Re Lobo and Department of Immigration and Citizenship

[2010] AATA 583

CATCHWORDS – FREEDOM OF INFORMATION – right to access limited to documents in possession of agency or Minister on day request received.

Administrative Appeals Tribunal Act 1975 s 37
Freedom of Information Act 1982 ss 1(1)(a), 4(1), 11(2)(a), 15(1)(b), 16(1)(a), 16(1)(b), 16(2)(a), 16(2)(b), 16(3)(a), 16(3)(b), 16(3A), 16(4), 18, 24(1)(a), 24(2), 27(1AA)(b), 29(1)(a) and (b), 29(1)(f), 29(2), 29(3), 29(5)(b), 41(1), 41(1AA), 41(2), 55(1)(a), 55(1)(aa), 55(3) and 56(1)

Freedom of Information (Fees and Charges) Regulations rr 4(a), 4(b) and 11(1)

Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511; 20 AAR 10
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, (1979) 2 ALD 60, (1979) 24 ALR 577
Fletcher v Federal Commissioner of Taxation (1988) 19 FCR 442
Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342; 87 ALR 506; 15 ALD 671; 9 AAR 255
Jebb v Repatriation Commission [1988] FCA 105; (1988) 80 ALR 329; 8 AAR 285
Nevistic v Minister for Immigration and Ethnic Affairs (1981) 51 FLR 325
Re Easton and Repatriation Commission (1987) 12 ALD 777; 6 AAR 558
Re Edelsten and Australian Federal Police [1985] AATA 350; (1985) 9 ALN N65; 4 AAR 220
Re Federated Furnishing Trade Society of Australasia [1993] FCA 62; (1993) 41 FCR 151; 113 ALR 137
Re McGourty and Repatriation Commission (1988) 9 AAR 87
Re Murtagh and Federal Commissioner of Taxation [1984] AATA 249; (1984) 54 ALR 313; 6 ALD 112; 1 AAR 419; [1984] 2 ATC 4516; 15 ATR 787
Re Radar Investments Pty Ltd and Health Insurance Commission [2004] AATA 166; (2004) 80 ALD 733
Re Tiknaz and Director-General of Social Services (1981) 4 ALN N44
Re Toren and Secretary, Department Immigration and Ethnic Affairs [1995] AATA 60
Shi v Migration Agents’ Registration Authority [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 48 AAR 345; 103 ALD 467; 82 ALJR 1147
Surinakova v Minister for Immigration and Ethnic Affairs (1991) 33 FCR 87, (1991) 26 ALD 203

The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services [1992] FCA 599; (1992) 39 FCR 225; 111 ALR 1; 28 ALD 50; 16 AAR 566

DECISION AND REASONS FOR DECISION [2010] AATA 583

ADMINISTRATIVE APPEALS TRIBUNAL      )     

)         2010/0947

GENERAL ADMINISTRATIVE DIVISION       )

Re:PHILLIP LOBO

Applicant

And:DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal:                   Deputy President S A Forgie

Place:  Melbourne

Date:  6 August 2010

Decision:The Tribunal decides that:

it has jurisdiction to review the respondent’s decision or decisions made in relation to a request made on 14 November 2008 under the Freedom of Information Act 1982 in respect of documents coming within the ambit of the request up to and including 14 November 2008.

S A FORGIE

Deputy President

REASONS FOR DECISION

Mr Lobo was the former Chief Executive Officer and Administrator of the Sydney International College of Business (SICB) located in Melbourne and Sydney.  On 14 November 2008, he made two requests to the Department of Immigration and Citizenship (Department) under the Freedom of Information Act 1982 (FOI Act)[1] for:

“All documents and files created and held by the Department relating to me since May 2007.”[2]

“All documents and files of whatsoever nature and kind in regard to Philip Lobo, SICB and the NSW Investigations and the students attending who have attended SICB, on the basis of which the Investigation is proceeding.”[3]

[1] The FOI Act has been substantially amended by the Freedom of Information Amendment (Reform) Act 2010 with effect immediately after 1 November 2010 but I have decided the issue by reference to the legislation as now in force.

[2] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents) at 149

[3] T documents at 157

1. A preliminary question has arisen as to whether the Tribunal should review the Department’s decision on the basis that it is to have regard to all documents that come within the requests and that were in its possession on the day
   Mr Lobo applied to the Tribunal for review (9 March 2010), on the day he made his request or on some other date.  I have decided that the Tribunal has jurisdiction to review the respondent’s decision or decisions made in relation to a request made on 14 November 2008 under the Freedom of Information Act 1982 in respect of documents coming within the ambit of the request up to and including 14 November 2008.

   
   

BACKGROUND

1. Mr Lobo’s solicitor summarised Mr Lobo’s requests in her covering letter in this way:

   “… all documents and files of whatsoever nature and kind and wheresoever held, including in respect of the ongoing investigations by the New South Wales, Fraud Control and Investigations, where Alison Gibberd is the Team Leader from 2007 to date and moving forward.”[4]

Mr Lobo made the request through his solicitor, Ms Jockel, who advised the Department that Mr Lobo understood the investigation was ongoing.  He did not seek further documents which had previously been seized from SICB premises under a search warrant executed by the Australian Federal Police on 20 June 2007 and which the Department had copied to him.

[4] T documents at 147

1. The Department identified the files coming within the request and there has been correspondence between it and Ms Jockel regarding matters such as an estimate of charges associated with the requests, their processing and the fate of earlier requests in relation to which Mr Lobo had not received a response.  On

   
   

   20 January 2009, the Department gave Ms Jockel written notice under s 24(6) of the FOI Act that it would refuse the request on workload considerations unless Mr Lobo narrowed his request.[5]  In response to that, Ms Jockel advised the Department on

   
   

   23 January 2009 that he sought the following documents as a matter of priority.  Once he had received them, he would consider the remainder of the documents he sought in the balance of his requests:

   “∙        documents pertaining to the investigation being conducted by Fraud Control and Investigations New South Wales regarding the College and Mr Lobo; and

   ∙documents created between January 2007 and present regarding the College and Mr Lobo.”[6]

   [5] T documents at 192-194

   [6] T documents at 199-200

1. Earlier discussions between the parties in December 2008 had led to
   an agreement that the Department would deal with the request in a series of decisions. The first was dated 27 February 2009 and gave partial release to documents it identified in a Schedule to the letter. Where access was not granted, exemption was claimed under one or other of ss 37(1)(a), 37(1)(b), 37(2)(b), 40 and 41 of the FOI Act.[7]

   
   

   [7] T documents at 224-238

1. The Department made its second decision on 10 March 2009 and it again gave partial access to some of the documents that had been requested and claimed exemption for others.[8]  The third dated 20 March 2009,[9] the fourth dated
   17 April 2009,[10] the fifth dated 17 June 2009,[11] the sixth dated 9 July 2009,[12] the seventh dated 21 July 2009,[13] the eighth dated 10 August 2009[14] and the ninth dated 13 August 2009[15] were to the same effect.

   
   

   [8] T documents at 247-258

   [9] T documents at 264-277

   [10] T documents at 300-317

   [11] T documents at 364-375

   [12] T documents at 390-404

   [13] T documents at 434-447

   [14] T documents at 482-495

   [15] T documents at 514-528

1. In the course of these initial partial decisions and through Ms Jockel, Mr Lobo applied under s 54 for internal review of the first of the Department’s decisions on 24 April 2009.[16]  She followed with similar applications for review of the others on 12 June 2009,[17] 13 July 2009,[18] 21 July 2009,[19] 10 August 2009,[20]
   10 September 2009[21] and 16 September 2009.[22]

   
   

   [16] T documents at 321-326

   [17] T documents at 358-363 and 448-453

   [18] T documents at 416-422

   [19] T documents at 454-460

   [20] T documents at 496-502

   [21] T documents at 533-538

   [22] T documents at 539-547

1. In a further letter dated 14 October 2009, Ms Jockel referred to the narrowing on 23 January 2009 of Mr Lobo’s requests dated 14 November 2008.[23] 

   [23] T documents at 551-552

   
   

   In its response dated 22 October 2009, the Department advised Ms Jockel that it had released nine bundles of documents to her between 27 February 2009 and 13 August 2009.  It also advised:

   “… The documents assessed in both the original decision and the internal review encompass all material outlined in your dot points above, including documents created between January 2007 and November 2008 (the date of your request).  In addition we have included some material created after that date.

