Re Callejo and Department of Immigration and Citizenship - [2010] AATA 244

CATCHWORDS – FREEDOM OF INFORMATION – whether disclosure unreasonable disclosure of personal information – meaning of “matter relating to” person requesting access - whether s 41(2) creates personal right of access in person requesting access – whether unreasonableness of disclosure assessed by reference to disclosure to that person – whether words “do not have effect” negate such a right – whether disclosure would found action for breach of confidence – what required to found such an action – whether endangering the life or physical safety of any person extends to psychological endangerment – decision varied.

Attorney-General’s Department v Cockcroft (1986) 64 ALR 97
Australian Broadcasting Commission v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199; 185 ALR 1; 76 ALJR 1
Australian Competition & Consumer Commission v Visy Paper Pty Limited [2000] FCA 1640
B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279
Bartlett v Secretary, Department of Social Security (1997) 49 ALD 380
Bray and Smith v Workers Rehabilitation Corporation and Stanley [1994] SASC 4478; (1994) 62 SASR 218
Cheney v Sydney West Area Health Service [2008] NSWADTP 29
Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429; 100 ALR 111; 13 AAR 261; 23 ALD 1
Commodore Homes WA Pty Ltd v Goldenland Australia Property Pty Ltd & Anor [2007] WASC 146
Commonwealth of Australia v John Fairfax & Sons Limited and Others [1980] HCA 44; (1981) 55 ALJR 45
Commonwealth Bank of Australia v Parform Pty Ltd [1995] FCA 1445; (1995) 13 ACLC 1309
Corrs Pavey Whiting and Byrne v Collector of Customs, Victoria [1987] FCA 266; (1987) 14 FCR 434; 13 ALD 254
Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234; (1984) 154 CLR 234; (1984) 52 ALR 231; (1984) 58 ALJR 287
Department of Education and Training v GJ (GD) [2009] NSWADTAP 33
Department of Social Security v Dyrenfurth [1988] FCA 148; (1988) 8 AAR 544
Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167
Esso Australia Resources Ltd v Plowman [1995] HCA 19; (1995) 183 CLR 10; 128 ALR 391; (1995) 69 ALJR 404
Fomiatti v University of Western Sydney (No. 2) [2006] NSWADT 210
Johns v Australian Securities Commission [1993] HCA 56; (1993) 116 ALR 567
Kristoffersen v Department of Employment Workplace Relations and Small Business [2002] FCA 55
Lurie v Lurie 107 LJ Ch 289
McKenzie v Secretary, Department of Social Security [1986] AATA 145
McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423
McKinnon and Powell v Department of Immigration and Ethnic Affairs [1995] AATA
364; (1995) 40 ALD 343
Mersey Docks and Harbour Board v Henderson Bros (1888) 13 AC 595
Meyers v Casey (1913) 17 CLR 90; 19 ALR 537
Moorgate Tobacco Co Ltd v Phillip Morris Ltd (No 2) [1984] HCA 73; (1984) 156 CLR 414; 56 ALR 193
News Corporation Ltd v National Companies and Securities Commission [1984] FCA 36; (1984) 1 FCR 64
Pacanowski v Australian Securities Commission [1995] FCA 1259; (1995) 57 FCR 173
Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Director General, Premier’s Department [2002] NSWADT 277
R v Shoreditch County Court Registrar, ex p. Saxon Finance Corporation
Re Anderson and Australian Federal Police (1986) 11 ALD 355
Re Bashari and Ors and Minister for Immigration and Multicultural Affairs [2006] AATA 839
Re Bunting and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 145; (2006) 91 ALD 698
Re Carter and Department of Health (ACT) [1995] ACTAAT 101
Re Chandraand Minister for Immigration and Ethnic Affairs
Re Kamminga and Australian National University [1992] AATA 84; (1992) 26 ALD 585; (1992) 15 AAR 297
Re Millis and Australian Archives [1997] AATA 361; (1997) 47 ALD 427
Re Nitas and Minister for Immigration and Multicultural Affairs [2001] AATA 392
Re Slater and Cox (Director-General, Australian Archives) (1988) 15 ALD 20
Re Sullivan v Department of Industry, Science and Technology and Australian Technology Group Pty Ltd [1997] AATA 192
Re Williams and Registrar of Federal Court of Australia [1985] AATA 226; (1985) 3 AAR 529
Repatriation Commission v Smith (1987) 15 FCR 327; 74 ALR 537
Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another (1992) 108 ALR 163
Shi v Migration Agents Registration Authority [2008] HCA 31
Smith Kline & French Laboratories (Aust) Limited v Secretary, Department of Community Services and Health (1990) 22 FCR 73
SOK v Minister for Immigration and Citizenship [2008] HCA 50; (2008) 249 ALR 651; (2008) 104 ALD 464; (2008) 83 ALJR 25
The News Corporation Ltd v National Companies and Securities Commission (1984) 5 FCR 88
Victoria Police v Marke [2008] VSCA 218
Warringah Council v Moy [2005] NSWLEC 416; (2005) 142 LGERA 343
Watt v Forests NSW [2007] NSWADT 197
Wiseman v The Commonwealth [1989] FCA 434
Young v Wicks [1986] FCA 169; (1986) 13 FCR 85

Archives Act 1983, s 33
Corporations Law ss 459E(2); 459P
Environmental Planning and Assessment Act 2000 (NSW) ss 109ZH and 125(1)
Family Law Act 1975, s 10D(4)(a), 10H(4)(a), 60B(1)(b), 60CC(2)(b), 64D(3)(a), 67ZA(3)(b)
Freedom of Information Act 1982 ss 4(1); 11; 15(1); 27A, 33; 34; 35; 37, 41, 45, 58F, 59A, 59F, 61(1) and (2); 91; 92
Freedom of Information Act 1989 (ACT)
Freedom of Information Act 1989 (NSW) ss 5, 13(a) and 59A
Freedom of Information Act 1992 (Qld), s 46
Freedom of Information Act 1991 (SA), Schedule 1, cl 13(a)
Freedom of Information Act 1982 (Vic), 33(1)
Freedom of Information Amendment Act 1983, Act No. 81 of 1983, s 23
Freedom of Information Amendment Act 1986, Act No. 111 of 1986, s 14
Freedom of Information Amendment Act 1991 No. 137 of 1991, ss 3, 7 and 29
Law and Justice Amendment Act 2004, s 3, Schedule 1, item 24
Statute Law Revision Act 1996, s 3(1), Schedule 5, item 64
Veterans’ Entitlements Act 1986 s 120(4)

Environmental Planning and Assessment Regulation 2000 (NSW) rr 145
Migration Regulations 1994 rr 1.22(1); 1.23; 1.23(9); 1.23(10)(c)(ii); 1.24; 1.26; 1.27; Schedule 1, Part 1 (cl 1129); Part 2 (cl 1220A(4)); Schedule 2 (cll 100.221(2)(a)(i); 100.221(2)(b); 100.221(2)(c); 100.221(2A), (3) and (4); and 309.21(2)(a))

DECISION AND REASONS FOR DECISION [2010] AATA 244

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          2009/1857
GENERAL ADMINISTRATIVE DIVISION     )

Re ROMEO GERARD V CALLEJO JR

Applicant

AndDEPARTMENT OF IMMIGRATION AND CITIZENSHIP
Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  8 April 2010
Place:  Melbourne

Decision:The Tribunal decides:
1.in relation to document 1, to:
(1)affirm the respondent’s decision that:
(a)it is exempt under s 41(1) of the Freedom of Information Act 1982 (FOI Act) in so far as it contains personal information relating to a person or persons other than the applicant; and
(b)that access be granted to a copy of the document from which the matter relating to the applicant remains and which has been prepared in accordance with s 22 of the FOI Act;

2.in relation to document 2, to:
(1)set aside that part of the respondent’s decision that claims folios 159 to 161 are exempt under s 41(1) of the FOI Act; and
(2)substitute a decision that:
(a)folios 159 to 161 are not exempt under s 41(1);
(b)affirm the decision that folio 158 is exempt under

s 41(1); and
(c)affirm the decision that folios 158 to 161 are exempt under s 45 of the FOI Act;

3.in relation to document 3, to:
(1)affirm the respondent’s decision that the document is exempt under s 41(1);

4.in relation to document 4, to:
(1)affirm the respondent’s decision that:
(a)it is exempt under s 41(1) of the Freedom of Information Act 1982 (FOI Act) in so far as it contains personal information relating to a person or persons other than the applicant;

(2)in relation to matter relating to the applicant:
(a)set aside the respondent’s decision that it is exempt under s 41(1); and
(b)substitute a decision that, but for my decision regarding s 45, it would have been reasonably practicable to make a copy of the document under s 22;

(3)affirm the respondent’s decision that the whole of the document is exempt under s 45;

5.in relation to document 5: to:
(1)affirm the respondent’s decision that it is exempt under s 41(1);

6.in relation to document 6, to:
(1)affirm the respondent’s decision that:
(a)it is exempt under s 41(1) of the Freedom of Information Act 1982 (FOI Act) in so far as it contains personal information relating to a person or persons other than the applicant;

(2)in relation to matter relating to the applicant:
(a)set aside the respondent’s decision that it is exempt under s 41(1); and
(b)substitute a decision that, but for my decision regarding s 45, it would have been reasonably practicable to make a copy of the document under s 22;

(3)affirm the respondent’s decision that the whole of the document is exempt under s 45;

7.in relation to each of documents 7, 8, 9, 10 and 11, to:
(1)affirm the respondent’s decision that:
(a)it is exempt under s 41(1) of the Freedom of Information Act 1982 (FOI Act) in so far as it contains personal information relating to a person or persons other than the applicant;

(2)in relation to matter relating to the applicant:
(a)set aside the respondent’s decision that it is exempt under s 41(1); and
(b)substitute a decision that, but for my decision regarding s 45, it would have been reasonably practicable to make a copy of the document under s 22;

(3)affirm the respondent’s decision that the whole of the document is exempt under s 45;

8.in relation to each of documents 12 and 13, I: affirm the respondent’s decision;

9.in relation to document 14, to:
(1)affirm the respondent’s decision that:
(a)it is exempt under s 41(1) of the Freedom of Information Act 1982 (FOI Act) in so far as it contains personal information relating to a person or persons other than the applicant;

(2)in relation to matter relating to the applicant:
(a)set aside the respondent’s decision that it is exempt under s 41(1); and
(b)substitute a decision that, but for my decision regarding s 45, it would have been reasonably practicable to make a copy of the document under s 22;

(3)affirm the respondent’s decision that the whole of the document is exempt under s 45;

10.in relation to document 15, to:
(1)set aside the decision in so far as it relates to the section described as question 14 on folio 313;
(2)substitute for that part of the decision, a decision that it is not exempt under s 41(1);
(3)otherwise affirm the decision; and

11.in relation to document 16, to:
(1)set aside the decision in so far as it relates to the first word on the sixth line on folio 334 to the end of the letter on folio on 332;
(2)substitute a decision that it is not exempt under either s 41(1) or s 37(1)(c); and
(3)otherwise affirm the decision.

