Singh and Secretary, Department of Home Affairs (Freedom of information) - [2025] ARTA 489

Singh and Secretary, Department of Home Affairs (Freedom of information) [2025] ARTA 489 (24 April 2025)
Applicant:Pravindra Kumar Singh
Respondent: Secretary, Department of Home Affairs
Tribunal Number: 2023/8295
Tribunal:Senior Member G McCarthy
Place:Sydney
Date:24 April 2025

Decision:The decision under review is varied as follows:

Documents 1, 2 and 3 are released in full after redaction of all personal information concerning departmental staff, including but not limited to names, email addresses and telephone numbers.
……[SGD]………………
Senior Member G McCarthy
Applicant:Pravindra Kumar Singh
Respondent: Secretary, Department of Home Affairs
Tribunal Number: 2023/8299
Tribunal:Senior Member G McCarthy
Place:Sydney
Date:24 April 2025

Decision:The decision under review is varied as follows:
i.Document 1 is released in full.

ii.Additional document 7, being the job description of the delegated decision-maker who decided the Applicant’s application for a partner visa by letter dated 17 November 2022, is released in full.

………[SGD]………………
Senior Member G McCarthy
CATCHWORDSFREEDOM OF INFORMATION – review of two decisions to refuse access to documents related to refusal of a partner visa – claim that documents are conditionally exempt under ss 42E and 42F of the Freedom of Information Act 1982 – whether disclosure of documents would have a substantial adverse effect on the Management of personnel at the Department of Home Affairs – whether disclosure would involve unreasonable disclosure of personal information – whether disclosure is, on balance, contrary to the public interest – first decision varied to require release of names of third parties in documents previously provided by the Applicant to the Respondent – second decision varied to require release of Respondent’s draft decision record and job description of the delegated decision-maker – decisions otherwise affirmed
LEGISLATION
Freedom of Information Act 1982 ss 4, 9A, 11A, 11B, 15AC, 22, 24A, 26, 42E, 42F, 47, 53A, 54L, 54W, 55G, 57A
CASES
Allied Mills Industries v Trade Practices Commission (1981) 34 ALR 105
ABK v Commonwealth Ombudsman [2022] AICmr 44
Attorney General’s Department v Cockcroft (1986) 10 FCR 180
Patrick v Attorney-General [2024] FCA 268
Secretary, Department of Health and Ageing v iNova Pharmaceuticals (Australia) Pty Ltd [2010] FCA 1442
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6
SECONDARY MATERIALS
Guidelines issued by the Information Commissioner under s 93A of the Freedom of Information Act 1982
REASONS FOR DECISION

These reasons concerned two applications for review of two decisions made by the Respondent in response to two requests for access to documents pursuant to the Freedom of Information Act 1982 (Cth) (the Act). I heard the applications heard concurrently.
The first request was made by the Applicant.[1] The second request was made by the Applicant and his partner, Ms Boto.[2] The two applications for review were made by the Applicant only. Ms Boto attended the hearing with the Applicant.
[1] 8295, T documents, 4/14
[2] 8299, T documents 4/21
At hearing, a question arose as to whether Ms Boto was, or should be treated as, also an applicant. The Applicant relied on their joint statement dated 28 June 2024, signed by them both (the joint statement)[3] together with eight attachments to it.[4] The Applicant agreed not to press his claim that Ms Boto was also an applicant once it was clear he could confer with Ms Boto to ensure her viewpoint could be put forward regarding the applications for review and that her not being an applicant did not hinder the tender of their joint statement. It and the eight attachments to it were tendered without objection.[5]
[3] Exhibit A1
[4] Exhibit A2
[5] The Applicant also tendered (without objection) a deed of release in relation to release by the Commonwealth of personal information regarding the Applicant to a former representative of the Applicant, and a medical certificate from a psychologist regarding Ms Boto’s mental health. These attachments became Exhibit A3, but I did not consider them relevant to my review of the decisions under review
The joint statement details the Applicant’s motivation for making the first and second requests.
The first request sought copies of all information held on the Respondent’s file relating to the Applicant’s partner visa application. The Applicant submitted the requested documents under the first request would show, among other things, the Respondent and the Commonwealth Ombudsman “colluded to cover up various wrongs”[6] in their dealings with his application.
[6] Applicant’s joint statement at [2]
The second request sought documents concerning a person identified as “Ran”, a delegate of the Minister, who made a decision on 17 November 2022 to refuse the Applicant’s application for a partner visa.
The joint statement details the Applicant’s and Ms Boto’s distress caused by the decision, in particular the delegate’s contention by way of a closing remark that the Applicant entered into the relationship for visa purposes only, and annexes medical evidence in support. The joint statement notes the Applicant applied to the Administrative Appeals Tribunal (the AAT) for review of the decision to refuse the partner visa and states that on 29 March 2023 the AAT “allowed our appeal”.