   Your most recent letter has now modified this timeframe.  FOI requests are processed up to a point in time, usually the date of the request.  In this case
   we can consider this a new request for:

   ·such further or other documents relating to the Applicant and/or the SICB which were created from December 2008 to date (the date your request becomes valid).”[24]

The Department asked Ms Jockel if the amended scope of the request was agreeable to her.

[24] T documents at 559

THE SUBMISSIONS

1. [25] [2004] AATA 166; (2004) 80 ALD 733

   On behalf of the Department, Ms Gangemi relied on my decision in
   (Radar Investments) in which I decided that the Tribunal’s jurisdiction was limited to those documents that were within the scope of the request and were in the possession of the Health Insurance Commission (HIC) on the day it received the request.  

   
   Re Radar Investments Pty Ltd and Health Insurance Commission[25]

1. Ms Jockel relied on the earlier authorities of Re Murtagh and Federal Commissioner of Taxation[26] (Murtagh) and Re Edelsten and Australian Federal Police[27] (Edlesten) and my decision in Re Toren and Secretary, Department of Immigration and Ethnic Affairs[28] (Toren).  These took a broader view of the Tribunal’s jurisdiction and extended the documents that could be considered beyond those in the possession of the relevant agency on the day it received the request. 
   Ms Jockel referred also to the considerable amount of time that has passed since
   Mr Lobo had made his request to the Department.  She compared Mr Lobo’s circumstances with those of Dr Edelsten submitting that it would be in the public interest to permit him to have access to all material which is relevant to the investigation into his activities.  In this way, he could clear his name.  Permitting
   Mr Lobo to have access to documents that came into existence after he made his requests on 14 November 2008 and before he lodged his application for review in the Tribunal on 9 March 2010 would be both timely and cost effective.  To determine otherwise, Ms Jockel submitted, would be to further undermine the intent of the FOI Act.

   
   
   
   
   [26]

   [27]

   [28] [1995] AATA 60

TRIBUNAL’S EARLIER DECISIONS ON ISSUE

1. I will begin with the cases to which I have been referred.

Re Murtagh and Federal Commissioner of Taxation

1. In Murtagh, the Tribunal considered a request which Mrs Murtagh had made to the Commissioner for Taxation on 26 May 1983 for access to all records relating to the assessment of her income tax returns for the years 1980, 1981 and 1982.  It concluded:

“… In our opinion, the Tribunal may make a decision with respect to documents which have come into existence after the date of the request for access provided that those documents are within the ambit of the decision under review, that is to say, that they raise no separate issue but are documents the access to which is established by the decision under review and the decision on review.  Because of its function, the Tribunal must necessarily, from time to time, take account of facts which have come into existence after the date of the decision under review.  Plainly, relevant documents will not always be only those documents which were in existence at the time of the making of the request for access.  The original decision-maker may, and usually does, give a decision with respect to all documents within the category of the applicant’s request which are known to be in the possession of the agency at the time of his decision.  A decision on internal review may, and usually does, take into account all documents within the category of the applicant’s request which are known to be in the possession of the agency at the time of that decision.  Similarly, the Administrative Appeals Tribunal, provided that within its jurisdiction it is reviewing a decision to refuse access to documents, may give consideration to all documents which fall within the ambit of the dispute before it notwithstanding that some may have come into existence between the time of the decision under review and the time of the Tribunal’s decision.”[29]

[29] [1984] AATA 249; (1984) 54 ALR 313; 6 ALD 112 at 316; 115

Re Edelsten and Australian Federal Police

1. The reasoning in Murtagh was adopted by the Tribunal in Edelsten but that Tribunal did not accept that the logical conclusion was that it should consider all documents in existence.  It considered whether some cut-off date should be imposed.  It did not accept that an agency is required to provide all future documents relating to a request and explained its reasons:

   “… Section 11 of the Act gives to a person a legally enforceable right to obtain access, in accordance with the Act, to a document other than an exempt document.  Section 15 provides that a person who wishes to obtain access to a document may make a request for access to the document.  The request must provide such information as is reasonably necessary to enable the agency to identify the document.  Section 18 provides that where the requirements of
   

   [30] [1985] AATA 350; (1985) 9 ALN N65; 4 AAR 220 at [17]; N69-N70; 225-226

   s 15 have been met, and where any charge which, under the regulations, is required to be paid before access is granted has been paid, a person shall be given access to a document provided that it is not an exempt document.  It seems to us that these sections are expressed in terms of a document that is in existence at the time of the making of a request or a decision.  They do not appear to give a person a right to obtain, or to impose upon an agency or Minister a correlative duty to provide, access to all future documents which satisfy the terms of the request.”[30]

1. The Tribunal then went on to consider the effect of s 54 of the FOI Act.  The practical effect of that section is that, in most instances, a decision made in relation to a request under the FOI Act must be reviewed by the Minister or agency before the person making the request may apply to the Tribunal for review of the decision.  The Tribunal said:

   “ Section 54 of the FOI Act appears to suggest that what is required upon an internal review is that the decision of the original decision-maker be considered afresh, rather than that a new decision is required in respect of all documents in the possession of the agency at the time of the review.  In relation to review by this Tribunal, while it may theoretically be possible to deal with all documents which have come into existence before the date of the hearing, such a course would pose considerable practical difficulties.  It will rarely be possible for either party properly to conduct its case in respect of documents which have come into existence shortly before the hearing date. 
   

   [31] [1985] AATA 350; (1985) 9 ALN N65; 4 AAR 220 at [18]; 69; 225

   As a general rule it seems appropriate to adopt the date of the application for review before this Tribunal as the last possible cut-off date.”[31]

1. Dr Edelsten had made his request on 26 June 1983 and the Australian Federal Police had considered documents that were of the sort he had requested and that were in its possession in June 1984.  The Tribunal took these matters into account in deciding that the:

   “… most appropriate approach to adopt was to deal only with those documents listed in the Schedule.  In so doing, the Tribunal would be dealing with almost all of the documents in existence at the time at which the application was made to the Tribunal.  As it was clear that further documents satisfying the terms of the request had come into existence after that date, and that it seemed highly likely that more would come into existence after the Directions hearing, a direction was made that the respondent be required to state in an affidavit simply the nature, extent and subject matter of any further documents that came into its possession after the final date of the Schedule. 
   

   [32] [1985] AATA 350; (1985) 9 ALN N65; 4 AAR 220 at [19]; 70; 226

   It was thought that if the applicant proved successful in some or all respects of the case as far as the earlier documents were concerned, the respondent could be requested to consider whether access should be given to some or all of the later documents.’[32]

Re Radar Investments Pty Ltd and Health Insurance Commission

1. In Radar Investments, I decided that the Tribunal’s jurisdiction is limited to those documents that were within the scope of the request on the day on which the HIC received the request.  At the time, the High Court was yet to hear and decide Shi v Migration Agents’ Registration Authority (Shi).[33]  The principles relevant to deciding the scope of the Tribunal’s power to review a decision and whether it could rely on evidence that came into existence after the decision under review had been made were found in various cases.  They included Freeman v Secretary, Department of Social Security[34] (Freeman), Re Tiknaz and Director-General of Social Services[35] (Tiknaz), Jebb v Repatriation Commission,[36]  Re Easton and Repatriation Commission[37] (Easton) and Re McGourty and Repatriation Commission[38] (McGourty).  I will return to those cases for they provided the background to the decision I reached in Radar Investments.