S A FORGIE
Deputy President

REASONS FOR DECISION

On 25 September 2008, Mr Callejo asked the Department of Immigration and Citizenship (Department)[1] for access to a file he identified by number and to any documents referring to him in respect of his sponsorship of his former wife for a spouse visa.[2] His wife was then known as Ms Maria Contessa Callejo. He did so under the Freedom of Information Act 1982 (FOI Act). A number of documents were identified as coming within his request. He has been granted access to a number of documents but has been refused access to some of those documents, or to parts of them. Refusal was based on claims that the documents were exempt under one or more provisions of the FOI Act. They were; s 41(1) (access would be an unreasonable disclosure of personal information concerning a person other than Mr Callejo); s 45 (access would found an action for breach of confidence) disclose material obtained in confidence); and s 37(1)(c) (disclosure would endanger life or physical safety).

[1] The appropriate respondent is the Department. I note that the Tribunal and the parties have, until now, referred to the Minister for Immigration and Citizenship (Minister) as the respondent. This cannot be so. Mr Callejo directed his request to the Department, which is an agency within the meaning of s 4(1) of the FOI Act, and not to the Minister. A decision may be made on behalf of an agency by its responsible Minister or its principal officer (ie the Secretary of the Department: s 4(1)) or by an officer of the agency acting in accordance with arrangements approved by the responsible Minister or responsible officer: FOI Act, s 23(1). The agency remains the respondent and the responsible Minister a person who may make a decision on its behalf in respect of a request. An analogy can be drawn with the Secretary of the Department of Employment and Education and Workplace Relations and officers of Centrelink who make decisions on the Secretary’s behalf under arrangements made under the Commonwealth Services Delivery Agency Act 1997. The Secretary remains the person with statutory responsibility for making the decision, and so is the respondent, even though officers actually make them under delegated authority.

[2] T documents at 57-58

The issue in this case is whether those parts of the documents are exempt from disclosure under one or more provisions of the FOI Act. I have decided that, with very limited exceptions, most of the documents are exempt as claimed.

In the course of the hearing, it became apparent that Mr Callejo is deeply concerned that allegations may have been made that he is an alleged perpetrator of family violence. Those allegations would have been made in support of an application for a visa made by his former wife, Mrs Maria Contessa Callejo, in respect of herself and her daughter. I have taken some time to set out the circumstances in which the Department may make a finding that an applicant for a visa has suffered family violence and that a person has committed family violence. It is a finding made after an enquiry whose parameters are set by the Migration Regulations and which does not give the alleged perpetrator an opportunity to rebut the claims, lead any evidence to the contrary or explain his or her actions. Its limitations are no doubt behind the prohibition upon evidence of it being given in a court or tribunal. That is to say, information that a visa has been obtained on the basis of an allegation of family violence has a very limited purpose and generally has a very limited dissemination. I have suggested that, if Mr Callejo feels that there may be information of this sort on the Department’s file, it is arguable that he could ask the Department to attach an annotation to the file setting out the information that he would want it to know. It is arguable that he could do so under Part V of the FOI Act on the basis that he has lawfully had access to documents, if only in part, and that the information is incomplete.

THE REQUEST

In a letter dated 25 September 2008, Mr Callejo’s solicitors requested a copy of his file under the FOI Act. They wrote that they required of the Department “… all copies of all documents currently in your possession for the above
[3] T documents at 54-60
[Mr Callejo] in respect of his sponsorship/nomination for the visa application …” of Ms Paz.[3] “Paz” was his wife’s surname before her marriage.

The Department identified certain documents as falling within the terms of Mr Callejo’s request and gave him partial access to four folios. It claimed that the deleted material and the other folios it had identified were exempt under
s 41(1) of the FOI Act.[4]

[4] T documents at 61-63

After he sought internal review of the Department’s decision, it notified him that it had to consult the individuals before making a decision.
Mr Callejo’s solicitors asked that the Department delete any and all references to the third party whose personal information so that “… only the information relating to the allegation that our client committed family violence itself be released.”[5]

[5] T documents at 73

On internal review, the Department identified further folios as falling within the terms of Mr Callejo’s request. It maintained its original claims for exemption and claimed that a number of the folios it had since discovered were also exempt under s 41(1).[6]
[6] See affidavit of Mark O’Rourke, Exhibit 1

DOCUMENTS IN ISSUE

Doc No.	Folio No.	Date	Author	Description	Exemption	Claim
1.	68	Undated.	N/A	Photocopy of credit cards.	s 41(1)	Partially exempt. Deletion of copies of credit cards belonging to persons other than Mr Callejo.
2.	158-161	8/2/07	Exempt. s 41(1)	Statutory declaration.	s 45 s 41(1) s37(1)(c)	Whole document.
3.	171	13/3/07	Exempt. s 41(1)	Signature page of Form 956 – appointment of migration agent etc.	41(1)	Whole document.
4.	176-178	22/3/07	Exempt. s 41(1)	Statutory declaration.	s 45 s 41(1)	Whole document.
5.	179	Undated.	N/A	Computer database printout (extract).	s 41(1)	Partially exempt. Deletion of two lines at the top of the page, and information under the heading “Health Schedule”.
6.	181-190	28/3/07	Exempt. s 41(1)	Statutory declaration.	s 45 s 41(1) s 37(1)(c)	Whole document.
7.	191-202	2/4/07	Exempt. s 41(1)	Statutory declaration.	s 45 s 41(1) s 37(1)(c)	Whole document.
8.	203-221	Exempt. s 41(1)	Statutory declaration.	s 45 s 41(1) s 37(1)(c)	Whole document.
9.	225-240	Exempt. s 41(1)	Statutory declaration. Folios 225-236 are a copy of Document 7 (folios 191-202)	s 45 s 41(1) s 37(1)(c)	Whole document.
10.	241-243 244 245-263	Exempt. s 41(1)	Statutory declaration. Folios 241-243 and 245-259 are a copy of part of Document 8 (folios 203-205 and 207-221).	s 45 s 41(1) s 37(1)(c)	Whole document.
11.	264-276	28/3/07	Exempt. s 41(1)	Statutory declaration. Folios 264-273 are a copy of Document 6 (folios 181-190).	s 45 s 41(1) s 37(1)(c)	Whole document.
12.	285	Undated	N/A	Computer database printout (extract).	s 41(1)	Partially exempt. Deletion of the top line of page.
13.	287	Undated	N/A	Computer database printout (extract).	s 41(1)	Partially exempt. Deletion of balance of page below entry for 17/05/2007.
14.	288-293	20/8/07	Tania Raymond DIAC (Position No. 10577)	Decision record in relation to application by Maria Contessa Calllejo for subclass 100 visa.	s 45 s 41(1) s 37(1)(c)	Whole document.
15.	309-314	22/8/07	Maria Contessa Callejo	DIAC Form 80 (Personal particulars for character assessment).	s 41(1)	Whole document.
16.	332-335	5/10/07	Tania Raymond DIAC (Position No. 10577)	Decision record regarding grant of subclass 100 visa to Maria Contessa Callejo and Audrey Frances Paz (folio 335) and copy of letter to Maria Contessa Callejo (folios 332-334).	s 41(1) s 37(1)(c)	Whole document.

BACKGROUND

There was no disagreement between the parties as to the factual matters leading to Mr Callejo’s requesting access to the documents from the Department and I will set them out in this section of my reasons. I have interspersed those factual matters with references to the provisions of the Migration Regulations 1994 (Migration Regulations). Those provisions may be relevant to the situation in which Mr Callejo and Mrs Callejo found themselves.

The marriage, the sponsorship, the separation and the withdrawal of sponsorship

Mr Callejo is an Australian citizen. In 2004, he married Ms Contessa V Paz, who was a citizen of the Philippines. He sponsored his wife for a subclass 309 Spouse (Provisional) visa (309 visa). That visa is a temporary visa included in Schedule 2 of the Migration Regulations. It is a sub-class of a Partner (Provisional) (Class UF) visa.[7]
[7] Migration Regulations, Schedule 1, Part 2, cl 1220A(4)

Ms Paz, later Mrs Callejo, lodged her application for a 309 visa in the Department’s office in Manila on 19 July 2005. She met the criterion specified in
cl 309.211(2)(a) of Schedule 2 of the Migration Regulations for that visa in that she was the spouse of an Australian citizen. In addition, she met the criterion specified in cl 309.213(1)(a) in that she was sponsored by her husband. As Ms Paz’s sponsor in relation to her application for a temporary visa, Mr Callejo undertook:

“… to accept responsibility for:
(i)all financial obligations to the Commonwealth incurred by the applicant arising out of the applicant’s stay in Australia; and
(ii)compliance by the applicant with all relevant legislation and awards in relation to any employment entered into by the applicant in Australia; and
(iii)unless the Minister otherwise decides, compliance by the applicant with the conditions under which the applicant was allowed to enter Australia.”[8]
[8] Migration Regulations, r 1.20(2)(b)

If, when she was in Manila, Ms Paz applied for a Spouse (Migrant) (Class BC) concurrently with her application for a 309 visa, which is a sub-class of a Partner (Provisional) (Class UF), Mr Callejo’s obligations as a sponsor would have been expressed a little differently:
“if the application is a concurrent application for a Partner (Provisional) (Class UF) and a Partner (Migrant) (Class BC) visa … the sponsor undertakes to assist the applicant, to the extent necessary, financially and in relation to accommodation:
(i)…
(ii)if the applicant is outside Australia – during the period of 2 years immediately following the applicant’s first entry into Australia after the grant of the provisional or temporary visa …”.[9]
[9] Migration Regulations, r 1.20(2)(c)

Mrs Callejo was granted the visa on 27 September 2005 and she and her daughter arrived in Australia in October 2005. A 309 visa is a temporary visa which permitted Mrs Callejo to travel to, enter and remain in Australia until the end of the day on which she was notified that her application for a Spouse (Migrant) (Class BC) visa or a Partner (Migrant) (Class BC) visa had been decided or she withdrew her application.[10]
[10] Migration Regulations, Schedule 2, cl 309.5

In a letter dated 27 January 2007, Mr Callejo told the Department that his relationship with his wife had ended and that he wanted to withdraw his sponsorship of her spouse visa.