I was provided with a copy of AAT’s decision record dated 29 March 2023. It notes the AAT was considering an application for review of the delegate’s decision to refuse to grant the Applicant’s application for a partner visa. It records the AAT’s decision to remit the Applicant’s application for a partner visa for further consideration, with the direction that the Applicant met stated criteria for a Subclass 820 (Partner) visa.
The AAT’s decision record states:
The Tribunal has considered the documentary and photographic evidence submitted with the application and the significant additional documentary evidence that has been submitted to the Tribunal. The Tribunal has also had the benefit of the oral evidence of the applicant, the sponsor and three witnesses. The Tribunal found the applicant, the sponsor and witnesses to be genuine and credible who presented detailed and consistent evidence during the hearing.[7]
[7] Case 2217791, Decision record at [12]
The AAT concluded–
The Tribunal is satisfied that at the time of application the applicant and sponsor had a mutual commitment to a shared life as de facto partners to the exclusion of all others, that their relationship is genuine and continuing and that they do not live separately and apart on a permanent basis.[8]
[8] Case 2217791, Decision record at [35]
In his first request giving rise to his application in proceeding 2023/8295, the Applicant requested the following documents:
Copies of all information held by DHA on my Australian Immigration file relating to my partner visa application 820 from June 2019 up to and including 30 June 2022, including BUPA medical assessment.
In their joint statement, the Applicant and Ms Boto contended -
The documents we seek in these proceedings will show or prove that the Respondent, his officials including Ran and others have engaged in misconduct, improper or unlawful conduct. …
We need the documents to take legal action against the Respondent or seek some sort of inquiry into the conduct of the Respondent and his officials in their dealings with us.[9]
[9] Applicant’s joint statement at [33] and [35]
In the second request giving rise to his application in proceeding 2023/8299, the Applicant (and Ms Boto) requested the following documents:
1.Copies of all information provided by me that Ran took into consideration in making his/her decision, including advice received from senior departmental offices and third parties, draft copies of the decision and subsequent changes.
2.Copies of all departmental policies/procedures/guidelines/directives that Ran took into consideration in making his/her decision.
3.Copy of the delegation authority of the secretary/minister authorising Ran to decide my application as the delegate.
4.Full name of Ran and his/her current APS employment classification.
5.Copies of Ran’s past and current job descriptions.
6.Copy of Ran’s Australian citizenship certificate.
7.Information showing how many visa applications Ran decided since being employed by DHA up till 17/11/22 inclusive.
8.Of the visa decisions referred to in 7 above, provide information showing the classes of visas and their subclasses.
9.Of the visa decisions referred to in 8 above, how many applications Ran approved?
10.Of the visa decisions referred to in 8 above, how many applications Ran declined?
11.Of the visa decisions referred to in 9 above, what were the nationalities of the visa applicants?
12.Of the visa decisions referred to in 10 above, what were the nationalities of the visa applicants?
13.Of the visa decisions referred to in 10 above, how many were appealed to the AAT?
14.Of the visa decisions referred to in 10 above, how many were overturned by the AAT?
15.Copies of information showing how many partner visas in class 820 and 801 did Ran decline on the ground that Ran did not believe the relationship was genuine and “the relationship was entered into for visa purposes only” since the time Ran was employed by DHA up till 17/11/22.
16.Copies of information showing reasons why my application was processed/decided by the Shanghai office of DHA.
17.Copies of information showing any disciplinary action taken against Ran since his/her employment with the APS including his employment with the DHA.
18.Copies of any information showing any complaints (conduct or service) made against Ran by any visa applicants.
19.Copies of performance appraisal reports of Ran since his employment with the APS and his/her current employment with the DHA.
20.Copies of all qualifications held by Ran since his/her employment in the APS and his/her current employment with the DHA.
The Applicant’s first request was initially deemed to be refused pursuant to s 15AC of the Act because the Department did not make a decision within the statutory timeframe prescribed under the Act.[10] However, consequent on an application for internal review, on 22 August 2022 a delegate of the Respondent made a revised decision pursuant to s 55G of the Act to release all the requested documents subject to redaction of personal information including names, telephone numbers and email addresses of third parties named in documents provided by the Applicant and of departmental staff including contractors (the first decision).[11]
[10] 8295, T12/53
[11] 8295, T12/55
The documents released comprised three documents in the form of three departmental files.[12] The redacted information was claimed to be exempt or conditionally exempt from disclosure on three grounds:
(i)With reliance on s 22 of the Act, the information was irrelevant to the scope of the request.
(ii)With reliance on s 47E(d) of the Act, disclosure would have a substantial adverse effect on the proper and efficient conduct of the Department’s operations.
(iii)With reliance on s 47F of the Act, disclosure of personal information of an individual who is not the Applicant would constitute an unreasonable disclosure of personal information.
[12] 8295, T12/55
Having found the personal information was conditionally exempt under ss 47E(d) and 47F, the delegate decided the information should not be provided pursuant to s 11A(5) because access would, on balance, be contrary to the public interest.