   [33] [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 48 AAR 345; 103 ALD 467; 82 ALJR 1147

   [34] [1988] FCA 294; (1988) 19 FCR 342; 87 ALR 506; 15 ALD 671; 9 AAR 255

   [35] (1981) 4 ALN N44 (Davies J, President, Senior Member Ballard and Dr Garlick, Member)

   [36] [1988] FCA 105; (1988) 80 ALR 329 (Davies J)

   [37] (1987) 12 ALD 777 (Davies J)

   [38] (1988) 9 AAR 87 (Davies J)

1. In Radar Investments, three formulations had been adopted in the request that sought 27 categories of documents:

   “∙        five of the categories sought [related] to documents in relation to certain events  ‘occurring between 1 November 1998 and the present, in relation to …’ specified matters;

   ∙twenty of the categories sought access to documents between certain persons or of a certain description ‘in relation to …’ certain events; and

   ∙two of the categories sought access to documents ‘created in or after November 1998 concerning the application by …’ named persons.”[39]

[39] [2004] AATA 166; 80 ALD 733 at [38]; 744-745

1. After examining the framework of the Administrative Appeals Tribunal Act 1975 (AAT Act) and the FOI Act and the request, I concluded that HIC:

   “… was required to consider Radar Investment’s request only in relation to documents in its possession at the time it received the request.  On internal review, the decision-maker is limited to reviewing the initial decision and so is limited to reviewing the decision made in respect of the request as was the initial decision-maker.  As the Tribunal reviews the internal review decision, it must also be limited to that request and so to the documents in possession of HIC at the time the request was received.”[40]

   [40] [2004] AATA 166; 80 ALD 733 at [40]; 745

1. My reasons for deciding that HIC was required to consider Radar Investment’s request only in relation to documents in its possession at the time it received the request are found in the previous paragraph:

   “         There could well be documents that have come into the possession of HIC after the date on which it received Radar Investment’s request and which meet one or more of the descriptions in the three categories.  It seems to me, however, that, on a proper reading of the FOI Act, the request must be taken to refer to documents in the possession of HIC on the date that it is received.  Radar Investments has a legally enforceable right to have access to documents in the possession of HIC but it is a right that is tailored by the provisions of the FOI Act.  One of the provisions according to which it is tailored is 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 that document’ (s. 15(1)).  It assumes that the document is in the agency's possession at the time that the request is made.  So too do the other provisions of the FOI Act.  A provision such as s. 21 has regard to events that may occur in the future but none refers to documents that are yet to come into existence.”[41]

   [41] [2004] AATA 166; 80 ALD 733 at [39]; 745

DETERMINING TRIBUNAL’S JURISDICTION BEFORE SHI v MIGRATION AGENTS’ REGISTRATION AUTHORITY

1. As a general proposition, the Tribunal is not limited to the facts that were before the decision maker.  Its role was succinctly stated by Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (Drake)[42] when they said:

   “The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him.  The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.”[43]

   [42] (1979) 24 ALR 577; 46 FLR 409; 2 ALD 60

   [43] (1979) 24 ALR 577 at 589

1. At the time, however, a distinction was drawn between what could generally be described as cancellation decisions on the one hand and entitlement decisions on the other.  Subject to particular provisions in the relevant legislation leading to a contrary conclusion, a classification of a decision as one or the other would lead to a difference in the time at which the Tribunal would review the particular decision under consideration.  The distinction remained constant even though cancellation and refusal decisions could also be characterised as coming
   under a wide and diverse range of decision types from decisions.  They ranged from decisions relating to income maintenance for individuals, through to registration decisions either entitling or not entitling a person to receive a benefit (such as the right or entitlement to carry out an activity or to be paid an amount of money) and then to decisions imposing taxation. 

   
   

1. The distinction has been made in a number of cases, some of which were brought together by Davies J in Freeman.  His Honour was concerned with a decision to cancel a widow’s pension and he reviewed the earlier decisions of Tiknaz, Murtagh, Edlesten and Jebb.  The principles that could be drawn from his decision were that regard must always be had to the nature of the decision under review.  The Tribunal was entitled to take into account all of the facts proved before it but must do so within the confines of the decision under review.  So, in the case of Mrs Freeman, Davies J said that the issue to be decided by the Tribunal:

   “…was whether, having regard to those facts, the decision to cancel made on 19 May 1987 was the correct or preferable decision, not whether Mrs Freeman had an entitlement to a widow’s pension as at the date of the Tribunal’s decision.”[44]

   [44] (1988) 19 FCR 342 at 345

1. His Honour contrasted the task that the Tribunal had to undertake in:

   “… Re Tiknaz, in Re Easton, in Jebb’s case and in McGourty’s case, [where] the decision under review was a decision refusing to grant a pension or benefit that had been applied for.  In each case, it was held that there was jurisdiction to consider entitlement not only as from the date of the application but also entitlement up to the date of the Tribunal’s decision.  This was because the function of the Administrative Appeals Tribunal formed part of an administrative continuum and, in reviewing a refusal to grant a pension or benefit that had been applied for, it was proper for the Tribunal to consider the entitlement to the pension not only as at the date of the application for the pension or benefit or at the date of the decision refusing to grant it but also up to the time of the Tribunal’s decision.”[45]

   [45] (1988) 19 FCR 342 at 345

1. If limited to reviewing the decision at the time it was made, there are limits on the evidence to which the Tribunal may have regard.  Those limits are illustrated by the judgment of Wilcox, Burchett and French JJ in The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services[46] (HBF case).  The limited way in which regard can be had to evidence of events after the date of the decision was referred to a year earlier by Hill J in Surinakova v Minister for Immigration and Ethnic Affairs[47] (Surinakova).

   [46] [1992] FCA 599; (1992) 39 FCR 225; 111 ALR 1; 28 ALD 50; 16 AAR 566

   [47] (1991) 26 ALD 203

1. The HBF case illustrated the way in which evidence of matters happening after a relevant period might relate to that period.  Under the National Health Act 1953, the Minister might give directions to a registered health insurance organisation with respect to the scope and level of benefits available to contributors.  Once registered, the organisation was required to notify the Secretary of certain changes it made to its constitution, articles of association or rules.  If the Minister was of the opinion that a change might, among other matters, impose an unreasonable or inequitable condition affecting the rights of any contributors, that Minister might declare that the change had not come into operation.  Wilcox, Burchett and French JJ explained how the particular decision limited the evidence to which the Tribunal could have regard:

   “In the present case, the question before the primary decision-maker (the delegate of the Minister) was whether, at the time it took effect, the change imposed an unreasonable or inequitable condition; not whether, in the light of developments over the ensuing three years until the Tribunal hearing, the effect of the rule change was to occasion a state of unreasonableness and inequity to contributors. Of course, in considering the position as at the date of the rule change, the Tribunal is not confined to the historical position.  It is entitled to receive evidence as to prospective developments in relation to IVF, as they appear at the date of the rule change.  The reason is that, in evaluating the effect of the change as at that date, account may be taken of predictable developments.  But the evidence must be related back to the date of the change.”[48]

   [48] [1992] FCA 599; (1992) 39 FCR 225; 111 ALR 1; 28 ALD 50; 16 AAR 566 at [24]; 234; 11; 59; 575

1. The second example is found inSurinakova v Minister for Immigration and Ethnic Affairs,[49] in which Hill J said:

   “There may be occasions where evidence of events subsequent to the decision may have relevance, not in the sense that those events are matters that should have been taken into account at the time the decision was made, but rather as showing that the probability of the subsequent event happening is one that could be taken into consideration.”[50]

   [49] (1991) 33 FCR 87; 26 ALD 203

   [50] (1991) 33 FCR 87; 26 ALD 203 at 94; 205

DETERMINING THE TRIBUNAL’S JURISDICTION AFTER SHI v MIGRATION AGENTS’ REGISTRATION AUTHORITY

1. The issue facing the High Court in Shi was whether, in reviewing it, the Tribunal could have regard to matters arising after the date of the initial decision by the Migration Agents’ Registration Authority (MARA).  MARA had cancelled
   Mr Shi’s registration as a migration agent under the Migration Act 1958 on the basis that he was not a person of integrity or a fit and proper person to give migration assistance.  MARA had made its decision in July 2003 but, provided the applicant complied with certain conditions, the Tribunal had stayed the operation of that decision until the determination of the application.  In September 2005, the Tribunal set that decision aside and substituted another.