An application for a 100 visa when relationship between sponsoring spouse and applicant continues two years after application

A Partner (Migrant) (Class BC) visa is a permanent visa[11] and comprises two sub-classes.[12] One of those sub-classes is sub-class 100 (Spouse)
(100 visa). As the holder of a 309 visa, Mrs Callejo would presumably have met the criterion specified in cl 100.221(2)(a)(i) of Schedule 2 of the Migration Regulations. The criterion specified in cl 100.221(2)(b) required her to be the spouse or de facto partner of her sponsoring parner. The “sponsoring partner” was, in her case,
Mr Callejo as he was an Australian citizen who was specified as her spouse in the application that resulted in the grant of her 309 visa.[13] She would not have met the criterion specified in cl 100.221(2)(c) until at least two years had passed from the time she applied for the 100 visa.

An application for a 100 visa when relationship between sponsoring spouse and applicant not continuing two years after application

[11] Migration Regulations, Schedule 1, Part 1, cl 1129

[12] Migration Regulations, Schedule 1, Part 1, cl 1129(4)

[13] Migration Regulations, Schedule 2, cl 100.111(a)

A.Claim that applicant or another named in criterion has suffered family violence

Even if Mrs Callejo did not meet the criteria in cl 100.221(2), she could still meet the criteria specified in cl 100.221 if she met those in cl 100.221(4). The requirements of cll 100.221(2) and (4) are alternate, and not cumulative, requirements as are those in cll 100.221(2A), (3) and (4A).[14] In so far as it may be
[14] Migration Regulations, Schedule 2, cl 100.221(1)

relevant in this case, cl 100.221(4) provides:

“The applicant meets the requirements of this subclause if:
(a)the applicant first entered Australia as the holder of a Subclass 309 (Spouse (Provisional)) visa or a Subclass 309 (Partner (Provisional)) visa and either:
(i)           continues to be the holder of that visa; …
(ii)          …; and
(b)the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased; and
(c)after the applicant first entered Australia as the holder of the visa mentioned in paragraph (a) — either or both of the following circumstances applies:
(i)           either or both of the following:
(A)the applicant;
(B)a member of the family unit of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner;

(ii) the applicant:
(A) has custody or joint custody of, or access to; or
(B)has a residence order or contact order made under the Family Law Act 1975 relating to;
at least 1 child in respect of whom the sponsoring partner:
(C)has been granted joint custody or access by a court; or
(D)has a residence order or contact order made under the Family Law Act 1975; or
(E)has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.”

B.Circumstances in which family violence suffered

If Mrs Callejo relied on cl 100.221(4)(c), regard would have to be had to Division 1.5 of Part 1 of the Migration Regulations. That Division sets out special provisions that relate to family violence when an applicant for a visa wants to satisfy a criterion of the type prescribed in cl 100.221(4)(c) that he or she or another has

suffered family violence. Regulation 1.22(1) provides:

“A reference in these Regulations to a person having suffered family violence is a reference to a person being taken, under regulation 1.23, to have suffered family violence.”

Regulation 1.23 “… explains when … a person (the alleged victim) is taken to have suffered family violence”.[15] It does so by reference to circumstances specified in the remaining sub-regulations. Most are not relevant to the circumstances of this case. There is no suggestion, for example, that Mr Callejo has been convicted of an offence of family violence against Mrs Callejo or that a court order has been made against him. No evidence has been given that Mr Callejo and Mrs Callejo have made a joint undertaking in a court proceeding in which an allegation of family violence was before the court that Mr Callejo committed family violence against
Mrs Callejo.

[15] Migration Regulations, r 1.23(1)(a)

The only provisions of r 1.23 that could be relevant begin with
r 1.23(9) which provides:

“For these regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:
(a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and
(b)the alleged victim is:
(i)a spouse of de facto partner of the alleged perpetrator; or
(ii)a dependent child of:
(A)the alleged perpetrator; or
(B)the spouse or de facto partner of the alleged perpetrator; or
(C)both the alleged perpetrator and his or her spouse or de facto partner; or
(iii)a member of the family unit of a spouse or de facto partner of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse or de facto partner); and
(c)the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:
(i)the alleged victim has suffered relevant family violence; and
(ii)the alleged perpetrator committed that relevant family violence.”

The expression “relevant family violence” means:
“… conduct, whether actual or threatened, towards:
(a)the alleged victim; or
(b)a member of the family unit of the alleged victim; or
(c)a member of the family unit of the alleged perpetrator; or
(d)the property of the alleged victim; or
(e)the property of a member of the family unit of the alleged victim; or
(f)the property of a member of the family unit of the alleged perpetrator;
that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.”[16]

The word “violence includes a threat of violence.”[17]

[16] Migration Regulations, r 1.21(1)

[17] Migration Regulations, r 1.21(1)

C.Evidence which may be presented that alleged victim suffered family violence

Regulation 1.24 deals with the evidence referred to in r 1.23(9)(c). That evidence is:
“(a) a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims) together with:
(i)a statutory declaration under regulation 1.26 (which deals with statutory declarations by competent persons); and
(ii)a copy of a record of an assault, allegedly committed by the alleged perpetrator, on:
(A)the alleged victim; or
(B)a member of the family unit of the alleged victim; or
(C)a member of the family unit of the alleged perpetrator;
that is a record kept by a police service of a State or Territory (other than a statement by the alleged victim or by the person allegedly assaulted); or
(b)a statutory declaration under regulation 1.25, together with 2 statutory declarations under regulation 1.26.”

Where statutory declarations made by competent persons are submitted, those competent persons must have different qualifications.[18]
A “competent person” means in relation to family violence committed against an adult:
[18] Migration Regulations, r 1.24(2)

“(i) a person registered as a medical practitioner under a law of a State or Territory providing for the registration of medical practitioners; or
(ii)a person registered as psychologist under a law of a State or Territory providing for the registration of psychologists; or
(iii)a person who:
(A)is a registered nurse within the meaning of section 3 of the Health Insurance Act 1973; and
(B)is performing the duties of a registered nurse; or
(iv)a person who:
(A)is a member of the Australian Association of Social Workers or is recognised by that Association as a person who is eligible to be a member of that Association; and
(B)is performing the duties of a social worker; or
(v)a person who is a family consultant under the Family Law Act 1975; or
(vi)a person holding a position of a kind described in subregulation (2); …”[19]
[19] Migration Regulations, r 1.21(1)(a)

The persons referred to in paragraph (a)(vi) of the definition of “competent person” are:
“(a) manager or coordinator of:
(i)a women’s refuge; or
(ii)a crisis and counselling service that specialises in family violence; or
(b)a position with:
(i)decision-making responsibility for:
(A)a women’s refuge; or
(B)a crisis and counselling service that specialises in family violence;
that has a collective decision-making structure; and
(ii)responsibility for matters concerning family violence within the operations of that refuge or crisis and counselling service.”[20]
[20] Migration Regulations, r 1.21(2)

Where a competent person makes a statutory declaration for the purpose of these provisions, it must comply with r 1.26. As well as stating the basis on which the person claims to be a competent person, the statutory declaration:
“(a)-(b)…
(c)must state that, in the competent person’s opinion, relevant family violence (within the meaning of subregulation 1.21(1)) has been suffered by a person; and
(d)must name the person who, in the opinion of the competent person, has suffered that relevant family violence; and
(e)must name the person who, in the opinion of the competent person, committed that relevant family violence
(f)if the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim:
(i)must name the person whom the conduct of the alleged perpetrator was towards; and
(ii)must identify the relationship between the alleged victim and the person whom the conduct was towards; and
(g)must set out the evidence on which the competent person’s opinion is based.”[21]

D.The Minister’s obligations when applicant for visa relies on non-judicially determined claim of family violence
[21] Migration Regulations, r 1.26

When an application for a visa includes a non-judicially determined claim of family violence, the Minister must consider whether the alleged victim has suffered that violence.[22] If satisfied that the alleged victim has suffered the family violence, the Minister must consider the application for a visa on that basis.[23] Provided that Minister is satisfied that relevant family violence, or part of it, occurred while the married or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged victim, the alleged victim is taken to have suffered it.[24]
[22] Migration Regulations, r 1.23(10)(a)
[23] Migration Regulations, r 1.23(10)(b)
[24] Migration Regulations, rr 1.23(11) and (13)

If the Minister is not satisfied that the alleged victim has suffered the

relevant family violence, that is not an end of the matter. The Minister:

“… must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence.”[25]

An “independent expert” is:

“… a person who:
(a)is suitably qualified to make independent assessments of non-judicially determined claims of family violence; and
(b)is employed by, or contracted to provide services to, an organisation that is specified, in a Gazette Notice for this definition, for the purpose of making independent assessments of non-judicially determined claims of family violence.”[26]

[25] Migration Regulations, r 1.23(10)(c)(i)

[26] Migration Regulations, r 1.21(1)

Having received the report from the independent expert, the Minister cannot query it for r 1.23(10)(c)(ii) provides that:
“the Minister must take an independent expert’s opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.’[27]

Provided that the Minister is satisfied that relevant family violence, or part of it, occurred while the married or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged victim, the alleged victim is taken to have suffered it.[28]

E.Statutory declarations and opinions of independent expert not generally admissible in evidence
[27] Migration Regulations, r 1.23(10)(c)(ii)
[28] Migration Regulations, rr 1.23(13) and (14)

Regulation 1.27 provides that statutory declarations made under or in accordance with rr 1.25 and 1.26 and an opinion of an independent expert referred to in r 1.23(10)(c)(i) are not admissible before a court or tribunal except in relation to:
“(a) an application for judicial review or merits review of a decision to refuse to grant a visa the application for which included the non-judicially determined claim of family violence to which the statutory declaration or opinion relates; or
(b)a prosecution of the maker of the statutory declaration under section 11 of the Statutory Declarations Act 1959.”

A decision that a person has suffered or committed family violence made for a very narrow and limited purpose and not conclusive of the issue for any other purpose

If it should prove to be the case that Mrs Callejo has been granted a visa on the basis that she met the criteria in that that she made a claim of non-judicially determined family violence and it has been accepted, I want to spend a moment considering the consequences of such a claim and of its being accepted.
I will do this because Mr Callejo fears that this is what has happened and is deeply unhappy as a result. He is vehement in his denial that he has ever engaged in any form of violence towards Mrs Callejo. He has made his request under the FOI Act in order to clear his name. If Mrs Callejo was entitled to a visa, that was as it should be but he did not want his name impugned in order for her to be given it. Mr Callejo said that he had worked hard for his good name and it should not be used like that. His general perception of family violence was that a person hurts or beats another or uses words to threaten, mock or tease another. He knew that it did not require physical violence or verbal threats.