Pursuant to s 53A of the Act, the first decision constituted an access refusal decision, as defined, because access was not given in accordance with the request by reason of the redacted personal information.
Pursuant to s 54L(2) of the Act, the first decision (being an access refusal decision) constituted an IC reviewable decision. Accordingly, pursuant to s 54L(1) of the Act, the Applicant was able to apply to the Information Commissioner for review of the first decision. However, pursuant to s 54W(b) of the Act, the Information Commissioner was entitled to decide not to undertake an IC review if satisfied “that the interests of the administration of [the Act] make it desirable that the IC reviewable decision be considered by the Tribunal”. At the request of the Applicant,[13] by letter dated 24 October 2023 the Information Commissioner decided not to undertake an IC review of the Respondent’s decision not to provide him with documents in accordance with the Applicant’s request.[14]
[13] 8295, T 2/5
[14] 8295, T 2/4
Pursuant to s 57A(1) of the Act, by reason of the Information Commissioner deciding not to conduct the IC review, the Applicant was entitled to apply to the AAT (at that time) for review of the IC reviewable decision (meaning the Respondent’s decision made on 22 August 2022).
The Applicant did not do so. In his application in proceeding 8295, the Applicant applied for review of the Information Commissioner’s decision dated 24 October 2023. However, it was apparent from all the subsequent documentation that the Applicant intended to apply for review of the Respondent’s decision made on 22 August 2022 and that the Respondent understood this to be so. On that basis, and with the agreement of the Respondent, I gave the Applicant leave instead to seek review of the first decision and to press his claim that the documents should be provided without the redactions.
The Applicant’s second request was initially deemed to be refused pursuant to s 15AC of the Act because the Department did not make a decision within the statutory timeframe prescribed under the Act.[15] However, consequent on an application for internal review, on 27 June 2023 a delegate of the Respondent made a revised decision that some but not all of the requested documents be released as detailed below (the second decision).[16]
[15] 8299, T15/44
[16] 8299, T 15/43
The Applicant advised the Information Commissioner of his wish that the Commissioner review the second decision. However, consistent with the first decision, pursuant to s 54W of the Act, the Commissioner decided not to do so because the interests of the administration of the Act made it desirable that the second decision be reviewed instead by the AAT.
Review of the first decision
At the request of the Applicant, the Respondent presented her case first and so I deal with the arguments of the parties in that order.
The Respondent did not press her claim that any of the third-party information in documents previously provided by the Applicant to the Respondent was exempt from production. However, she maintained her claim that the personal information concerning the Department’s staff including their names and contact details is conditionally exempt from disclosure pursuant to s 47E(c) (rather than s 47E(d) relied on by the decision-maker), and s 47F. She maintained her claim that to release the conditionally exempt information would, on balance, be contrary to the public interest and therefore was lawfully redacted from the documents released. The Respondent did not press her claim pursuant to s 22.
Sections 47E states:
Public interest conditional exemptions--certain operations of agencies
A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:
(a) prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency;
(b) prejudice the attainment of the objects of particular tests, examinations or audits conducted or to be conducted by an agency;
(c) have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency;
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
Section 47F relevantly states:
Public interest conditional exemptions--personal privacy
General rule
(1)  A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
(2)  In determining whether the disclosure of the document would involve the unreasonable disclosure of personal information, an agency or Minister must have regard to the following matters:
(a)  the extent to which the information is well known;
(b)  whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document;
(c)  the availability of the information from publicly accessible sources;
(d)  any other matters that the agency or Minister considers relevant.
..
Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
Section 11A, referred to in the notes to ss 47E and 47F, relevantly states:
Access to documents on request
Scope
(1) This section applies if:
(a) a request is made by a person, in accordance with subsection 15(2), to an agency or Minister for access to:
(i) a document of the agency; or
(ii) an official document of the Minister; and
(b) any charge that, under the regulations, is required to be paid before access is given has been paid.
(2) ..
..
Mandatory access--general rule
(3) The agency or Minister must give the person access to the document in accordance with this Act, subject to this section.
Exemptions and conditional exemptions
(4) The agency or Minister is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document.
Note: Access may be given to an exempt document apart from under this Act, whether or not in response to a request (see section 3A (objects--information or documents otherwise accessible)).
(5) The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.
Note 1: Division 3 of Part IV provides for when a document is conditionally exempt.
Note 2: A conditionally exempt document is an exempt document if access to the document would, on balance, be contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)).
Note 3: Section 11B deals with when it is contrary to the public interest to give a person access to the document.
Section 11B relevantly states:
Scope
(1) This section applies for the purposes of working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under subsection 11A(5).
(2) This section does not limit subsection 11A(5).
(3) ..
(4) ..
(5) In working out whether access to the document would, on balance, be contrary to the public interest, an agency or Minister must have regard to any guidelines issued by the Information Commissioner for the purposes of this subsection under section 93A.