   
   

1. The majority had regard to s 43(1) of the AAT Act giving the Tribunal the powers and discretions of the decision-maker when reviewing the decision and to the description by Davies J of the Tribunal’s role being to determine whether “… the decision was the correct or preferable one on the material before …”[51] the Tribunal.  As Kirby J said:

   “… ultimately, it was for the tribunal to reach its own decision upon the relevant material including any new, fresh, additional or different material that had been received by the tribunal as relevant to its decision.  In effect, this was no more than a consequence of the tribunal’s obligation to conduct a true merits review.”[52]

It was also, in his Honour’s view, a consequence of the general obligation placed upon administrative decision-makers to have regard to the best and most current information available.[53]

[51] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60 at 589; 68 cited with approval in Shi v Migration Agents’ Registration Authority[2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 103 ALD 467; 82 ALJR 1147; 48 AAR 345 at [43]-[44]; 300; 398; 477; 1156; 356-357 per Kirby J.

[52] (2008) 248 ALR 390 at 399

[53] (2008) 248 ALR 390 at 400

1. Kirby J also had regard to the nature of the decision as did the other members of the High Court.  He emphasised the need to identify the precise nature and incidents of the decision that is the subject of the review and continued:

   “… [T]he fact that the review contemplated by s 43 of the AAT Act is one addressed to a ‘decision’, inferentially arising under a different federal enactment, makes it necessary in each case to identify the precise nature and incidents of the decision that is the subject of the review.

   Sometimes, it may be inherent in the nature of a particular decision that review of that decision is confined to identified past events.  If, for example, under federal legislation, a pension is payable at fortnightly rests, by reference to particular qualifications that may themselves alter over time, a ‘review’ of an administrative ‘decision’ to grant or refuse such a pension, by reference to statutory qualifications, may necessarily be limited to the facts at the particular time of the decision.”[54]

   [54] (2008) 248 ALR 390 at 400

1. Kirby J approved the approach taken in Jebb as the general approach deriving in particular from the statutory function of substituting one administrative decision for another:

   “         That issue was raised in Jebb v Repatriation Commission[55], another decision of Davies J, but this time in the Federal Court of Australia, deciding an ‘appeal’ from a decision of the Tribunal on a suggested error of law.  In that case, Davies J found that the Tribunal had fallen into error in considering the applicant’s entitlement to certain benefits exclusively by reference to the state of the evidence at a particular time in the past.  In the relevant statutory context, there was no warrant for doing so.  His Honour said[56]:

‘[T]he general approach of the [T]ribunal has been to regard the administrative decision making process as a continuum and to look upon the [T]ribunal’s function as a part of that continuum so that, within the limits of a reconsideration of the decision under review, the [T]ribunal considers the applicant’s entitlement from the date of application, or other proper commencing date, to the date of the [T]ribunal’s decision.  That function was enunciated in Re Tiknaz and Director-General of Social Services[57].  The approach there taken has since been generally adopted.  In the repatriation jurisdiction, it was applied after Banovich^[[58]] in Re Easton and Repatriation Commission[59], where … the [T]ribunal … said^[[60]]:

‘The ambit of a review by the [Tribunal] is necessarily influenced by the ambit of the steps and proceedings that have taken place prior to its review, for the function of the [Tribunal] is to review a decision.  But provided that the matter is within the ambit of its jurisdiction as a review authority, the general practice of the [T]ribunal is to take account of events that have occurred up to the date of the decision.  Indeed, s 43(1) of the [AAT Act so implies].”’

There is thus a general approach deriving in particular from the statutory function of substituting one administrative decision for another.  Nevertheless, the particular nature of the ‘decision’ in question may sometimes, exceptionally, confine the tribunal's attention to the state of the evidence as at a particular time[61].”[62] 

[55] (1988) 80 ALR 329; cf Banovich v Repatriation Commission (1986) 69 ALR 395

[56] (1988) 80 ALR 329 at 333-334

[57] (1981) 4 ALN N44

[58] (1986) 69 ALR 395

[59] (1987) 6 AAR 558

[60] (1987) 6 AAR 558 at 561 referring to Lucas v Repatriation Commission (1986) 69 ALR 415. See also Fletcher v Commissioner of Taxation (1988) 19 FCR 442 at 453.

[61] See also reasons of Hayne and Heydon JJ at [99].

[62] [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 48 AAR 345; 103 ALD 467; 82 ALJR 1147 at [45]-[46]; 301; 401; 357; 478; 1157

1. Kirby J then applied these principles to the review of MARA’s decision:

   “         The nature and incidents of the decision under review in the present case do not support a contention that the review was limited to the particular time in the past when the decision was made by the Authority. The present was not a case where, of its nature, a decision was made falling to be determined by reference to the state of evidence at a particular time. Both the language of s 303 of the Migration Act and its purpose suggest otherwise.

   Section 303 of the Migration Act directs the Authority’s attention, amongst other things, to whether an agent ‘becomes bankrupt’; whether he or she ‘is not a person of integrity’ or ‘otherwise not a fit and proper person’; and whether ‘an individual related by employment to the agent is not a person of integrity’.  Each of these grounds is expressed in the present tense. Necessarily, the circumstances to which each is addressed could be altered by supervening events.  Thus, the language in s 303 of the Migration Act clearly contemplates the possibility that circumstances may change between an initial decision of the Authority and a subsequent decision of the Tribunal, performing the ‘review’ which s 306 of the Migration Act contemplates and for which s 43 of the AAT Act provides ....

   Circumstantial changes may sometimes be adverse to an applicant before the Tribunal.  Given the Tribunal’s powers in certain circumstances to make a decision ‘in substitution for’ a decision of the Tribunal which has been set aside upon review, it would be remarkable if the substituted decision could not take into account evidence of relevant, and even critical, supervening events.  Such events might include the intervention of bankruptcy, or a criminal conviction for an offence of dishonesty of significance for the continued registration of the agent under the Migration Act.

   This reasoning is further strengthened by an appreciation that the fundamental object of the exercise of the Authority’s power to cancel or suspend the registration of an agent under the Migration Act is the protection of the section of the public that deals with migration agents. It is not, as such, the punishment of agents …. This object is best achieved by the Tribunal making its decision upon the most up to date material available to it at the time of its own decision.  It would be impeded if the Tribunal were confined to the facts and circumstances subsisting at the time of the Authority’s original decision weeks, months or even years in the past.

   Moreover, to the extent that the essential function of the Tribunal is to provide a review ‘on the merits’, conducting such a review on the basis of the most up to date evidence available is conformable with the basic objectives of the AAT Act.  In this particular context, the contrary approach, urged by the Authority, would be likely to attract the very criticisms addressed to the law predating that Act in the report of the Commonwealth Administrative Review Committee ….”[63]

   [63] [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 48 AAR 345; 103 ALD 467; 82 ALJR 1147 at [47]-[51]; 301-305; 401-402; 357-358; 478-479; 1157 citations omitted

1. Hayne and Heydon JJ took the same approach as Kirby J saying:

   “         Nothing in the provisions of the Migration Act fixed a particular time as the point at which a migration agent’s fitness to provide immigration assistance was to be assessed.  Unlike some legislation providing for pension entitlements,^[[64]] in which the critical statutory question is whether a criterion was met or not met at a particular date, such as the date of cancellation of entitlements, the provisions of s 303 of the Migration Act contained no temporal element.  It follows that when the Tribunal reviews a decision made under s 303, the question which the Tribunal must consider (is the Tribunal satisfied that the person concerned is not a fit and proper person to give immigration assistance?) is a question which invites attention to the state of affairs as they exist at the time the Tribunal makes its decision. …”[65]

   [64] See, eg, Freeman v Secretary, Department of Social Services (1988) 19 FCR 342; 9 AAR 255

   [65] [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 48 AAR 345; 103 ALD 467; 82 ALJR 1147 at [101]; 315; 413; 369-370; 490; 1165