It is clear from the statutory scheme that I have set out above that it is directed to deciding whether an applicant has satisfied a prescribed criterion that he or she has suffered family violence. It should be noted that the expression “family violence” was introduced in 2007 to replace the expression “domestic violence” in the Migration Regulations.[29] Before those amendments, the expression “relevant domestic violence” was defined in r 1.23(2)(b)[30] to mean:
“a reference to relevant domestic violence is a reference to violence against the alleged victim or his or her property that causes the alleged victim, or a member of the alleged victim’s family, to fear for, or to be apprehensive about, the alleged victim’s personal well-being or safety.”
[29] Migration Amendment Regulations 2007 (No. 13) (2007 No. 315), r 3(1) and Schedule 1
[30] Migration Amendment Regulations 2007 (No. 13), r 1.21(1)

It was in this form that the definition was considered by the Full Court of the Federal Court in SOK v Minister for Immigration and Multicultural and Indigenous Affairs.[31] An appeal against the judgment was later allowed by the High Court but that Court made no reference to its reference to the scope of the meaning of “domestic violence”. Branson J, with whom Marshall J agreed, concluded that domestic violence is not limited to physical violence. Her Honour found support for her view:
“… by the fact that the violence to which reg 1.23(2)(b) refers is violence that causes, relevantly, the alleged victim to fear for, or be apprehensive about, his or her ‘personal well-being or safety’. While the intended content of the word ‘safety’ in the context may be open to debate, I do not think that it is open to be seriously contested that an individual’s ‘personal well-being’ is generally understood to encompass his or her psychological health. If the violence referred to in reg 1.23(2)(b) were intended to be limited to physical violence, it may be doubted that the reference to ‘personal well-being’ was necessary; the reference to ‘safety’ would appear to be all that was required.
Further, I agree withHelyJ that the inclusion of registered psychologists (and I would add social workers and those involved in positions of responsibility in women’s shelters and crisis and counselling services that specialise in domestic violence) within the class of persons who may provide statutory declarations as evidence that the alleged victim has suffered relevant domestic violence points towards the word ‘violence’ being used in regulation 1.23(2)(b) in a sense that extends beyond physical violence. If the word ‘violence’ were intended to include only physical violence it might have been expected, in my view, that at least one of the two ‘competent persons’ whose supporting evidence was required would be a medical practitioner or nurse. I further agree with Marshall J that it is significant that a person may be taken to have suffered domestic violence under regulation 1.23(1)(c) of the Regulations notwithstanding that he or she did not suffer physical violence (see also the observations ofHelyJ at [69]-[73]).”[32]
[31] [2005] FCAFC 56; (2005) 144 FCR 170, Branson, Marshall and Hely JJ
[32] [2005] FCAFC 56; (2005) 144 FCR 170 at [24]-[25]; 176

Despite the subsequent amendments to the Migration Regulations, her Honour’s reasoning seems to me to be equally applicable to the meaning of “relevant family violence” now appearing in r 1.21(1). The definition of “competent person” remains the same and there is no requirement that at least one of the competent persons giving supporting evidence be a registered nurse or medical practitioner. They are two of the persons who are competent persons but there are others whose role would not require or permit them to undertake a physical examination of the sort that might reveal evidence of physical violence. The reference to the alleged victim’s “personal well-being or safety” in r 1.23(2)(b) has been replaced with a reference to the alleged victim’s “own well-being or safety’ now that the definition of “relevant family violence” appears in r 1.21. Again, I do not think that this makes any difference in the interpretation. The word “own” means “.. belonging to or for oneself …”[33] and the word “personal” in this context means “… relating to one’s private concerns …”.[34] In either case, the focus is upon the alleged victim’s well-being or safety alone. All of these matters lead me to conclude, just as the majority concluded in SOK v Minister for Immigration and Multicultural and Indigenous Affairs, that relevant family violence under Division 1.5 of the Migration Regulations may extend beyond physical violence to non-physical violence or the threat of it.
[33] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[34] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

There is one significant difference between the definition of “relevant family violence” that now appears in r 1.21(1) and the meaning given to “relevant domestic violence” that was formerly given in r 1.23(2). The difference is that, in order to be “relevant family violence”, the conduct, whether actual or threatened, must cause the alleged victim to “to reasonably fear for, or to be reasonably apprehensive about” (emphasis added) his or her own well-being or safety. The word “reasonably” did not appear when the Full Court considered the meaning of “relevant domestic violence”. Where once relevant domestic violence was determined by reference to what had physically happened to the particular alleged victim or what the alleged victim had feared or been apprehensive about, relevant family violence is determined by what reasonably causes that response. That introduces an element of objectivity. The alleged victim will have to fear or be apprehensive but this will not be enough to amount to relevant family violence unless the fear or apprehension is also reasonable.

The process established under Division 1.5 is a process established for a particular purpose and for no other. It is a process that enables the Minister and his delegates to decide whether or not a visa applicant has met a criterion for a visa based on an allegation that he or she has suffered relevant family violence. It is no more than that and does not make a decision about that issue for any other purpose.

The reason why this course was taken is not stated on the face of the regulations or in the Explanatory Statements accompanying the introduction of Division 1.5 in the first place[35] or when the references to domestic violence were changed to family violence.[36] Having regard to the provisions of Division 1.5 and the visas in which the applicant’s having suffered family violence is specified as a criterion, it seems that the criterion and the process are intended to form a structure protective of those who come to Australia as the spouse or de-facto partner of an Australian citizen on temporary visas. It is a process that demonstrates a clear policy decision that protection of the spouse or of the de-facto partner is of such importance that processes that would be followed and evidence that would be required in a court or in a tribunal such as this one in deciding whether or not the alleged victim has suffered relevant family violence can be replaced with evidence and processes meeting less exacting standards. It is not a process that is intended to determine whether the alleged perpetrator did commit the relevant family violence. That would be left to a court. The process is not one in which it is contemplated that the alleged perpetrator can or may play a part. I will return to this below but, for the moment, it cannot be emphasised too much that the enquiry regarding alleged family violence is conducted within very narrow confines. Its very narrow confines explain why the statutory declarations and opinion of an independent expert are not admissible in evidence in a court or tribunal.
[35] Migration Amendment Regulations 2007 (No. 13)
[36] Migration Regulations (Amendment) 1995

The process prescribed in Division 1.5 of Part 1 has very narrow confines because, for example, it does not require a full consideration of all available evidence. All that the alleged victim must present is evidence in the form specified in the Migration Regulations. The alleged victim is not required to present all the evidence that might be available on the issue. The Minister is not required to undertake an enquiry or to ask for more investigations to be made and information gathered. If not satisfied that the alleged victim has suffered family violence, the Minister must seek the opinion of an independent expert but that is the beginning and end of his or her obligations and power to obtain further information or evidence. Once obtained in accordance with Division 1.5, the opinion of the independent expert disposes of the issue whether the alleged victim satisfies the criterion that he or she or another person mentioned in the criterion has suffered family violence. The Minister has no opportunity to weigh the independent expert’s opinion against the other evidence. Unlike the situation that would generally prevail in a court or in this Tribunal, no provision is made for the alleged perpetrator of the family violence to be given an opportunity to respond to the evidence that is presented by the alleged victim to the Minister.[37] That would be so unless it had already decided the issue in the alleged victim’s favour.[38]
[37]
[38] Migration Act, s 360(2)

Unlike the usual position in a court dealing with a civil matter or in this Tribunal, the alleged victim is not required to establish the claim of relevant family violence on the balance of probabilities. He or she need only produce the statutory declarations and it is then a matter for the Minister to be “satisfied” that the alleged victim has suffered relevant family violence. This is not the appropriate forum in which to attempt to determine when the Minister will be “satisfied” that the alleged victim has suffered relevant family violence. I will, however, spend a short time in showing the ways in which the word has been interpreted in different contexts. That is necessary in order to illustrate that, arguably, the word does not require the Minister to consider satisfaction according to a standard of proof used in the courts. Arguably, it is a subjective test of satisfaction rather than an objective test requiring that the Minister be satisfied on the balance of probabilities.

The word “satisfied” is a word that suggests that the person so satisfied is “convinced or persuaded, eg in a debate or discussion.”[39] On its own, it does not indicate whether the person must be satisfied on grounds that are objectively supportable or whether that state can be achieved on grounds that may be subjective to the person. This is not a question that was touched upon by the High Court when it considered the provisions of Division 1.5 of Part 1 of the Migration Regulations in SOK v Minister for Immigration and Citizenship.[40]
[39] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[40] [2008] HCA 50; (2008) 249 ALR 651; (2008) 104 ALD 464; (2008) 83 ALJR 25 Gummow, Hayne, Heydon, Crennan and Kiefel JJ

The word “satisfied” has been used in other contexts. In Pacanowski v Australian Securities Commission,[41] for example, Moore J considered s 574(3) of the Corporations Law. Mr Pacanowski had applied for the reinstatement of the registration of a company following the cancellation of that registration. If satisfied of certain issues the Court could order reinstatement of the registration if:
“… satisfied that the company was, at the time of the cancellation, carrying on business or in operation or otherwise satisfied that it is just that the registration of the company be reinstated …”.

Moore J took the view that the word “satisfied” prescribed a subjective test when he said:

“… The language of s 574, in so far as it speaks of the Court being ‘satisfied that it is just’ that registration be reinstated, is imprecise and invests the Court with a power requiring the exercise of a broad value judgment. I am satisfied that Pacanowski has, during the trading activities of Galite, guaranteed loans to the Company to his detriment and in those circumstances has a legitimate interest in availing himself of benefits that might flow from the Company being reinstated and thus being able to resume trading. Accordingly s 574(3) is, in my opinion, satisfied. I order the reinstatement of Galite …”.[42]

[41] [1995] FCA 1259; (1995) 57 FCR 173; 13 ACLC 1127;17 ACSR 203

[42] [1995] FCA 1259; (1995) 57 FCR 173; at [9]; 175

The word “satisfied” was seen as importing a subjective standard in a very different context in Warringah Council v Moy.[43] Mr Moy was an accredited certifier under the Environmental Planning and Assessment Act 2000 (NSW) (EPA Act). Section 109F(1)(a) of the EPA Act and r 145 of the Environmental Planning and Assessment Regulations 2000 (NSW) (EPA Regulation) provided that a certifying authority, of whom Mr Moy was one, must not issue a construction certificate for building work unless “satisfied” of the matters they proceeded to set out. Mr Moy was charged under ss 109ZH and 125(1) of the EPA Act in respect of a construction certificate he had issued. The prosecutor alleged that Mr Moy was not “satisfied” of those matters of which he should have been satisfied when he issued the construction certificate. It called evidence from two expert witnesses to the effect that no reasonable certifier could have been satisfied of those matters. Mr Moy gave evidence that he was satisfied of those matters.
[43] [2005] NSWLEC 416; (2005) 142 LGERA 343, Bignold J

The charges under ss 109ZH and 125(1) of the EPA Act were criminal charges. Therefore, the elements of the offences had to be established beyond reasonable doubt. Bignold J held that satisfaction under s 109F(1)(a) of the EPA Act and r 145 of the EPA Regulations was according to a subjective, not an objective standard. The evidence did not prove beyond reasonable doubt that the defendant in issuing the construction certificate lacked the requisite satisfaction.

