideration and made an error of law that the six pages of fabricated documents with forged signature of my former solicitor mr simon wood of the barlow and co. released by the department was against the law and its illegal to forged the signature of any documents including the reproduction and fabricating of any letter with forged signature it so apparent there is a deliberate intent of cover up and misleading information
The matters raised in this ground of the application were not related to the task the Tribunal was required to perform. Also, it is not apparent that any question of forgery was raised with the Tribunal.
Ground 13
13) The tribunal failed to make a primary consideration that the federal magistrate court dismissed my application in 2005 due to my inability to appear before the court and my inability to hire a legal practitioner to act on my behalf the federal magistrate court dismissed my application not on the basis of the issues I raised before the court and I was unaware how to get access on file of my records to the department until I have decided to make an appeal for ministerial intervention the ministerial intervention gave me the opportunity to get access on under 424 form and I have clearly state and made a request for the copy of the federal court decision with regards to my application for refugee status under humanitarian grounds in 1993
The matters raised in this ground of the application were not related to the task the Tribunal was required to perform.
Ground 14
14) The department did not release the federal court decision with regards to my application for refugee status as the department asserted the federal court decision is no longer exist and its been destroyed
The fourteenth ground of the application does not allege error on the part of the Tribunal.
Ground 15
15) The tribunal made error of law affirmed the department of not complying of releasing the exempt documents in full as according the scope folio stated and read before me by the department during the direction made by the tribunal as the department released only the repeated redacted documents and did not comply on the tribunal direction of disclosing the exempt documents in full as agreed by the department
There is no evidence of the Tribunal having made any direction of the sort asserted in this ground of the applicant’s case. In any event, the ground does not allege error in the Tribunal’s decision.
Ground 16
16) The tribunal failed to make a primary consideration of not disclosing that the third party secretly fabricated an issue to the department with regards to my character in late 1993 right after my release from the detention center in order to justify and expedite the actual plan of making my status more complex issues and to validate the 816 resolution which is irrelevant to my refugee status the 816 was so unfair and unethical practices the department released my character assessment after my unlawful deportation in 2004 as according to the department assessment I have unpredictable character I do believe I was even silently accused of being a mentally impaired in order to invalidate whatever I have stated as this is was initiated by the party on my part all I have no violation or break any law of Australia I have no any criminal records during my longest stay in Australia as I have considered Australia as my second home I paid my taxes religiously I run my own construction business.
In his application to the Tribunal the applicant alleged the involvement of an unidentified third party. It does not appear that this issue was elaborated on or even explained to the Tribunal. In any event, this issue is not relevant to the question whether the Tribunal’s decision concerning the extent of the Department’s disclosure of documents to the applicant was effected by legal error.
Ground 17
17) The tribunal failed to make primary consideration that the evidence I have provided to the tribunal of my successful completion of my one year reporting condition to the department from august 1993 up to august 1994 that the third party unlawfully interfere the immigration internal affairs with regards to my immigration status in order not grant my lawful eligibility for permanent residency and my human rights once again has been deprive
For the reasons given in relation to ground 16, this ground also does not disclose error on the Tribunal’s part.
Ground 18
18) The tribunal failed to make a primary consideration that the department wrongly asserted that I was released from immigration detention center only upon lodging a three thousand dollars bond and my application for refugee status has been refused in June 24 as the department final year date summary of my refusal of my application for refugee status the department claimed that the status of my application for refugee status under humanitarian grounds would be pending on the outcome of the zhang de yong case where the zhang de yong was refuse on October 1993. My application for refugee status under humanitarian grounds was determined and granted by the federal court upon providing an evidence through the effort of the Australian federal police in support of my application for refugees status in July 1993 the Australian federal police gathered an evidence in June 30 1993 and forward to my solicitor the barlow and co. in July 1993
The matters raised in this ground of the application were not related to the task the Tribunal was required to perform.
Ground 19
19) The tribunal made an error of law that the rectified fabricated letter documents dated July 22 1993 tried to mislead me with forged signature of my former solicitor Mr Simon Wood of the barlow and co. I strongly object that this misleading information and is not practical for the writer to make such any deliberation whereas my application for refugee status in 1993 was under the proceeding of the federaI court therefore only the honorable presiding judge of the federal court has the discretion to make such any deliberation.