1. Kiefel J, with whom Crennan J agreed on this point, came to the same conclusion regarding the Tribunal’s ability to have regard to evidence of conduct subsequent to MARA’s decision.  It could have regard to it in so far as it concerned the question under s 303(1)(f) as to Mr Shi’s integrity and fitness to continue as a registered migration agent.[66]  Her Honour’s path to that conclusion is a little different at the outset but converges with it a little later.  Like the majority, Kiefel J placed some emphasis on s 43(1) of the AAT Act.  She began with the principles established by the Full Court of the Federal Court in Drake v Minister for Immigration and Ethnic Affairs[67] saying:

   “         The reasons of the members of the Full Court of the Federal Court in Drake v Minister for Immigration and Ethnic Affairs confirm what is apparent from s 43(1), that the Tribunal reaches its conclusion, as to what is the correct decision, by conducting its own, independent, assessment and determination of the matters necessary to be addressed.[68]  To the contrary of the argument put by the respondent on this appeal, that the Tribunal’s exercise of power is dependent upon the existence of error in the original decision, Smithers J denied that the Tribunal was limited to something of a supervisory role. As his Honour said, the Tribunal is authorised and required to review the actual decision, not the reasons for it.[69]  In considering what is the right decision, the Tribunal must address the same question as the original decision-maker was required to address.[70]  Identifying the question raised by the statute for decision will usually determine the facts which may be taken into account in connection with the decision.  The issue is then one of relevance, determined by reference to the elements in the question, or questions, necessary to be addressed in reaching a decision.  It is not to be confused with the Tribunal’s general procedural powers to obtain evidence. The issue is whether evidence, so obtained, may be taken into account with respect to the specific decision which is the subject of review. 

   Where the decision to be made contains no temporal element, evidence of matters occurring after the original decision may be taken into account by the Tribunal in the process of informing itself.  Cases which state that the Tribunal is not limited to the evidence before the original decision-maker, or available to that person, are to be understood in this light.[71]  It is otherwise where the review to be conducted by the Tribunal is limited to deciding the question by reference to a particular point in time.[72]

   In Freeman, Davies J identified the importance of the nature of the decision under review, in determining what facts the Tribunal might take into account.[73]  A decision had been made to cancel Mrs Freeman’s widow’s pension. The definition of ‘widow’, in the Act providing for the pension, did not include a widow who was living with a man, as his de facto wife.  That circumstance applied to Mrs Freeman at the time of the decision. That was sufficient to disentitle her from receipt of a pension.  The statutory scheme was such that a pension, once cancelled on this ground, could only be reinstated on a further claim being made.[74]  Subsequent to the cancellation decision
   Mrs Freeman’s circumstances changed, such that she again qualified for the pension.  His Honour held the Tribunal to have been correct to limit its consideration to the circumstances existing at the time the decision to cancel was made.  The Tribunal was entitled to take into account all the facts placed before it, but the issue was whether the decision it was reviewing, to cancel the pension, was the correct or preferable decision when it was made.  It was not whether Mrs Freeman had an entitlement to a widow’s pension at the date of the Tribunal’s decision.[75]

   The situation in Freeman was distinguished by Davies J from cases where the matter to be determined is a person’s entitlement to a pension.[76]  Where that was the decision to be reviewed the Tribunal might not be limited to facts existing at a particular time, since the entitlement might be a continuing one.  His Honour did not suggest, by this comparison, that the ambit of the decision to be reviewed was to be determined by a general description of what the decision concerned – a grant or a cancellation of an entitlement. In each case what is entailed in a decision is to be ascertained by reference to the statute providing for it.

   The question which here arose for the Authority under s 303(1), which it answered, was whether it should exercise its powers, under paras (a) to (c) of the sub-section, because the grounds in paras (h) and (f) were established, in particular because the appellant had breached the Code of Conduct.  That part of the decision which comprises the finding, that the ground in para (h) had been made out, was referable to conduct which had occurred to a point in time.  That is the nature of the finding required by the provision.  It follows that the Tribunal was restricted to a consideration of events to that point and not those occurring later, in determining for itself whether there had been non-compliance with the Code.  The appellant accepted as much in his submissions.

   There is another restriction which operates with respect to the evidence the Tribunal may consider as to this ground.  The effect of the restriction appears to have been assumed in argument. The Tribunal does not acquire all the powers of the Authority, but only those necessary to review the decision made by it.[77]  The Authority’s decision concerned particular conduct of the appellant, which it had investigated.  The Tribunal does not have all the Authority’s disciplinary powers, and does not have its investigatory powers for the purposes given by the Migration Act.  The question for the Tribunal is not whether there has been a breach by the appellant of the Code in any respect, but whether those identified by the Authority are established.  It may use its own evidence-gathering powers to further inform itself about those matters, but those powers do not translate to general investigatory powers and cannot be used to ascertain other, inculpatory, conduct.”[78]

   [66] Kiefel J dissented on the second issue i.e. whether the Tribunal had power to issue a caution to the migration agent.

   [67] (1979) 46 FLR 409

   [68] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 40 at 421-422 per

   [69] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 429-430.

   [70] Hospital Benefit Fund of WA Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 234; 16 AAR 566 at 575.

   [71] See, eg, Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419 per Bowen CJ and Deane J; Fletcher v Federal Commissioner of Taxation (1988) 19 FCR 442 at 453; Jebb v Repatriation Commission (1988) 8 AAR 285 at 289-290; Hospital Benefit Fund of WA Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 234; 16 AAR 566 at 575; Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 at 521; 20 AAR 10 at 20-21.

   [72] Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 at 521; 20 AAR 10 at 20-21.

   [73] Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 at 345; 9 AAR 255 at 258.

   [74] As Davies J observed: Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 at 345; 9 AAR 255 at 258.

   [75] Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 at 344; 9 AAR 255 at 258.

   [76] Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 at 345; 9 AAR 255 at 258.

   [77] Fletcher v Federal Commissioner of Taxation (1988) 19 FCR 442 at 452.

   [78] [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 48 AAR 345; 103 ALD 467; 82 ALJR 1147 at [141]-[147]; 328; 424; 379-381; 501; 1173

DIFFERENCES IN APPROACH SINCE SHI v MIGRATION AGENTS REGISTRATION AUTHORITY

1. It seems to me that, in Shi, the High Court has subtly moved from the principles established by earlier cases such as Freeman, Surinakova and the HBF case.  I will begin, though, by noting what they have in common: i.e. that they all start with a common premiss that the Tribunal’s jurisdiction and powers are determined by the legislation conferring that jurisdiction. 

1. After that, the differences arise.  The earlier cases also started from a premiss that, subject to any variation required by the relevant legislation, the task of the Tribunal is to review on their merits those administrative decisions that it is given jurisdiction to review.  The task was explained by

   Bowen CJ and Deane J in Drake. 

   
   

   I have already referred to their Honours’ judgment at [20] above but note their further observation that:

   “         The function of the Tribunal is … an administrative one.  It is to review the administrative decision that is under attack before it.  In that review, the Tribunal is not restricted to consideration of the questions which are relevant to a judicial determination of whether a discretionary power allowed by statute has been validly exercised. …”[79]

   [79] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577; 46 FLR 409 at 68; 589; 419 per Bowen CJ and Deane J

1. It is apparent from both Drake and from the way in which the task was identified in cases such as Freeman, Tiknaz, Jebb, Easton and McGourty and the relevant evidence identified in cases such as Surinakova and the HBF case that, subject to any legislative qualification, the Tribunal was required to address the decision that was addressed by the decision-maker making the decision under review.  There is a difference between this and addressing the issues addressed by the decision-maker, to which I will return.

2. The reason why the Tribunal could have regard to current evidence in an entitlement case of the sort considered in Tiknaz came about because the decision that the decision-maker had to make was whether, at the time of making the decision, the applicant was entitled to a particular benefit.  It was a decision that the decision-maker was required to make on the evidence and material then available.  Therefore, it was a decision that the Tribunal was required to review on the evidence and material then available.  The Tribunal and the decision-maker addressed the same decision.  Its decision would only take effect from the day on which it found entitlement to arise.  That was not necessarily the day on which the decision-maker refused it and, again subject to any legislative modification, could be any day up to and including the date of the Tribunal’s decision.  