In the course of his judgment, Bignold J rejected an argument by the prosecutor that satisfaction had to be determined by reference to an objective standard if the statutory limitations or restraints on the power of the certifying authority were to be maintained. His Honour rejected that submission:
“… principally because it wholly fails to appreciate the rationale and regime of the system of private certification by accredited certifiers created by Parts 4A, 4B and 4C of the EP&A Act and Part 8 of the Regulation (see Over Our Dead Body Society Inc v Byron Bay Community Association Inc (2001) 116 LGERA 158 at 166-168). That regime includes the proper accreditation or private certifiers and the extensive supervision of private certifiers including the machinery for disciplinary action to be taken in respect of professional misconduct. Secondly the submission ignores the fact that the issue of construction certificates is amenable to the process of judicial review (which includes Wednesbury unreasonableness) - see Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207.”[44]
[44] [2005] NSWLEC 416; (2005) 142 LGERA 343 at [45]; 353

Bignold J concluded instead that:
“In the present case in my opinion the proper interpretation of the relevant statutory phrases appearing in s 109F(1)(a) and cl 145(1)(a) of the Regulation ‘unless the certifying authority is satisfied …’ is that the requisite ‘satisfaction’ is required to be according to the subjective standard, and not according to an objective standard, recognising that subjective standard may imply the obligation on the part of the certifying authority to honestly attain the requisite satisfaction.”[45]
[45] [2005] NSWLEC 416; (2005) 142 LGERA 343 at [44]; 353

At the same time, he recognised that:

“ In different contexts a requirement that a stipulated person must be satisfied of a stipulated matter may give rise to the question whether the requisite satisfaction is intended to be based upon the subjective or objective standard. In a context involving stipulations in a contract for sale of land for the purchaser to be satisfied of stipulated matters (eg obtaining finance on satisfactory terms) the High Court in Meehan v Jones (1982) 149 CLR 571 held that the stipulations required the purchaser personally to be satisfied (rather than requiring the satisfaction of a hypothetical reasonable man).
Gibbs CJ at 581 stated:
Such a condition is generally entirely for the protection of the purchaser and it is the satisfaction of the purchaser, not that of some hypothetical reasonable man, that will satisfy the condition. No doubt it may be implied that the purchaser will act honestly in deciding whether or not he is satisfied.

Wilson J at 597 favoured a similar view to that of the Chief Justice, but like Mason J (at 591) refrained from expressing a concluded view as to whether there should be implied an obligation on the part of the purchaser to act ‘reasonably’ as well as ‘honestly’ in reaching a decision as to whether the terms and conditions of the obtainable finance were ‘satisfactory’.
Murphy J at 597 preferred a construction of the stipulation that provided the purchaser with an ‘unlimited discretion’ as to whether the terms of the finance were ‘satisfactory’ to him.
In a different context (Buck v Bavone (1976) 135 CLR 110) involving a defence under s 92 of the Federal Constitution based upon a provision of the South Australian Potato Marketing Act 1948 requiring registration of the potato grower whose obtaining registration depended upon the ‘satisfaction’ of a statutory Board that in the registration period the applicant would be growing potatoes for sale Barwick CJ, in dissent, at 116 held that the ‘satisfaction of the Board is subjective’. In the course of his judgment forming part of the majority Gibbs J said at 118:
It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously.”[46]

[46] [2005] NSWLEC 416; (2005) 142 LGERA 343 at [39]-[43]; 352-353

In Commonwealth Bank of Australia v Parform Pty Ltd,[47] Sundberg J considered the expression “reasonable satisfaction” and, in doing so, drew a distinction between it and the word “satisfaction”. The context of his consideration was a demand issued by the Commonwealth Bank of Australia (CBA) under s 459E(2) of the Corporations Law for payment of a debt of $38,762.80. It served it on Parform Pty. Ltd (Parform). The demand required Parform to pay the CBA the amount of the debt or to secure or compound for that amount to the Bank’s reasonable satisfaction and to do so within 21 days of service of the demand. The CBA claimed that Parform did not comply with the demand, and sought an order that Parform be wound up under s 459P of the Corporations Law. Sundberg J said:
“ To ‘compound’ for a debt is to accept an arrangement for payment of the amount of the debt or of a different amount. I was referred to no authority on the phrase ‘to the creditor’s reasonable satisfaction’, and my own researches have disclosed none. But I do not think the phrase is intended to enable the creditor to be the sole judge of his satisfaction. The words ‘to the creditor’s reasonable satisfaction’ seem to me to posit an objective test. In other words, where the debtor puts up a proposal which the creditor rejects, it is for the court to decide whether in rejecting it the creditor was acting reasonably in all the circumstances. If the test were wholly subjective, the legislature would have employed the phrase ‘to the creditor’s satisfaction’. In my view the Bank acted reasonably in rejecting the offer. There was nothing in the letter or in the circumstances surrounding the offer that gave the Bank any assurance that Parform would be able to pay the balance within the 30 day period. Accordingly, Parform did not within the 21 day period compound for the amount of the debt to the Bank’s reasonable satisfaction.”[48]
[47] [1995] FCA 1445
[48] [1995] FCA 1445; (1995) 13 ACLC 1309 at [4]

The introduction of an objective test through the qualification of “satisfaction” by the word “reasonable” is consistent with the conclusion reached in the context of s 120(4) of the Veterans’ Entitlements Act 1986 (VE Act). That section speaks in terms of “reasonable satisfaction”. Beaumont J concluded in Repatriation Commission v Smith[49] that s 120(4) had introduced a civil standard of proof to the Tribunal in relation to those matters to which it applied under the VE Act. That is, findings of fact had to be made on the balance of probabilities.
[49] (1987) 15 FCR 327; 74 ALR 537

Having regard to the protective nature of the provisions in Division 1.5, the absence of the qualifying word “reasonable”, the absence of any opportunity to make further enquiries and undertake investigations and the absence of any enquiries made of the alleged perpetrator, it seems to me that the word “satisfied” establishes only a subjective test. It does not go any further and does not import any notion of reasonableness. All that is required is that the Minister act honestly in determining whether he or she is satisfied that the alleged victim has suffered relevant family violence.

FREEDOM OF INFORMATION ACT 1982

General outline

Section 15(1) of the FOI Act provides that “… a person who wishes to obtain access to a document of an agency or an official document of a Minister may request access to the document.” That wording mirrors the right that a person has to
obtain access to documents. The right is found in s 11:

“(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a)a document of an agency, other than an exempt document; or
(b)an official document of a Minister, other than an exempt document.
(2)Subject to this Act, a person’s right of access is not affected by:
(a)any reasons the person gives for seeking access; or
(b)the agency’s or Minister’s belief as to what are his or her reasons for seeking access.”

The expression “document of an agency” means “… a document in the possession of an agency … whether created in the agency or received in the agency.”[50] An “official document of a Minister” is the subject of a more expansive definition in s 4(1) but it is not relevant to refer to it as Mr Callejo has not sought access to such a document.
[50] FOI Act, s 4(1)

An “exempt document” is:
“(a) a document which, by virtue of a provision of Part IV, is an exempt document;
(b)a document in respect of which, by virtue of section 7, an agency is exempt from the operation of this Act; or
(c)an official document of a Minister that contains some matter that does not relate to the affairs of an agency or of a Department of State.”[51]
[51] FOI Act, s 4(1)

Only those documents referred to in (a) of the definition are relevant in this case as Mr Callejo made his request for access of the Department and not of the Minister and the Department is not exempt from the operation of the FOI Act in relation to the documents he has requested.

Part IV is concerned with exempt documents. All but one of its 19 provisions specifies documents that are exempt documents. They do so in one of three ways. The first is by reference to a description of a class of documents e.g. Cabinet and Executive Council documents[52] and documents to which secrecy provisions apply.[53] The second is by reference to the effect that disclosure would, or could reasonably be expected to have e.g. documents affecting national security, defence or international relations[54] and those affecting the national economy.[55] The third is by reference to factors from both the first and second e.g. internal working documents[56] and business affairs.[57] The exemptions on which the Department relies fall into the second[58] and third categories.[59]
[52] FOI Act, ss 34 and 35
[53] FOI Act, s 38
[54] FOI Act, s 33
[55] FOI Act, s 44
[56] FOI Act, s 36
[57] FOI Act, s 43
[58] FOI Act, s 37
[59] FOI Act, ss 41 and 45

In interpreting the provisions in Part IV, it must be remembered that:
“A provision of this Part by virtue of which documents referred to in the provision are exempt documents:
(a)shall not be construed as limited in its scope or operation in any way by any provision of this Part by virtue of which documents are exempt documents; and
(b)shall not be construed as not applying to a particular document by reason that another provision of this Part of a kind mentioned in paragraph (a) also applies to that document.”[60]
[60] FOI Act, s 32

In the case of most decisions reviewed by the Tribunal, neither party carries a burden of proof. Decisions that are made under the FOI Act in relation to a request for access to a document are different.[61] Subject only to three exceptions,
s 61(1) provides:

“… in proceedings under this Part [VI], the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.”

The three exceptions relate to proceedings under ss 58F, 59 and 59A. Those sections provide for three situations in which an agency or a Minster has decided not to claim exemption under the FOI Act. They enable a State (s 58F), a person whose business affairs are disclosed in the relevant document (s 59) and a person whose personal information is to be disclosed (s 59A) to apply for review of the decision to grant access. Section 61(2) provides that those persons have te onus of establishing that a decision refusing access is justified or that the Tribunal should give a decision adverse to the person requesting access.