With reference to s 47E(c), the Respondent relied on the evidence of Ms Brooks, the Respondent’s Director, Freedom of Information section, in her affidavit affirmed 11 June 2024[17] which was tendered without objection. Ms Brooks was not required for cross examination.
[17] Exhibit R1
Ms Brooks gave evidence that release of the personal information could reasonably be expected to have a substantial adverse impact upon the ability of the Department to attract, recruit and/or retain staff in circumstances where, if the Department were to routinely release personal or employment information about its employees, this could be expected to undermine employee confidence in the Department in managing or assessing its staff.[18]
[18] Brooks affidavit at [7.8]

The Respondent also relied on Ms Brooks’ evidence about the risks of harm to staff arising from the release of information which could identify its officers and contractors. Ms Brooks gave examples of abuse of staff, personally directed hate email to staff and threatening notes in private residential letterboxes from disaffected visa applicants that was made possible because the visa applicant obtained personal information regarding the staff.[19]
[19] Brooks affidavit at [8.3] - [8.4]
With reference to ss 47F and 11B(5) of the Act, the Respondent relied on paragraphs 6.133 - 6.134 and 6.138 - 6.139 of the Guidelines issued by the Information Commissioner pursuant to s 93A of the Act (the FOI Guidelines) which state:
6.133 The personal privacy conditional exemption is designed to prevent the unreasonable invasion of third parties’ privacy. The test of ‘unreasonableness’ implies a need to balance the public interest in disclosure of government-held information and the private interest in the privacy of individuals. The test does not, however, amount to the public interest test of s 11A(5), which follows later in the decision-making process. It is possible that the decision maker may need to consider one or more factors twice, once to determine if a projected effect is unreasonable and again when assessing the public interest balance.
6.134 In considering what is unreasonable, the AAT in Re Chandra and Minister for Immigration and Ethnic Affairs stated that:
... whether a disclosure is ‘unreasonable’ requires … a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance … it is also necessary in my view to take into consideration the public interest recognised by the Act in the disclosure of information … and to weigh that interest in the balance against the public interest in protecting the personal privacy of a third party ..
6.135 An agency or minister must have regard to the following matters in determining whether disclosure of the document would involve an unreasonable disclosure of personal information:
a.    the extent to which the information is well known
b.    whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document
c.     the availability of the information from publicly accessible sources
d.    any other matters that the agency or minister considers relevant (s 47F(2))
6.136 These are the same considerations that must be taken into account for the purposes of consulting an affected third party under s 27A(2)
6.137 Key factors for determining whether disclosure is unreasonable include:
a.    the author of the document is identifiable
b.    the document contains third party personal information
c.     release of the document would cause stress to the third party
d.    no public purpose would be achieved through release.
6.138 As discussed in the IC review decision of ‘FG’ and National Archives of Australia [2015] AICmr 26, other factors considered to be relevant include:
· the nature, age and current relevance of the information
· any detriment that disclosure may cause to the person to whom the information relates
· any opposition to disclosure expressed or likely to be held by that person
· the circumstances of an agency’s or minister’s collection and use of the information
· the fact that the FOI Act does not control or restrict any subsequent use or dissemination of information released under the FOI Act
· any submission an FOI applicant chooses to make in support of their request as to their reasons for seeking access and their intended or likely use or dissemination of the information and
· whether disclosure of the information might advance the public interest in government transparency and integrity
6.139 The leading IC review decision on s 47F is ‘BA’ and Merit Protection Commissioner in which the Information Commissioner explained that the object of the FOI Act to promote transparency in government processes and activities needs to be balanced with the purpose of s 47F to protect personal privacy, although care is needed to ensure that an FOI applicant is not expected to explain their reason for access contrary to s 11(2).(footnotes omitted)
Ms Brooks stated her understanding that none of the individuals whose personal information is redacted from the documents the subject of the first decision had provided their consent to the release of their personal information. She confirmed the information withheld is personal information, as defined in s 4 of the Act, and is information about an individual who is not the Applicant.
Ms Brooks considered the Applicant did not need the information in order to pursue any lawful right of review. That was borne out by the Respondent’s acknowledgement at hearing that the Respondent accepted full responsibility for the actions of the delegate and all other employees in connection with the Applicant. It follows the Respondent or the Minister, not an employee or staff member, would be the proper respondent to any claim the Applicant might bring arising from the decisions or actions of an employee or staff member in connection with his application for a partner visa.
Ms Brooks stated the Department is required to ensure all personal information provided to the Department by its employees is securely maintained and used only in accordance with the consent instructions of the person. In her view, in summary, disclosure of the personal information of staff members would, on balance, be contrary to the public interest for three reasons:
i.disclosure would undermine the ability of the Department to take reasonable steps to protect the health and safety of its employees;
ii.disclosure would undermine confidence held by employees that the Department will take reasonable steps to protect them from harm; and
iii.disclosure would interfere with the professional discharge of the work of junior public servants who should be permitted to fulfil their lawful obligations free from personal harassment and concerns about their safety.