1. A cancellation decision of the sort considered in Freeman was of a different sort.  The Tribunal was required to consider whether that was the correct or preferable decision on the day it was made because, only in that way, could it and the decision-maker be addressing the same decision.  If it were said that the Tribunal could look at evidence of later events and matters and decide the issues decided by the decision-maker in light of more limited events and matters, their decisions would be different.  The Tribunal’s decision would be whether cancellation should have occurred at the time of its decision.  The decision-maker’s was whether cancellation should have occurred at the time at which he or she made that decision.  It could well have been the case that the Tribunal and the decision-maker would have made their decisions on different factual bases as the Tribunal was not limited to the evidence and material before the decision-maker.  By limiting the Tribunal to the same decision made by the decision-maker at the same point in time, however, a person could not obtain an advantage by having regard paid to any steps taken to redeem him or herself or to mitigate previous activities during the period of time between the original decision and the Tribunal’s review.  Regard of that sort could be perceived as unfair by those whom circumstances did not favour with a similar period within which to attempt redemption or mitigation.  By limiting the Tribunal to the same decision, difficult questions regarding whether any activities in the time between the original cancellation and any restoration on a different factual basis were or were not authorised would be avoided.

1. Whether they intended to or not, the High Court has, in Shi, changed the Tribunal’s task.  Rather than requiring it to address the decision that was addressed by the decision-maker making the decision under review, it has required it to address the same issues or questions provided, of course, that the legislation does not specify a contrary approach.  Addressing the same issues or questions is very different from addressing the same decision for it immediately removes any temporal link and so any link to the facts as they existed at the time of the original decision.  That, however, appears to be the law since Shi.  In summary, and unless varied by the particular legislation conferring jurisdiction on the Tribunal, the position since Shi has been:

   (1)the decision that the Tribunal must review is determined by reference to the statutory provisions conferring jurisdiction on it;

   (2)the Tribunal will address the same issues or questions as those addressed by the original decision-maker;

   (3)unless there is a temporal element in the legislation requiring a contrary conclusion, the Tribunal reviews a decision as at the date it conducts that review and reaches its own decision;

   (4)the Tribunal may have regard to evidence on issues and matters up to the date of its decision on review; and

   (5)the task of the Tribunal:

   (a)is to reach a decision that is the correct or preferable decision i.e. the decision that is correct according to the law and on the evidence and, where more than one decision meets that description, the decision that is preferable having regard to the limits imposed by the legislation under which the decision is made and the facts of the case; and

   (b)is not to decide whether the decision under review is itself the correct or preferable decision.

THE TRIBUNAL’S JURISDICTION TO REVIEW THE DEPARTMENT’S DECISION

1. I have considered whether the Tribunal must consider all documents that come within Mr Lobo’s request at the date of its decision or at an earlier date in light of the principles in Shi.  There is one significant difference between the two.  A significant matter in issue in Shi concerned the evidence to which the Tribunal might have regard.  That is not in issue in this case.  What is in issue is the scope of the documents that the Tribunal must consider and so the scope of the request.  Is it to be treated as drawing into itself all documents of the sort it seeks regardless of when they came into the Department’s possession or is it to be limited by reference to a particular event such as the date the request was made or the date of the Department’s decision on that request? 

The documents encompassed within the request for access

1. I have started with every person’s legally enforceable right to obtain access in accordance with the FOI Act to a document of an agency or an official document of a Minister.[80]  A person who wishes to exercise that right to obtain access must make a request in accordance with s 15.  Once a person has made that request and paid any charge required under the regulations to be paid before access is granted, the person shall be given access to the document in accordance with the FOI Act.[81]  Part III of the FOI Act sets out the procedural steps that the agency or Minister[82] must follow in handling the request and granting access to documents and I will refer to some of them.

   [80] FOI Act, s 11(1).  The right also extends to an “official document of a Minister” which is defined in terms consistent with that of a document of an agency: FOI Act ss 15(1)(b) and s 4(1).

   [81] FOI Act, s 18

   [82] I will refer only to the agency but the Minister must follow the same procedures.

1. A “document of an agency” means “a document in the possession of an agency”.[83]  Section 16 of the FOI Act provides for the transfer of requests.  Transfer must occur in two circumstances and may occur in two others.  Taking the discretionary transfers first, the other agency must agree to the transfer.  One situation in which it may occur arises if the subject matter of the document is more closely connected with the functions of the other agency than with those of the agency to whom the request was made.[84]  If the request is transferred in this circumstance, the agency making the transfer must inform the person making the request and must, if necessary, transfer the document to the other agency.[85]  The other occurs if the document is not in the possession of the agency to which the request is made but is, to the knowledge of the agency, in the possession of another.[86]

   [83] FOI Act, s 4(1)

   [84] FOI Act, s 16(1)(b)

   [85] FOI Act, s 16(4)

   [86] FOI Act, s 16(1)(a)

1. Mandatory transfer of a request is required if the circumstances in
   ss 16(2) or (3) arise.  They will arise if a request is made for a document that originated with, or has been received from a body or person specified in Part I of Schedule 2[87] or from an agency specified in Part II of Schedule 2[88] and if the document is more closely connected with the functions of that body or person[89] or of that agency in relation to documents in respect of which the agency is exempt than with the functions of the agency to which the request was made.[90] 

   
   

   [87] FOI Act, s 16(2)(a)

   [88] FOI Act, s 16(3)(a)

   [89] FOI Act, s 16(2)(b)

   [90] FOI Act, s 16(3)(b)

1. Should it be the case that a request seeks more than one document and one or more comes within ss 16(1), (2) or (3), the transfer provisions apply as if separate requests had been made for the documents coming within those provisions.[91]  The transfer provisions clearly contemplate that the decision will be made in respect of documents then in the possession of the agency. 

   [91] FOI Act, s 16(3A)

1. Particular provision is made to bring into the scope of a request documents not in the possession of an agency when the request is made.  While the definition of a “document” has been cast broadly enough to include material or information stored on a computer, the FOI Act provides that, where a request seeks information of that kind, the person does not appear to seek a computer tape or computer disk containing the information and the agency could produce a written document containing that information:

   “the agency shall deal with the request as if it were a request for access to a written document so produced and containing that information and, for that purpose, this Act applies as if the agency had such a document in its possession.”[92]

   [92] FOI Act, s 17

1. The procedures that an agency must follow also suggest that there are limits upon the documents to which an agency must have regard.  These procedures require it to consult with certain persons or entities where the documents to which access is sought under the FOI Act relate to certain classes of documents.  These are documents likely to affect Commonwealth-State relations, documents relating to business affairs and documents containing personal information.  The procedures are set out in ss 26A, 27 and 27A respectively and are to similar effect.

2. Taking s 27A as an example, it applies if a request is received in respect of a document containing personal information about a person and it appears that the person might reasonably wish to contend that the document, so far as it contains that information, is an exempt document under s 41.[93] A decision must not be made to grant access to that part of the document unless, where it is reasonably practicable to do so having regard to all of the circumstances, the agency has given the person a reasonable opportunity to make submissions in support of the contention that the document is exempt under s 41 to the extent that it contains that information and the person making the decision has had regard to any submissions so made.[94]  Section 27(1A) sets out the matters to which the “officer, Minister or reviewer”
   (i.e. “a person … reviewing under s 54 a decision refusing the request”[95]) must have regard in deciding whether the person might reasonably wish to make that contention.