[61] For the reasons I gave in Re Bashari and Ors and Minister for Immigration and Multicultural Affairs [2006] AATA 839, an application for amendment etc under Part V is not a “request” under s 15(1) as that word is defined in s 4(1). As s 61 provides for an onus of proof only in relation to a decision given in respect of a “request”, there is no onus in relation to a decision in respect of an application under Part V.

Once the Tribunal has decided that a document is an exempt document, it does not have power to decide that access to the document, so far as it contains exempt matter, is to be granted. Agencies and Ministers have that discretion but
s 58(2) expressly provides that the Tribunal does not.

Some documents contain matter that both causes the document to be an exempt document (exempt matter[62]) and matter which is not. It does not necessarily follow that an agency or a Minister can refuse to give access to the whole of the document. Both must look to s 22 and decide whether it is possible to make a copy of the document with deletions so that the copy would not be an exempt document.[63] As well as making that decision, the agency or Minister must decide whether:
“it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy”.[64]
[62] FOI Act, s 4(1)
[63] FOI Act, s 22(1)(b)(i)
[64] FOI Act, s 22(1)(c)

If both those decisions are made in the affirmative, s 22(1) requires the agency or the Minister to make, and grant access to, such a copy unless it is apparent that the applicant would not wish to have access to such a copy. The applicant’s wishes may be apparent in the request for access or may be gleaned as a result of consultation by the agency or Minister.

When access is given to a copy from which exempt matter has been deleted (redacted copy), the agency or Minister must tell the applicant of that fact and the provision of the FOI Act under which the exempt matter is exempt.[65]
[65] FOI Act, s 22(2)(a)

Finally, I should note that the Tribunal does not have the breadth of power given enjoyed by an agency or Minister to give access to documents even though they could claim that they are exempt under the FOI Act. Part IV does not require an exemption to be claimed; it only permits it to be claimed. Subject to any legislative or other restrictions, an agency or Minister may choose to give an applicant access to a document. The Tribunal has no such choice, for s 58(2) of the FOI Act provides that:
“where … it is established that a document is an exempt document, the Tribunal does not have power to decide that access to a document, so far as it contains exempt matter, is to be granted.”

FOI Act: s 41 and unreasonable disclosure of personal information

A.Outline of s 41 and related provisions in ss 27A and 59A

The first is s 41(1), which provides:
“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).”

The expression “personal information” is defined in s 4(1):

“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.”

Section 41(2) qualifies s 41(1) by providing:
“Subject to subsection (3), the provisions of subsection (1) do not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person.”

Sub-section 41(3) sets out a process to be followed when the request for access relates to a document containing information which concerns the applicant and which was provided by a qualified person[66] acting in his or her capacity as such a qualified person. If access would otherwise be given to the document but it appears that disclosure of the information to the applicant might be detrimental to his or her physical or mental health or well-being, s 41(3) sets out a process that must be followed in giving access.

[66] A “qualified person” includes a medical practitioner, a psychiatrist, a psychologist, a marriage guidance counsellor and a social worker: FOI Act, s 41(8)

In considering whether or not a document is exempt or contains exempt matter within the meaning of s 41, regard must also be had to s 27A if two things are apparent. The first is that the request is in respect of a document containing personal information about a person, including a person who has died.[67] The second is that it appears to the officer or Minister dealing with the request that the person who is the subject of the personal information, or his or her legal representatives if he or she has died, might reasonably wish to contend that the document, so far as it contains that information, is an exempt document.[68] With regard to the second, s 27A(1A) sets out matters to which the officer, Minister or reviewer must have regard in deciding whether a person might reasonably wish to contend that a document, in so far as it contains personal information, is an exempt document under s 41.
[67] FOI Act, s 27(1AA)(a)
[68] FOI Act, s 27A(1AA)(b)

Once those two things are apparent, a decision must not be made to give access to the document or to an edited copy of that document containing that personal information unless:
“… where it is reasonably practicable to do so having regard to all the circumstances (including the application of subsections 15(5) and (6)):
(a)the agency or Minister has given to the person or the legal personal representative of the person, as the case may be, a reasonable opportunity of making submissions in support of a contention that the document, or edited copy, so far as it contains that information, is an exempt document under s 41; and
(b)the person making the decision has had regard to any submissions so made.”[69]
[69] FOI Act, s 27A(1)

Where submissions have been made and a decision made that the document, or a part of it, is not exempt under s 41, the agency or Minister must give written notice of that to the person making those submissions. Access to the document must not be given until the person has had an opportunity to apply to the Tribunal for review of the decision under s 59A. Where such an application has been made, access may not be given unless the application is ultimately dismissed under
s 42A(4)[70] of the Administrative Appeals Tribunal Act 1975 (AAT Act) or the decision confirmed by the Tribunal.[71]

[70] Section 42A(4) provides that the Tribunal may dismiss the application without proceeding to a review of the application if the person is unable to show, within a prescribed time, that the decision is reviewable. An application may also be dismissed under other provisions of the AAT Act e.g.
[71] FOI Act, s 27A(2)(b)

B.Steps in deciding whether exempt under s 41

In deciding whether a document may be claimed to be an exempt document under s 41, I must decide:
1.whether it contained information of a sort that is “personal information” i.e. I must decide whether:
(1)the document contains information or an opinion, whether true or not, and whether recorded in a material form or not, about a person;
(2)whether the identity of the person is apparent or can reasonably be ascertained;
2.if it does contain personal information of the sort, decide:
(1)if the document includes “matter relating to …” the person requesting access to the document:
(a)if it does, s 41 cannot be relied upon “by reason only of the inclusion in the document of matter relating to that person.”[72]
[72] FOI Act, s 41(2) and see […] below
(2)if the document includes personal information relating to a person or persons other than the applicant seeking access to the document decide:
(a)if disclosure under the FOI Act would involve the unreasonable disclosure of that personal information;
(3)if it would, s 41 may be relied upon to claim that the document is exempt from disclosure in so far as it does; and
(4)decide whether it is possible to make a copy of the document from which the matter exempt under s 41 has been deleted in accordance with s 22 of the FOI Act i.e. a redacted copy of the document.
3.if it contains only matter relating to that person, the exemption under

s 41 cannot apply to the document and, if no other exemption is applicable, access must be granted to the person requesting it; and
4.if it contains matter other than matter relating to the person, decide whether disclosure of that persona information would be an unreasonable disclosure of that personal information. If it is matter of this sort, s 41(1) does not have effect. Consequently, the exemption under s 41(1) cannot be claimed and the person requesting access to the document cannot be denied access to the document on that ground.

C.What is “personal information”?

I have already set out the definition of “personal information” but it is a term that has received some consideration in cases preceding its addition to the FOI Act in on 25 October 1991 both in the form of a definition in s 4(1) and in an amendment to s 41.[73] Those cases included Colakovskiv Australian Telecommunications Corporation[74] (Colakovski), in which Lockhart J considered the meaning to be given to the expression “personal affairs”. That expression then appeared in s 41(1) but the expression “personal affairs” was not defined. At the time, s 41(1) provided:
“A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person).”
[73] Freedom of Information Amendment Act1991 No. 137 of 1991, ss 3 and 29
[74] [1991] FCA 152; (1991) 29 FCR 429; 100 ALR 111; 13 AAR 261; 23 ALD 1; Lockhart, Jenkinson and Heerey JJ

His Honour considered previous authorities of News Corporation Ltd v National Companies and Securities Commission (No 4),[75] Re Williams and Registrar of Federal Court of Australia,[76] Young v Wicks[77] and Department of Social Security v Dyrenfurth.[78] Various views had been expressed as to whether information about “personal affairs” meant private information or information relating to a private affair or whether information related to vocational competence was, not on the face of it, capable of being part of a person’s personal affairs. No view was necessarily put forward as definitive and to be applied in all circumstances. Lockhart J concluded that he:
“…prefer[red] the view that the ‘personal affairs’ of a person within the meaning of ss 41(1) and 12(2) of the FOI Act connotes information which concerns or affects the person as an individual whether it is known to other persons or not. For example, a document may contain statements about a person’s private life in the sense of his personal life which is widely known in various sections of the community. Something may be notorious, but its notoriety does not deprive it of the character of information relating to the person’s ‘personal affairs’. Such a document would therefore prima facie answer the description of one which relates to the ‘personal affairs’ of a person within s 41(1). Whether any disclosure of the information would be an ‘unreasonable disclosure’ within s 41(1) is a different question. If something is notorious about a person and recorded in a document, this may provide in a given case cogent evidence to justify the finding that its disclosure would not represent an ‘unreasonable disclosure’ of the information; but that is a different question from the first question of what constitutes information relating to the ‘personal affairs’ of a person. I agree with the Full Court in Dyrenfurth that it would be inappropriate to attempt to define the meaning of ‘personal affairs’ in some definitive way. It would be unwise to substitute for the word ‘personal’ some other word such as the word ‘private’ because one generally accepted meaning of the word ‘private’ is confidential or not widely known. In my opinion a person’s affairs may be personal to him notwithstanding that they are not secret to him. In conclusion on this point
I observe that in s 3, which states the object of the FOI Act, reference is made (in s 3(1)(b)) to the ‘private’ affairs of persons. I do not regard that circumstance as confining the meaning of ‘personal affairs’ in s 41(1) to affairs that are private in the sense of secret to the person.
26. In this case the Tribunal said (in paragraph 10 of its reasons):
‘However, clearly in considering whether a person’s personal affairs would be disclosed, it is necessary to consider whether the matters which would be disclosed are of a private nature relating to the individual, as distinct from being of a business nature or relating to his or her career.’
In my view this poses too narrow a test. …
27. There is a real question as to whether the name and telephone number of a person can answer the description of ‘information relating to the personal affairs’ of that person under s. 41(1). Viewed as an abstract conception
[75] [1984] FCA 36; (1984) 1 FCR 64; 52 ALR 277; 6 ALD 83; Bowen CJ, St John and Fisher JJ
[76] [1985] AATA 226; (1985) 3 AAR 529, Beaumont J, Senior Member McMahon and Mr Renouf, Member
[77] [1986] FCA 169; (1986) 13 FCR 85; 79 ALR 448 Beaumont J
[78] [1988] FCA 148; (1988) 80 ALR 533; 8 AAR 544; 15 ALD 232; Sweeney, Keely and Ryan JJ
[79] [1991] FCA 152; (1991) 29 FCR 429; 100 ALR 111; 13 AAR 261; 23 ALD 1 at [25]-[27]; 436-437; 118-119; 268; 7-8
I would be inclined to the view that it could not, but such questions are not considered by Courts in the abstract. The present case must be approached on the basis that the relevant documents containing the deleted material state the names, addresses and telephone numbers of persons making the calls or of the subscriber. Plainly enough it would be revealed from the documents when the telephone calls were made, the telephone number from which they emanated, the name of the subscriber, and, at least in some cases the name of the caller and perhaps a pattern of telephone calls.”[79]

Lockhart J’s approach was somewhat wider and is the approach favoured in Parliament’s adoption of the term “personal information”. It is clear from the definition at [58] above, that any reference to the information’s being private is removed as is any distinction between a person’s professional, business or working life, and life beyond those matters. All that there need be is information or an opinion about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion. There is no scope for an enquiry whether the information is true or not. Provided the information is included in what is a “document”[80] for the purpose of the FOI Act, it matters not how the information or opinion is recorded.
[80] FOI Act, s 4(1)

In Kristoffersen v Department of Employment Workplace Relations and Small Business,[81] Kiefel J queried whether the definition required not only that the information identify the person but whether it had to go further and say something about them.[82] Private telephone numbers and addresses of individuals working for a Commonwealth agency have been held to be personal information.[83] I have not been able to find any cases that refer to the extent to which regard can be had to what might be matters of general public knowledge in deciding whether an individual’s identity is apparent, or can reasonably be ascertained, from the information or opinion. That is not an issue that arises in this case.