Ms Brooks stated the personal information sought by the Applicant is not well-known and not otherwise publicly available. She stated the Applicant’s prior communications with the Department have not been respectful, for example the Applicant’s representative describing Departmental staff members as “village idiots” and people who “leech on the public purse”.[20] The Respondent relied on Ms Brooks’ evidence that previous release of personal information regarding Departmental staff has led to abuse of staff as detailed above.
[20] Affidavit of Ms Brooks affirmed 11 June 2024 at [8.4]
The Respondent relied on a decision of the AAT, per DP Britten-Jones in Pravindra Kumar Singh and Commonwealth Ombudsman (Singh)[21] in which the Applicant applied to the AAT for review of a decision of the Ombudsman not to release personal information to him concerning staff in the (then) Department of Immigration, in particular their names, phone numbers and email addresses, in documents requested from the Ombudsman under the Act. The Ombudsman’s decision not to release the personal information related to the Ombudsman’s earlier decision not to investigate the Applicant’s complaint about the Department of Immigration.
[21] [2024] AATA 969
In Singh, the Ombudsman relied on s 47F of the Act and paragraph 6.138 of the Guidelines as to why the information was exempt from disclosure because it would involve an unreasonable disclosure of personal information about the staff members and, on balance, contrary to the public interest. The Respondent in this case relied upon the AAT’s reasons for why the personal information was exempt from disclosure:
I consider that the release of the name, phone number and email address of government officers in the documents in issue would be an unreasonable disclosure of personal information. The limited extent of the current redactions of that personal information is appropriate. I find that the documents containing this personal information are conditionally exempt under s 47F of the FOI Act. The release of that personal information would likely cause stress to those persons and it would amount to an unreasonable invasion of privacy. Further, it would serve no useful purpose. This is particularly so in circumstances where the applicant has shown a tendency to abuse and use foul language and make unsubstantiated allegations in his correspondence to officers of the respondent.[22]
[22] [2024] AATA 969 at [36]
The Respondent submitted that conclusion applied equally in this case.
I turn to the Applicant’s case. The Applicant challenged the Respondent’s submissions on many grounds.
First, the Applicant contended it was procedurally unfair to expect the Applicant to make submissions about why the documents should be released without first being allowed to inspect them.
I reject the submission. It is self-evident that to permit the Applicant to inspect the documents or information claimed to be exempt from disclosure, for the purpose of the proceeding, would defeat the claimed exemption. Procedural fairness is a practical matter to be considered according to the facts and circumstances of the case. The concern of the law is to avoid practical injustice.[23] To that end, the Applicant was entitled to a description of the information being withheld in order to consider the applicability of the statutory provisions relied on for why the information is exempt from disclosure. That has occurred.
[23] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 at [37]
Second, the Applicant noted the Respondent’s claims under ss 11A, 47E and 47F were based “solely” on the evidence of Ms Brooks. He submitted the Respondent’s claims based on her evidence are “untenable”[24] because it cannot be independently corroborated, is generalised and conclusionary in form;[25] Ms Brooks does not depose to having delegated authority to give evidence in these proceedings; and Ms Brooks is junior to the person who made the decision in proceeding 8299.
[24] Applicant’s submissions dated 5 July 2024 at [13]
[25] Applicant’s submissions dated 5 July 2024 at [13]
The Applicant’s submission strikes the problem that Ms Brooks’ affidavit was admitted without objection and she was not challenged on anything in it when she was available for cross-examination. Nor was she challenged on her authority to give evidence on behalf of the Respondent. Having responded to the tender of Ms Brooks’ affidavit in that way, notwithstanding his submissions about lack of weight or reliability I should place on it, the Applicant should be taken to have accepted her evidence. Accordingly, I accepted Ms Brooks’ evidence and took it into account. That said, I acknowledge some of her evidence was more akin to submission on questions that remained for me to decide.
I also acknowledge some of her evidence relevant to whether the personal information is conditionally exempt is stated as a matter of opinion and, to adopt the Applicant’s words, ‘conclusionary in form’ but I did not have any evidence to contradict that opinion.
Third, the Applicant contended the Respondent had not consulted the staff in issue to ascertain whether they objected to the release of their personal information and so Ms Brooks could not assert with any credibility that release of the information would be unreasonable or will cause the person stress.[26]
[26] Applicant’s submissions dated 5 July 2024 at [42]
I reject the submission. There is no evidence either way as to whether the Respondent or Ms Brooks had consulted the staff in issue. If the Applicant had wanted to test that proposition with Ms Brooks, he could have done so but he did not. In any event, that the Respondent might or might not have consulted with each staff member in issue as to whether they objected to the release of their personal information to the Applicant is not to the point. Ms Brooks gave evidence at length in her affidavit, not challenged by the Applicant, about an expectation that personal information collected by the Department will be kept confidential, how release of personal information could reasonably be expected to have a substantial adverse effect on the Department’s management of its staff and that disclosure would constitute an unreasonable disclosure of personal information for the reasons stated above.