   
   

   [93] FOI Act, s 41(1AA)

   [94] FOI Act, s 41(1)

   [95] FOI Act, s 27(1AA)(b)

1. Where, after any submissions have been made, it is decided that a document is not exempt under s 41, access must not be given to the document so far as it contains personal information, unless:

   “(i)      the time for an application to the Tribunal in accordance with section 59A by the person who made the submissions has expired and such an application (other than an application that has subsequently been withdrawn) has not been made; or

   (ia)such an application has been made but the Tribunal has dismissed the application under section 42A of the Administrative Appeals Tribunal Act 1975; or

   (ii)such an application has been made and the Tribunal has confirmed the decision.”[96]

   [96] FOI Act, s 27A(2)(b)

1. It is clear that this section is intended to follow a particular document or particular documents through the steps set out in s 27A from the initial identification of a document as coming within the terms of the request, to the decision in relation to the request, to internal review under s 54 by an applicant, who is dissatisfied with a decision refusing access to the document, and finally to review by the Tribunal if the person whose personal information is contained in the document should apply for review of a decision granting access to it.  The procedure set out in
   s 27A does not contemplate that there will be a search conducted at each stage of that procedure for documents that have come into the agency’s possession since the previous stage.

   
   

1. Section 29, which applies to charges, also suggests that a search for newly acquired documents is not undertaken from time to time but is limited to those in the possession of an agency at an earlier time.  If an agency decides that an applicant is liable to pay a charge, other than an application fee, in respect of a request for access to a document, or the provision of access to a document, it must give the applicant a written notice.  As well as notifying the applicant that he, she or it is liable to pay a charge and other information, it must give notice of the agency’s preliminary assessment of the charge and the basis on which it is made.[97] 

   [97] FOI Act, ss 29(1)(a) and (b)

1. The notice must also advise the applicant:

   “that the applicant must, within the period of 30 days, or such further period as the agency or the Minister allows, after the notice was given, notify the agency or Minister in writing:

   (i)of the applicant’s agreement to pay the charge; or

   (ii)if the applicant contends that the charge has been wrongly assessed, or should be reduced or not imposed, or both – that the applicant so contends, giving the applicant’s reasons for so contending; or

   (iii)that the applicant withdraws the request for access to the document concerned; …”[98]

   [98] FOI Act, s 29(1)(f)

1. The agency must not impose a charge in respect of a request for access to a document or the provision of access to a document until either the applicant has notified it in the manner mentioned in s 29(1)(f) or the 30 day period has ended.[99]  If the person does not notify of acceptance within that time period, the applicant is taken to have withdrawn the request.[100]  When deciding whether to reduce or not impose a charge, the agency must take into account “whether the giving of access to the document in question is in the general public interest or in the interest of a substantial section of the public.”[101]  Again, the focus would seem to be on the documents identified as coming within the ambit of a request at the time that the preliminary assessment of charges was made and not at some later time such as when the decision was made.  That this is so would seem to be confirmed by the provision made for internal review under s 54 and ultimately review by the Tribunal under s 55.  Provision is not made for a changing assessment of charges as further documents come into the agency’s possession.

   [99] FOI Act, s 29(3)

   [100] FOI Act, s 29(2)

   [101] FOI Act, s 29(5)(b)

1. The Freedom of Information (Fees and Charges) Regulations (Charges Regulations) make provision for, or in relation to, the making of charges.  Regulation 9 provides for adjustments of assessments and rr 9(1) and (2) make it clear that assessments and so adjustments may be made well before the searches for the documents are actually conducted, before decisions on the request are made and before an agency is ready to provide access.  Regulations 9(1) and (2) provide:

   “(1)      Where, at the time (in this subregulation referred to as the ‘relevant time’) that an agency or a Minister proposes to notify an applicant under section 29 of the Act that he is liable to pay a charge in respect of the request that he has made for access to a document, the agency or Minister has not taken any or all of the steps necessary to enable the agency or Minister to make a decision on the request, the agency or Minister may fix, as the amount of the charge, such amount as would be the amount ascertained in accordance with the Schedule in respect of the charge if, at the relevant time, all steps that would, in the opinion of the agency or Minister, be necessary to enable a decision to be made on the request had been taken by the agency or Minister.

   (2) Where, at the time (in this subregulation referred to as the ‘relevant time’) that an agency or a Minister proposes to notify an applicant under section 29 of the Act that he is liable to pay a charge (other than a charge in relation to which subregulation (3) applies) in respect of the provision of access to a document, the agency or Minister has not taken any or all of the steps necessary to enable the applicant to be given access to the document, the agency or Minister may fix, as the amount of the charge, such amount as would be the amount ascertained in accordance with the Schedule in respect of the charge if, at the relevant time, all steps that are, or would, in the opinion of the agency or Minister, be, necessary to enable the applicant to be given access to the document had been taken by the agency or Minister.

   (3)-(5)…”

In most instances:

“… where an applicant is liable to pay a charge in respect of a request for access to a document or in respect of the provision of access to the document, the charge shall be paid to the relevant agency or the relevant Minister before access is granted to the document.”[102]

Regulations 12, 13 and 14 are concerned with the payment of deposits. 

[102] Charges Regulations, r 11(1)

1. The charges applicable in respect of a request for access to a document are those set out in Part I of the Schedule to the Charges Regulations.[103]  Those applicable in respect of the provision of access to a document to which a request relates are those set out in Part II of that Schedule.[104]  Item 2 of Part I of the Schedule, for example, provides:

   “Where the request relates to a document other than a document in relation to which a charge is applicable under item 2A or 3 — a charge in respect of the time spent by the relevant agency or the relevant Minister in searching for or retrieving the document … $15.00 per hour”.

No provision is made in the Charges Regulations for charges for further searches for further documents that have, or might have, come into the agency’s possession at a subsequent time.  The same is true of the other charges set out in the Schedule.

[103] Charges Regulations, r 4(a)

[104] Charges Regulations, r 4(b)

1. Section 24 adds to the view that an agency is to have regard to the documents that are in its possession at the time it receives the request and not at some later stage.  That section permits an agency to refuse to grant access to documents in accordance with a request and without processing the request if it is satisfied that the work involved in processing the request would substantially and unreasonably divert its resources from its other operations.[105]  Among the matters to which the agency must have regard in deciding to refuse access under s 24 are:

   [105] FOI Act, s 24(1)(a)

   “… the resources that would have to be used:

   (a)in identifying, locating or collating the documents within the filing system of the agency …; or

   (b)in deciding whether to grant, refuse or defer access to documents to which the request relates, or to grant access to edited copies of such documents, including resources that would have to be used:

   (i)in examining the documents; or

   (ii)in consulting with any person or body in relation to the request; or

   (c)in making a copy, or an edited copy, of the documents; or

   (d)in notifying any interim or final decision on the request.”[106]

Considerations of this sort are directed to what is and not what may be in the future.  They do not support the proposition that the request should be read as capturing all future documents while it remains undecided.

[106] FOI Act, s 24(2)

1. These are some of the procedural steps that are set out in Part III.  Having regard to them as a whole, it seems to me that their focus is upon the documents that meet the request when that request is made rather than at a later stage, including the decision stage.  The charges are assessed by reference to that point for they begin with the searches, extending through to the decision regarding access and finishing with the provision of access.  The consultative processes that must be undertaken in relation to documents likely to affect Commonwealth-State relations, documents relating to business affairs and documents containing personal information are directed to documents and not directed to documents that come into an agency’s possession at some later stage.  Workload considerations are based on what is and not on what may be.

1. I do not think that a request expressed in terms of documents in the agency’s possession at the time it was made and coming into its possession at any subsequent stage alters my conclusion.  For the reasons I have given, the FOI Act and the right it creates and the procedures it establishes do not cater for such a request.  The legally enforceable right that every person has to obtain access under the FOI Act is a limited right.  It is limited by the terms of the FOI Act itself and it is a right to obtain access to a document of an agency or an official document of a Minister.  Until a person makes a request in accordance with s 15(1), that right remains an inchoate right or a right conditional on the making of that request.  It then becomes a right in fact but its limits are drawn by the FOI Act and I have sketched some of those limits.  Its limits are not determined by the way in which the request is expressed.  An agency may choose to give access to more than it is required to under the FOI Act.  Parliament intended only that the FOI Act set the minimum to which a person has a right to have access.  If an agency decides to give access to a document, nothing in the FOI Act prevents it from doing so.  It may be prevented by secrecy provisions in other pieces of legislation but, although they are given effect to by s 38 if a request is made under the FOI Act, the FOI Act does not regulate the circumstances in which they come into effect.