D. Unwinding intertwined personal information

[81] [2002] FCA 55

[82] [2002] FCA 55 at [27]

[83] Jorgensen v v Australian Securities and Investment Commission [2004] FCA 143 at [43] per Weinberg J

D.1The difficulties

A difficulty in the interpretation and application of s 41(2) arises when a document contains personal information relating to more than one person. That may occur because there are shared circumstances between two or more people as happens in families, in a workplace or in a joint enterprise of some sort. Where the personal information takes, for example, the form of an opinion expressed about a person or a recounting of activities in which a person has been involved, the expression of the opinion or the recounting of the activities may be regarded as personal information about both the person recounting and the person who is the object of the recounting. It may be that the personal information about each person can be separated. At times, however, shared circumstances may mean that personal information about one is necessarily personal information about the other. In those circumstances, it may not be possible to separate the two.

I am satisfied that it is unreasonable to disclose this information under the FOI Act. The reasonableness or otherwise of its disclosure is not assessed by reference to the person making the request under the FOI Act but by reference to any person who may, or may not, have a legitimate reason for wanting that information. It is unreasonable to make that disclosure and I find that the document is exempt under
s 41(1).

Document 4: statutory declaration – s 41

This document comprises three pages and takes the form of a statutory declaration. I am satisfied that it wholly comprises information or opinion about individuals. It contains some information that could be said to be matter relating to Mr Callejo.

I am satisfied that disclosure under the FOI Act would be an unreasonable disclosure of personal affairs relating to a person or persons. It would be a disclosure of information relating to an individual or individuals that is not generally known in the public arena. It has had very limited disclosure and is information of a very personal nature. To disclose it under the FOI Act would be unreasonable.

In so far as document 4 contains matter relating to Mr Callejo, I have considered whether it is possible to make a copy of the document under s 22. It would be possible to prepare a copy of the document leaving in only so much of the information that is matter relating to Mr Callejo. The information in that copy would not make a lot of sense for it would lack its contextual framework but that is not a basis on which an agency can decline to carry out the work under s 22. I am satisfied that it would be reasonably practicable for it to make the copy and, having heard
Mr Callejo, I am satisfied that he would want to have access to such a copy. I have not proceeded to identify with particularity the information that can be said to be matter regarding Mr Callejo because I have found that the whole document is exempt under s 45.

Document 4: statutory declaration – s 45

I am satisfied that disclosure of document 4 under the FOI Act would found an action for breach of confidence within the meaning of s 45. The information is identified with specificity for it is all of the information in that document. For the reasons that document 2 has the necessary quality of confidentiality, it also has that quality.

I am also satisfied that the information was received in the Department in circumstances that import an obligation of confidence in relation to that information. As acknowledged by the Department in [30(a)] of its Statement of Facts and Contentions, information has been provided to the Department for the purpose of a visa application by Mr Callejo’s former spouse. The Department has not stated the type of visa for which she has applied but the hearing proceeded on the basis that it could have been for a sub-class 100 visa. I also note that document 14 in the Schedule of Documents describes the document as a decision record in relation to an application by Maria Contessa Callejo for a sub-class 100 visa.

I have set out the provisions of the Migration Act with some care in order to show that its provisions in relation to family violence lead to a very limited enquiry into whether it has actually occurred. The sources from which information is sought are limited, the parameters in which the consideration is conducted and the decision reached very confined. That they are so confined is understandable in the context. The fact that they are so confined leads also to the conclusion that the information is received in circumstances in which it is intended that it will not be disseminated beyond what is strictly necessary for the consideration of any application for a sub-class 100 visa. It is confirmed by the r 1.27 to the effect that any statutory declaration made under rr 1.25 or 1.26 is not admissible in evidence before a court or tribunal other than in very limited circumstances relating to the decision made on the application for a visa or in relation to the making of the statutory declaration itself.

Disclosure of the information in circumstances other than those relating to the reconsideration or review of a decision by the Department would amount to a misuse of the information. Disclosure under the FOI Act must be judged by reference to a person who has no particular interest in the information in this context. When I do that, I find that disclosure would be to the detriment of the person giving the information. Given the substance of the information and the fact that the statutory declaration is found on the Department’s files and answers the description of documents sought by Mr Callejo in his request, I find that document 4’s author has clearly given the information for a particular and limited purpose. To disclose the information more widely would be contrary to the relationship of trust in which that information was given. I am satisfied that its disclosure is likely to cause its author discomfort and perhaps embarrassment. That finding does not throw any doubt on the author’s good faith or otherwise. All that it does is to recognise that what people say to one person may not be what they say to another. That does not mean that what they say or the opinion they express is incorrect but it does mean that they often edit what they say out of consideration for the listener’s feelings. To reveal all of their thoughts when they are asked to give them and to do so under the FOI Act when that context has nothing to do with the context in which they gave those thoughts would be a betrayal of the relationship of trust and cause them detriment of the sort contemplated by Gummow J in Corrs Pavey.

It follows that I consider document 4 to be exempt under s 45 of the FOI Act. In view of that finding, I have not considered the claim that it is also exempt under s 37(1)(c).

Document 5: computer data base printout – s 41(1)

Document 5 comprises folio 179 and has been partially released to
Mr Callejo. I have examined those parts of the document that have not been released to Mr Callejo and am satisfied that they contain personal information as defined in
s 4(1) of the FOI Act. I am also satisfied that they do not contain matter relating to Mr Callejo.

To disclose the personal information that does not relate to Mr Callejo would be unreasonable. It is information recorded for the purposes of the Department and is not information of the sort that would be known to the public or necessarily widely known. It is information of the sort that people would, quite apart from the definition of the description in s 4(1) of the FOI Act, regard as information that is personal to themselves and for dissemination only to those in whom they chose to confide.

Therefore, I am satisfied that document 5 is exempt under s 41.

Document 6: statutory declaration – s 41(1)

Document 6 is a statutory declaration and, on the basis of the form in which it is presented, I am satisfied that it has been made for the purposes of the consideration of an application for a visa under the Migration Regulations. It identifies the author and the specific circumstances in which the statutory declaration was given. It contains personal information about the author and about others. To a limited extent, it contains matter relating to Mr Callejo but that matter can be separated from the remaining personal information relating to others. That information could be separated under s 22 of the FOI Act but I have not considered that course in view of my conclusion regarding the exemption of document 5 under
s 45.

For the reasons I have given in relation to document 3, I am satisfied that disclosure of document 6 would be an unreasonable disclosure of personal information under s 41(1).

Document 6: statutory declaration – s 45

For the reasons that I have given in relation to document 4, I am satisfied that document 6 is exempt under s 45 of the FOI Act. I have no need to consider whether it is also exempt under s 37 as claimed by the Department.

Documents 7, 8, 9, 10 and 11: statutory declarations: ss 41(1) and 45

The statutory declarations that are documents 7, 8, 9, 10 and 11 take the same form as document 6. For the reasons I have given in relation to document 5, relating back as they do to document 3, I am satisfied that the documents are exempt under s 41(1) except in so far as they contain matter relating to Mr Callejo. Again,
I have not considered the application of s 22(1) of the FOI Act for I am also satisfied that disclosure of the whole of the documents would found an action for breach of confidence within the meaning of s 45(1) of the FOI Act. Therefore, they are exempt in their entirety under that provision. My reasons for reaching that conclusion are the same as my reasons for doing so in relation to document 4.

Documents 12 and 13: computer database printout: s 41(1)

Documents 12 and 13 comprise folios 285 and 287 respectively and have been partially released to Mr Callejo. I have examined those parts of the documents that have not been released to Mr Callejo and am satisfied that they contain personal information as defined in s 4(1) of the FOI Act. I am also satisfied that they do not contain matter relating to Mr Callejo.

To disclose the personal information that does not relate to Mr Callejo would be unreasonable. It is information recorded for the purposes of the Department and is not information of the sort that would be known to the public or necessarily widely known. It is information of the sort that people would, quite apart from the definition of the description in s 4(1) of the FOI Act, regard as information that is personal to themselves and for dissemination only to those in whom they chose to confide.

Therefore, I am satisfied that documents 12 and 13 are exempt under
s 41.

Document 14: decision record in relation to application by Maria Contessa Callejo for sub-class 100 visa

I am satisfied that document 14 contains matter relating to Mr Callejo as well as personal information relating to another person or persons. Section 41(1) does not apply to the matter relating to Mr Callejo. For the reasons I have given in relation to document 3, I am satisfied that disclosure of personal information relating to persons other than Mr Callejo would be unreasonable. To the extent that it contains that information, I am satisfied that the document is exempt under s 41(1).

The extent to which the document contains personal information relating to the name of the decision-maker and the position held by that decision-maker, I do not consider that disclosure would be unreasonable. The fact that a particular person undertakes a particular task as a delegate is a matter relating to that person’s task under relevant statutory provisions. The fact that decisions are made is a matter of public knowledge and the fact that a particular delegate has made a decision is a matter of fact. Disclosure of that fact is not unreasonable and I note that the Department itself seems to have taken this view by disclosing her name in the Schedule of Documents.