Fourth, the Applicant contended there was no evidence to suggest the Applicant would use the information for any unlawful purpose and that what the Applicant intended to do with the information is not relevant to the question whether the information could be released. He submitted that whether disclosure would be unreasonable must be judged by reference to an objective standard and not by reference to what the person will do with the information. I accept, pursuant to s 11 of the Act, that the Applicant’s right of access is not affected by his reasons for wanting the documents or the Respondent’s belief as to what those reasons are. However, that has no bearing on whether the documents, or information in the documents, is exempt from disclosure pursuant to ss 11A, 47E and/or 47F. Of relevance is the risk of unwelcome or abusive communication or action against the staff member personally by a member of the public consequent on disclosure of personal information regarding that staff member. I accept Ms Brooks’ evidence regarding cases where that risk has eventuated.
Fifth, the Applicant contended the Respondent’s reliance on the Guidelines is “misplaced” because they might be informed by a “wrong interpretation” of the Act. The Applicant submitted the Guidelines are not a “relevant mandatory consideration”.[27]
[27] Applicant’s submissions dated 5 July 2024 at [44]
I accept the Guidelines are not mandatory, but that observation is without consequence because the Applicant did not refer to anything in the Guidelines that is contrary to the Act nor was I able to discern any inconsistency between the Guidelines and the Act. Also, pursuant to s 9A of the Act, an agency (and this Tribunal on review) “must have regard to” the Guidelines in performing a function or exercising a power under Part II of the Act and, pursuant to s 11B(5) of the Act, “must have regard to” the Guidelines in working out whether access to a document would, on balance, be contrary to the public interest. I note also that the paragraphs in the Guidelines on which the Respondent relied are referenced to court or tribunal decisions as authorities for what is stated in the paragraphs.
The Applicant next submitted the Respondent’s reliance on Singh is “moot” because the decision is not binding and is under appeal to the Federal Court. I reject the submission. The decision in Singh stands unless and until the Federal Court decides otherwise. Whilst it remains for me to decide on the facts in this case, I see no basis for why the Respondent cannot rely on the AAT’s findings regarding the personal information sought by the Applicant in that case which is materially the same as the personal information sought in this case.
The Applicant next submitted Ms Brooks’ evidence about the need to protect Departmental staff from harm is “humbug”.[28] The Applicant submitted he has “far better and [more] productive things to do than contacting and harassing the Respondent’s employees.”[29] The Applicant contended the Respondent’s concerns about protecting the health and safety of its employees is “ludicrous”[30] because the Applicant (through his representative or otherwise) had no intention of harassing them and there would be severe sanctions for doing so. With respect, that is somewhat inconsistent with the Applicant’s stated intention to sue them personally despite none of them being a proper respondent.
[28] Applicant’s submissions dated 5 July 2024 at [64]
[29] Applicant’s submissions dated 5 July 2024 at [62]
[30] Applicant’s submissions dated 5 July 2024 at [62]
In reply to the Respondent’s claim about the need to protect staff from harm, the Applicant relied on a decision of the Information Commissioner in ABK v Commonwealth Ombudsman (ABK) in which the Commissioner said:
I do not accept that releasing the names of Ombudsman officers means that other people will directly contact those individuals. … the Ombudsman has provided no evidence that the described risks have occurred, such that disclosure would be unreasonable in this case.[31]
[31] [2022] AICmr 44 at [79] – [81]
The Applicant quotes selectively from ABK. In that decision, the Commissioner reached her conclusion “in the circumstances of this case”.[32] Those circumstances included that “the full names of other departmental officers have been disclosed to the applicant”,[33] unlike this case. The Commissioner’s comment that the Ombudsman “has provided no evidence that the described risks [to the health and safety of staff] have occurred“ was in the context of names of officers that had previously been provided to the applicant,[34] unlike this case.
[32] [2022] AICmr 44 at [81]
[33] [2022] AICmr 44 at [75]
[34] [2022] AICmr 44 at [81]
I accept Ms Brooks’ evidence about the need in this case to protect staff from harm.
The Applicant next submitted the Respondent misstated the statutory test by contending these adverse effects “can be reasonably expected”, where the test is whether disclosure “would or could reasonably be expected to have a substantial adverse effect on the management of the assessment of [the Respondent’s] personnel”.[35] The Applicant relied on a decision of a Full Court of the Federal Court in Attorney General’s Department v Cockcroft (Cockcroft),[36] in which the Court found there “must be real and substantial grounds for believing that disclosure of the document could have the claimed effect”.[37]
[35] Applicant’s submissions dated 5 July 2024 at [55]
[36] [1986] FCA 35; (1986) 10 FCR 180
[37] Applicant’s submissions dated 5 July 2024 at [55]
In Cockcroft, the Court was considering the meaning of the words “could reasonably be expected to” and whether the AAT erred (as it found it had) by departing from these words and requiring the applicants to establish a case on the balance of probabilities. Bowen CJ and Beaumont J thought it “preferable to confine oneself to the language of the provision itself”. Shepherd J expressed his opinion that a decision-maker “will not be justified in claiming exemption unless, at the time the decision is made, he has real and substantial grounds for thinking that the production of the document could prejudice that supply.”