Can the Tribunal have regard to documents subsequently coming into the agency’s possession?

1. Section

   55 of the FOI Act provides that, in the circumstances of this case, an application may be made to the Tribunal for “… review of … a decision refusing to grant access to a document in accordance with a request …”[107] and of
   “a decision granting access to a document but not granting, in accordance with a request, access to all documents to which the request relates”.[108]   That right is modified by s 55(2) where a person is or has been entitled to apply under s 54 for review of the decision and by s 56 which applies when an agency has not made a decision in relation to a request at all.  Section 54 provides for review of a decision made in relation to a request and that review is conducted internally within the agency concerned.  Where a person has a right under s 54(2), he or she may only make an application to the Tribunal in respect of the decision made under s 54 if a decision is in fact made under that section.  If no decision is made under s 54 within 30 days of an application for review, the person may apply to the Tribunal for review of the original decision.[109]  If no decision was ever made in relation to the request at all,
   s 56 provides that the application to the Tribunal may be made for review of a decision which is deemed to have been made on the last day of the periods referred to in ss 15(5)(b) and (6) and which refuses to grant access to the document.[110]

   
   
   

   [107] FOI Act, s 55(1)(a)

   [108] FOI Act, s 55(1)(aa)

   [109] FOI Act, s 55(3)

   [110] FOI Act, s 56(1)

1. It follows that the Tribunal is reviewing either a decision deemed to have been made by an agency refusing access or a decision that has actually been made and been the subject of internal review.  The Tribunal is, therefore, limited to the review of that decision.  For the reasons I have given, the agency was required to make that decision in relation to documents that were in the possession of the agency and that were of the type described in the request at the time the request was made.  At the same time, it could choose to decide whether documents that subsequently came into its possession also met that description and whether it would give access to them.  In this case, for example, the Department has gone beyond the date of the request: 14 November 2008.  The Schedule of Documents it has lodged in the Tribunal shows some documents dated in January 2009 but it is clear from the Department’s letter to Ms Jockel dated 22 October 2009 that it had understood its obligation to extend only to those documents coming within the request on the date it was made i.e. 14 November 2008. 

1. The decision that the Tribunal is given power to review is a decision that is linked back to the request.  It is, for example, a decision “refusing to grant access to a document in accordance with a request”[111] and a decision “purporting to grant, in accordance with a request, access to all documents to which the request relates but not actually granting that access”.[112]  Given the ordinary meaning of the expression “in accordance with”, this means that the Tribunal has the power to review a decision refusing to grant access in agreement with[113] or in conformity with a request.[114]  It has power to review a decision purporting to grant, but not actually granting, in agreement or conformity with a request, access to documents.  The Tribunal’s power is linked directly back to the request.  When the Tribunal is given power to review a decision to defer provision of access, s 55(1)(b) does not need to link the power to the request for the way in which power is conferred assumes that a decision has been made to grant access in accordance with a request; the only matter in issue is the timing of that access.

   [111] FOI Act, s 55(1)(a)

   [112] FOI Act, s 55(1)(ab)

   [113] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

   [114] Re Federated Furnishing Trade Society of Australasia [1993] FCA 62; (1993) 41 FCR 151; 113 ALR 137 at [18]; 158; 145

1. The link that is made between the Tribunal’s power to review and the request means that the Tribunal’s power to review is limited to the matters to which the agency could have regard and that were relevant in arriving at that decision.  Those issues may include consideration of whether the agency has taken all reasonable steps to find documents coming within the request[115] but, just as the agency’s obligation is confined to documents in its possession at the time of the request, the Tribunal’s power is similarly confined. 

   [115] It may do so quite apart from s 24A of the FOI Act which authorises an agency to refuse a request for access to a document if all reasonable steps have been taken to find it and it is satisfied that it is either in its possession and cannot be found or does not exist.

1. Unlike a claim to a social security benefit, a request does not represent the start of a continuum that enables the Tribunal to determine entitlement to documents regardless of when they came into the agency’s possession.  The Social Security Act 1991 sets out the criteria for particular benefits and cases such as Jebb and Tiknaz illustrate the Tribunal’s power to find that a claimant for a benefit may demonstrate that he or she satisfies those criteria at any point on the continuum between the lodgement of the claim and the Tribunal’s review of the decision.  The criteria remain static during that period but whether the person meets those criteria depends on their personal circumstances.  What those personal circumstances are is
   a matter of evidence. 

   
   

1. The FOI Act establishes the framework in which a right to access exists but it does not establish what that right is in any particular instance.  The substance of the right is only established when a request is made in accordance with
   s 15(1).  Although its boundaries may be the subject of argument and need to be identified, that is the criterion that remains static throughout the review process.  That criterion equates with the criteria that must be met in order to obtain a social security benefit.  Whether the agency fulfils its correlative duty to provide access in accordance with the FOI Act depends on matters pertaining to the particular request and agency to which it is made.  Those matters are the subject of evidence.  They include workload considerations and exemption provisions.  Like the personal circumstances of a claimant for a social security benefit, those are matters that may change.  A claim that a document is exempt, for example, may no longer be sustainable when the decision is reviewed because of changing events.  A document thought to have been mislaid might have been found.  An announcement might have been made and deferment of access under s 21 might no longer be justifiable.

   
   

The relevance of public interest

1. Ms Jockel referred to the public interest in Mr Lobo’s having access to material which is both adverse and beneficial to him so that the can clear his name regarding the investigations into him and the SICB. He should be permitted, she submitted, to have the balance of the documents which have come into existence since 14 November 2008 so that he may test the assertions against him and respond to them appropriately. To do otherwise, would undermine the intent of the FOI Act which is disclosed in s 3 and in the explanatory memorandum accompanying the Freedom of Information Amendment (Reform) Act 2010. 

1. As those amendments will not come into force until immediately after 1 November 2010, I have had regard to the objects in s 3 as it is currently in operation and particularly to s 3(1)(b), which provides:

   “The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by:

   (a)…

   (b)creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; …

   (c)…”

1. Although notions of public interest would seem to be inherent in the creation of a right of access, express mention is made of the need to limit that right by reference to the protection of essential public interests. Section 3 cannot be relied upon to extend or diminish the right that is created elsewhere in the FOI Act. Indeed, it is clear from s 11(2) that individual interests in gaining access are not relevant in determining a person’s right of access. That section provides that “Subject to this Act, a person’s right of access is not affected by … any reasons the person gives for seeking access …”.[116]  Therefore, Mr Lobo’s reasons for seeking access to documents to clear his name cannot be taken into account. 

   [116] FOI Act, s 11(2)(a)

1. The FOI Act may be used as a tool by a person such as Mr Lobo but it is a tool that is shaped by the FOI Act for its own purposes and that is necessarily limited by that legislation.  There may be other tools that are available to Mr Lobo or that become available to him and that are more suited to his needs.  If, for example, he were to be come engaged in a civil suit with the Department in a court, discovery is a tool, which can be fashioned to the purposes of the particular civil suit and which is not restricted by many of the considerations that underpin the exemption provisions in Part IV of the FOI Act.

DECISION

1. For the reasons I have given, I have decided that:

   the Tribunal has jurisdiction to review the respondent’s decision or decisions made in relation to a request made on 14 November 2008 under the Freedom of Information Act 1982 in respect of documents coming within the ambit of the request up to and including 14 November 2008.

I certify that the sixty eight 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  20 May 2010

Date of Decision  6 August 2010

Solicitor for the Applicant  Ms M Jockel

Russell Kennedy

Solicitor for the Respondent  Ms M Gangemi

Australian Government Solicitor

[1984] AATA 249; (1984) 54 ALR 313; 6 ALD 112; Davies J, President, Sir Ernest Coates and
Mr R A Sinclair, Members

[1985] AATA 350; (1985) 9 ALN N65; 4 AAR 220 (Deputy President Todd, Dr Renouf and
Mr Stevens, Members)

Bowen CJ and Deane J; at 429-430 per Smithers J; and see Nevistic v Minister for Immigration and Ethnic Affairs (1981) 51 FLR 325 at 336 per Deane J.