Again, I have not considered the extent to which the matter relating to Mr Callejo can be excised from the whole of document 14 and access to it given by recourse to s 22 of the FOI Act. I have not done so for I am satisfied that, in so far as the information is matter relating to him, its disclosure would found an action for breach of confidence within the meaning of s 45 of the FOI Act. My reasons for reaching that conclusion are those I have given in relation to document 4. I have not considered the exemption under s 37(1)(c).

Document 15: DIAC Form 80 being personal particulars for character assessment: s 41(1)

To a very limited extent on folio 313, document 15 contains matter relating to Mr Callejo. Otherwise, it does not. It contains personal information relating to another person or persons. For the reasons I have given in relation to document 3, its disclosure would be unreasonable within the meaning of s 41(1) in so far as it does not contain matter relating to Mr Callejo. Therefore, I find that the document is not exempt in relation to the information given about Mr Callejo in response to question 14 on folio 313.

I am satisfied that a document can be prepared that would excise the exempt information and leave only the matter relating to Mr Callejo. It would be reasonably practicable for the Department to prepare that copy. All that would have to be done is to cover all the information on the page other than question 14 with another sheet of paper and photocopy it. It is reasonably practicable within the meaning of s 22. I note that the Department came to this conclusion during the hearing and gave Mr Callejo a redacted copy of document 15 revealing the information at question 14.

Document 16: decision record and letter in relation to application by Maria Contessa Callejo for sub-class 100 visa in relation to her and Audrey Frances Paz – s 41(1)

As described in the Schedule of Documents, folios 332 to 334 comprise a letter to Mrs Callejo. It contains personal information relating to her in the file reference, in the address block, in the salutation and in the first two paragraphs after the salutation. None of that information is matter relating to Mr Callejo. For the reasons I have given in relation to document 3, I consider that its disclosure under the FOI Act would be unreasonable. Therefore, to that, I consider that it is exempt under s 41(1) of the FOI Act.

The remainder of the document is information of a generic sort relating to visas. It is not linked to any particular person and cannot be regarded as information about any person. For the reasons I have given in relation to document 14, I do not consider that the name and position of the person signing the letter would be an unreasonable disclosure of personal information. Therefore, from the first word of the sixth line of typing after the salutation in the letter, folios 332 to 334 are not exempt under s 41(1).

Folio 335 also contains information that is personal information within the meaning of s 41(1) of the FOI Act. It is the personal information of one or more persons. In so far as the last two lines are concerned, I am not satisfied that its disclosure would be unreasonable. It refers to the delegate’s name and position number and I rely on the reasons I gave in relation to that issue in considering document 14, in concluding that its disclosure would not be unreasonable.

Lines 7 and 8 of folio 335 contain matter relating to Mr Callejo as do lines 12 to 13 up to, but not including, the second hyphen. The consequence is that
s 41(1) has no effect in relation to information in those lines.

I am satisfied that disclosure of the remainder of the document would be an unreasonable disclosure of personal information within the meaning of s 41(1).

Document 16: decision record and letter in relation to application by Maria Contessa Callejo for sub-class 100 visa in relation to her and Audrey Frances Paz – s 37(1)(c)

Under this heading, I have considered those parts of document 16 that
I find to relate to Mr Callejo and so not to be exempt under s 41(1). If these parts are to be exempt, I must be satisfied that disclosure under the FOI Act would, or could reasonably be expected to, endanger the life or physical safety of a person. I have examined the evidence, which takes the form of the document itself and its contents, the whole context of the matter and the matters deposed to in the confidential affidavits of Mr Mark O’Rourke and Ms Alice Linacre.[228] On the basis of that information, I find that there has been consultation with the deponents of the statutory declarations. I also find that those deponents have expressed concern over the release of any information regarding the contents of the statutory declarations. Concern is expressed about the safety of the deponents to those statutory declarations should their contents be released. There is, however, no evidence on which I am satisfied that disclosure of the very limited information that I have identified and that relates to
Mr Callejo would endanger the life or safety of any person.

[228] Exhibits 2 and 3

In so far as the passage from the first word of the sixth line on folio 334 to the end of the letter on folio 332 is concerned, it is generic material not relating to any person. In so far as it might suggest that a visa has been granted, it is difficult to see that this could endanger the life or physical safety of any person. In assessing whether s 37(1)(c) applies, it is appropriate to look at the source from which such danger could come and so the reactions of those who may come to know the information as a result of its disclosure under the FOI Act. The only source that could be suggested on the material is Mr Callejo himself. On the assumption that he has read the Schedule of Documents lodged and filed in this case, and so part of the public record of the Tribunal, I find that he knows that a sub-class 100 visa has been granted to Mrs Callejo. There is no evidence that, as a result of possessing that knowledge, he has taken any action of a sort that would endanger the life or physical safety of any person. Whether he has taken any action that would endanger the psychological well being of any person is not a matter I have considered for the exemption in s 37(1)(c) does not permit consideration of that sort. For these reasons, I am not satisfied that the information from the first word of the sixth line on folio 334 to the end of the letter on folio 332 is exempt under s 37(1)(c).

The same reasoning leads me to conclude that the information in lines 7 and 8 of folio 335 and lines 12 to 13 up to, but not including, the second hyphen are not exempt under s 37(1)(c)

DECISION

It is clear that, apart from document 16, I have not found it necessary to consider each of the claims that certain of the documents are exempt under
s 37(1)(c). Therefore, except in relation to document 16, the following decisions are not to be taken as affirming or otherwise the claim that the documents are exempt under s 37(1)(c). For the reasons I have given:

1.in relation to document 1, I:
(1)affirm the respondent’s decision that:
(a)it is exempt under s 41(1) of the Freedom of Information Act 1982 (FOI Act) in so far as it contains personal information relating to a person or persons other than the applicant; and
(b)that access be granted to a copy of the document from which the matter relating to the applicant remains and which has been prepared in accordance with s 22 of the FOI Act;
2.in relation to document 2, I:
(1)set aside that part of the respondent’s decision that claims folios 159 to 161 are exempt under s 41(1) of the FOI Act; and
(2)substitute a decision that:
(a)folios 159 to 161 are not exempt under s 41(1);
(b)affirm the decision that folio 158 is exempt under

s 41(1); and
(c)affirm the decision that folios 158 to 161 are exempt under s 45 of the FOI Act;
3.in relation to document 3, I:
(1)affirm the respondent’s decision that the document is exempt under s 41(1);
4.in relation to document 4, I:
(1)affirm the respondent’s decision that:
(a)it is exempt under s 41(1) of the Freedom of Information Act 1982 (FOI Act) in so far as it contains personal information relating to a person or persons other than the applicant;
(2)in relation to matter relating to the applicant:
(a)set aside the respondent’s decision that it is exempt under s 41(1); and
(b)substitute a decision that, but for my decision regarding s 45, it would have been reasonably practicable to make a copy of the document under s 22;
(3)affirm the respondent’s decision that the whole of the document is exempt under s 45;
5.in relation to document 5: I:
(1)affirm the respondent’s decision that it is exempt under s 41(1);
6.in relation to document 6, I:
(1)affirm the respondent’s decision that:
(a)it is exempt under s 41(1) of the Freedom of Information Act 1982 (FOI Act) in so far as it contains personal information relating to a person or persons other than the applicant;
(2)in relation to matter relating to the applicant:
(a)set aside the respondent’s decision that it is exempt under s 41(1); and
(b)substitute a decision that, but for my decision regarding s 45, it would have been reasonably practicable to make a copy of the document under s 22;
(3)affirm the respondent’s decision that the whole of the document is exempt under s 45;
7.in relation to each of documents 7, 8, 9, 10 and 11, I:
(1)affirm the respondent’s decision that:
(a)it is exempt under s 41(1) of the Freedom of Information Act 1982 (FOI Act) in so far as it contains personal information relating to a person or persons other than the applicant;
(2)in relation to matter relating to the applicant:
(a)set aside the respondent’s decision that it is exempt under s 41(1); and
(b)substitute a decision that, but for my decision regarding s 45, it would have been reasonably practicable to make a copy of the document under s 22;
(3)affirm the respondent’s decision that the whole of the document is exempt under s 45;
8.in relation to each of documents 12 and 13, I: affirm the respondent’s decision;
9.in relation to document 14, I:
(1)affirm the respondent’s decision that:
(a)it is exempt under s 41(1) of the Freedom of Information Act 1982 (FOI Act) in so far as it contains personal information relating to a person or persons other than the applicant;
(2)in relation to matter relating to the applicant:
(a)set aside the respondent’s decision that it is exempt under s 41(1); and
(b)substitute a decision that, but for my decision regarding s 45, it would have been reasonably practicable to make a copy of the document under s 22;
(3)affirm the respondent’s decision that the whole of the document is exempt under s 45;
10.in relation to document 15, I:
(1)set aside the decision in so far as it relates to the section described as question 14 on folio 313;
(2)substitute for that part of the decision, a decision that it is not exempt under s 41(1);
(4)otherwise affirm the decision; and
11.in relation to document 16, I:
(1)set aside the decision in so far as it relates to the first word on the sixth line on folio 334 to the end of the letter on folio on 332;
(2)substitute a decision that it is not exempt under either s 41(1) or s 37(1)(c); and
(3)otherwise affirm the decision.

I certify that the two hundred and fifty paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed: ....................................................................
Kate Conners Associate

Date of Hearing  10 February 2010
Date of Decision  8 April 2010
Counsel for the Applicant  Ms C Symons
Solicitor for the Applicant  Mr Hung Tran
AJH Lawyers

Counsel for the Respondent Mr C Horan
Solicitor for the Respondent Ms A Linacre
Clayton Utz

If a delegate of the Minister were to refuse the visa, s 360 of the Migration Act would require the Migration Review Tribunal to invite the alleged victim, as the applicant for the visa, to appear and give evidence and present arguments relating to the issues arising in relation to the decision under review:
s 360(1). There is no similar provision relating to the alleged perpetrator.

s 42A(1) (dismissal by Tribunal with consent of all parties); s 42A(2) (dismissal of application if applicant fails to appear); s 42A(5) (dismissal of application if applicant fails to proceed with the application or to comply with a direction in relation to the application); and s 42B (dismissal where application frivolous or vexatious). No mention is made of dismissal under any provision other than
s 42A(4). The policy reasons for their omission is not clear and nor is the reason for omitting any reference to the Tribunal’s power to dismiss an application where it has no jurisdiction. That is a power quite separate from that given by s 42A(4) and is necessarily implicit in the Tribunal’s power to review decisions in respect of which it is given jurisdiction to do so.

[1992] AATA 84; (1992) 26 ALD 585; (1992) 15 AAR 297 per O’Connor J, President,
Mr Attwood and Mr Julian, Members