The matters raised in this ground of the application were not related to the task the Tribunal was required to perform.
Ground 20
20) The tribunal failed to make a primary consideration that the department released the incomplete and inaccurate information the summary of the federal court proceeding with regards to my application for refugee status in 1993 the department released only from the month of march 1993 date year of my apprehension up to the month on June 24 1993 where the month June 24 1993 was my final rejection of my application for refugee status due to lack of evidence and the month of august 18 1993 where I was released from immigration detention center the month of July 1993 was not included in the summary of the federal court proceeding released by the department
The matter identified in the twentieth ground relied upon by the applicant was not one which the Tribunal was required to take into account, with the consequence that failure to do so does not amount to legal error.
Grounds 21 - 25
21) The month of July 1993 is the month where the federal court made a final determination granted my application for refugee status under humanitarian ground after providing evidence to the federal court the Australian federal police provided the evidence dated June 30 1993
22) The tribunal failed to make a primary consideration that in 2003 I personally went to the department of immigration seeking for permission to travel for a few days to visit my ailing old mother as my father passed away I did not have the opportunity to attend his funeral the department simply accused me of being an overstay and unlawful resident I was instead detained me in marybyrnong detention center rather than grant my wishes to visit my ailing old mother for a few days.
23) The department claimed my records could not be found in any records files in the computer upon my wishes of seeking permission to travel to visit my ailing old mother and the department made unlawful excuses to put me in detention and simply wrongly accused me of being unlawful resident I was so tearful at that time of my detention and apprehension that my libety has been violated by the department
24) The department offered me two months visa in exchange of my liberty with ten thousand dollars security bond check issued to the department I accept the offer the two months visa in order to liberate myself from unlawful act of the department and seek for legal assistance unfortunately the legal practitioner I hired has done nothing to stopped the unlawful and unfair deportation order by the department.
25) In late 2003 I personally went to the department applying for the copy of the federal court decision with regards to my application for refugee status under humanitarian grounds in 1993
I made an application to the department under the freedom of information for the copy of the federal court decision regarding my application for refugee status in 1993 in order to prove and contest the department of wrongly accusing me of being unlawful resident
The matters raised in these grounds of the application were not related to the task the Tribunal was required to perform.
Ground 26
26) The FOI claimed the federal court decision was no longer exist and its been destroyed according to the department with no specific date provided when the federal court decision information has been actually destroyed again the department unlawfully refused to release the federal court decision in order to execute the unfair and unlawful deportation order
The twenty-sixth ground of the application appears to express disagreement with a finding of fact by the Tribunal. The finding in question was open to the Tribunal and thus no legal error is disclosed.
Ground 27
27) The department advised me the full force would be applied to me if I resist to stay in the country it left me no option but to depart the country even its against my will to do so
The matter raised in this ground of the application was not related to the task the Tribunal was required to perform.
Ground 28
28) The tribunal made an error of law of long delayed before the tribunal made and reaching its final decision that took almost eleven weeks its not within the ligitimate time
A delay of eleven months in the delivery of the decision is not, at least in the circumstances of the present case, indicative of legal error nor legal error itself.
Generally
Even if I am wrong in my conclusions as to whether the amended grounds of the applicant’s application disclose a cause of action based on an indentified error of law, I nevertheless find that the Tribunal determined the applicant’s review according to law. In brief, the Tribunal applied the correct tests as required by the FOI Act and arrived at a conclusion open to it on the evidence. Specifically, I adopt and repeat paras.35, 37 and 38 of the Secretary’s written submissions dated 31 January 2014:
35.Section 24A of the FOI Act allows access to a document to be refused if the agency takes all reasonable steps to find the document and the document cannot be found or does not exist.
…
37.It is further submitted that there was no legal error in the Tribunal’s conclusion that the claimed exemptions it considered should apply.
38.There was no error in the Tribunal’s consideration of whether the personal privacy exemption applied and nor, in the first respondent’s submission, is any error demonstrated by the Tribunal’s assessment that access to the document would, on balance, be contrary to the public interest under s 11B of the FOI Act. Nor is there any error of law in the Tribunal’s finding that four documents were irrelevant to the request and fell within s 22(i)(a)(ii) of the FOI Act.
Conclusion
For these reasons I conclude that no legal error on the part of the Tribunal has been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 21 February 2014
7
0
3