Whichever approach is taken, I am not persuaded the Respondent or Ms Brooks have erred in their application of the statutory test. In her evidence, not challenged by the Applicant, she repeatedly speaks about the substantial adverse impacts that disclosure of the personal information “could reasonably be expected to” have.[38] So does the Respondent.[39]
[38] Brooks affidavit at [7.8], [8.4], [8.6] and [8.7]
[39] Respondents amended statement of facts, issues and contentions dated 1 August 2024 at [75], [91], [95], [96] and [98]
The Applicant next contended Ms Brooks’ evidence as to why disclosure would, on balance, be contrary to the public interest should be put aside because she lacks competence in personnel management/assessment issues, the alleged effects are “mere speculation”[40] and privacy “cannot trump”[41] the Applicant’s right to natural justice.
[40] Applicant’s submissions dated 5 July 2024 at [53]
[41] Applicant’s submissions dated 5 July 2024 at [68]
I reject the first two contentions. There is no evidence to support them, and Ms Brooks’ evidence was accepted without challenge.
The third seemed to flow into the Applicant’s broader submission that “the public interest in disclosure of an iniquity, abuse of public power or misfeasance will always outweigh the public interest in confidentiality.”[42] He cited Allied Mills Industries v Trade Practices Commission (Allied Mills)[43] in support. This flowed into his submission that disclosure of the personal information regarding departmental staff is in the public interest because of the Respondent’s “egregious conduct (which includes [a] very serious allegation of visa fraud against the (Applicant [and Ms Boto]).”[44] The Applicant submitted the information “may reasonably expected to reveal the [R]espondent has engaged in fraud, corruption or improper conduct”.[45] The Applicant submitted disclosure was in the public interest because he had a “right to sue the Minister, the [R]espondent, her contractors and/or locally engaged employees for misfeasance in public office”[46] and to refer the Respondent, her contractors and/or locally engaged employees “to the national anti-corruption commission”.[47]
[42] Applicant’s submissions dated 5 July 2024 at [56]
[43] [1981] FCA 11; (1981) 34 ALR 105
[44] Applicant’s submissions dated 5 July 2024 at [45]
[45] Applicant’s submissions dated 5 July 2024 at [46]
[46] Applicant’s submissions dated 5 July 2024 at [46]
[47] Applicant’s submissions dated 5 July 2024 at [46]

In support of these very serious allegations, the Applicant relied on the AAT’s decision to remit the delegate’s decision to refuse the Applicant’s application for a partner visa. As the Applicant put it:
In the present case the Respondent has made serious, callous and vile allegations against the Applicants which were later found to be false by the AAT on review.[48]
[48] Applicant’s submissions dated 5 July 2024 at [54]
The AAT made no such finding. Its only comment about the decision of the Respondent’s delegate was at the beginning of its reasons, which was as follows:
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl820.211(2)(a) because the delegate was not satisfied the applicant was the de facto partner of the sponsor. The applicant seeks review of the delegate’s decision.[49]
[49] AAT's reasons for decision, 29 March 2023 at [3]
The AAT made no further comment about the decision under review and, in particular, made no comment critical of the Respondent, the Respondent’s delegate, any of the Respondent’s staff or employees or the decision under review. It applied itself solely to the task of considering the matter afresh, as it was statutorily required to do, and determining what it considered to be the correct or preferable decision based on the evidence before it.
Importantly, the evidence before it included “significant additional documentary evidence … [and] the benefit of the oral evidence of the applicant, the sponsor and three witnesses”[50] -none of which was before the delegate.
[50] Decision record at [12]
That the AAT reached a different decision by reference to significant additional evidence raises the prospect that the delegate might similarly have found the Applicant was in a genuine and continuing relationship had that evidence been available to the delegate.
The AAT never found that anything said by the Respondent or the delegate was false. It never characterised anything said by the delegate or anyone else on behalf of the Respondent as callous, vile or egregious. All that can be said is that it reached a different decision on the evidence before it, much of which was not before the delegate.
I considered whether the delegate’s decision warranted the characterisation of the Respondent’s behaviour made by the Applicant, even though the AAT made no such characterisation. Having carefully read the delegate’s reasons for decision, I see no basis for the Applicant’s characterisation. The delegate noted the evidence provided and then considered four topics (financial aspects, nature of the household, social aspects and commitment) for the purpose of deciding whether the delegate was satisfied the Applicant was the de facto partner of his sponsor. The delegate’s concern in each case was the absence of sufficient evidence to support the four key indicators, hence the use of words such as “no evidence”, “I do not find this evidence sufficient” and “very little evidence” in the delegate’s reasons to explain the delegate’s conclusion: “the limited evidence provided does not demonstrate you are in a genuine and continuing relationship.”
Whether evidence is or is not sufficient for a decision-maker to reach a conclusion on whether a person is in a genuine continuing relationship with another person is necessarily a subjective question of fact and degree. Views will often legitimately differ. Where I was not privy to the evidence before the delegate, I have no basis to find the decision was not reasonable where the reason for the decision was the absence of sufficient evidence to reach the necessary finding.
Relevant for the purposes of the Applicant’s submission is the absence of any evidence to support the Applicant’s claims of improper conduct, misfeasance or abuse of public power. All that can be said is that the delegate made a decision by reference to the lack of evidence provided. That circumstance does not suggest anything improper on the part of the Respondent, her delegate, her staff or anyone else. Lack of, or insufficient, evidence is a proper basis not to grant a visa.
Allied Mills is of no assistance. That decision was about whether the Trade Practices Commission could make use of confidential information already in its possession which evidenced a breach of the Trade Practices Act 1975. The Federal Court found that it could. Referring to the passage summarised by the Applicant, the Court said:
The authorities establish that the public interest in the disclosure (to the appropriate authority or perhaps the press) of iniquity will always outweigh the public interest in the preservation of private and confidential information.[51]
[51] [1981] FCA 11 at [105]
The circumstance giving rise to the Court’s observation is entirely different from the circumstances in this case. The Applicant is not a public authority or the press. He is not in possession of the document. There is no suggestion the personal information he seeks is evidence of iniquity. The AAT’s record does not suggest there is any iniquity to expose.
I acknowledge the delegate’s closing comment, contending the Applicant entered into the relationship for visa purposes only, was hurtful. It caused the Applicant and Ms Boto much distress. It was an opinion expressed by reference to the lack of evidence to support the visa application, but it need not have been said. However, the comment does not amount to improper conduct, misfeasance or the like where the delegate’s contention was not part of the reasoning for the decision. Refusal of the visa was decided entirely because of the lack of sufficient evidence to arrive at the necessary conclusion.
Accordingly, I am not persuaded there is any reasonable ground for suspecting improper conduct of any kind on the part of the delegate or any other Departmental staff member the exposure of which should “trump” the need for those persons’ personal details to remain confidential as a matter of public interest. There is no evidence of anything improper to expose.
The questions nevertheless remain whether the redacted personal information is conditionally exempt per s 47E or s 47F and, if so, whether disclosure would, on balance, be contrary to the public interest, regardless of the absence of any evidence of wrongdoing on the part of the Respondent’s employees and/or contractors.
I accept the evidence of Ms Brooks that the release of the personal information about staff members could reasonably be expected to have a substantial adverse effect on the Department’s management of its staff. These employees and other staff members perform difficult roles in personally charged circumstances for and on behalf of the Minister, as this case demonstrates. I accept Ms Brooks’ evidence that staff provide their personal information to the Department on the basis it will be kept confidential by those who receive it in the Department. Were it otherwise, officers and contractors would be reluctant, if not refuse, to provide their personal information. I accept it is therefore conditionally exempt from disclosure pursuant to s 47E(c) of the Act.
I accept too that disclosure would involve the unreasonable disclosure of personal information where the information is not well-known, the person or persons to whom the information relates is not known (hence the Applicant wanting that information) and the information is not publicly accessible. I accept it is therefore conditionally exempt from disclosure pursuant to s 47F of the Act.
Where the information is conditionally exempt from disclosure, the next question was whether disclosure would, on balance, be contrary to the public interest. The Applicant’s submission that disclosure is in the public interest in order to expose improper conduct on the part of the officers and/or contractors was not persuasive because, as mentioned, there is no evidence of any improper conduct to expose.
I am satisfied the personal information regarding Departmental staff is conditionally exempt pursuant to ss 47E(c) and 47F of the Act and that disclosure of the information would, on balance, be contrary to the public interest. The first decision is therefore confirmed subject to a variation to permit disclosure of personal information of third parties in documents previously provided by the Applicant.
Review of the second decision
In her second decision, the Respondent took the following position regarding the 20 kinds of requested documents.
i.    Dot point 1: release the documents provided to it by the Applicant, after deletion of third-party contact details. Refuse release of the draft decision record on the grounds that it is a conditionally exempt document and disclosure would be contrary to the public interest.
ii. Dot point 2: refuse access pursuant to s 12 of the Act because the documents is publicly available.
iii.    Dot point 3: release in full.
iv.    Dot point 4: disclosure of the documents would or could reasonably be expected to have a substantial adverse effect on the management or assessment of Departmental personnel. The documents are therefore conditionally exempt. Request refused because disclosure would be contrary to the public interest.
v.    Dot points 5 and 6: disclosure of the existence or otherwise of the requested documents could reasonably be expected to have a substantial adverse effect on the management of personnel.
vi.    Dot points 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16: request refused because all reasonable steps have been taken to find the requested documents and the documents do not exist.
vii.    Dot points 17 and 18: disclosure of the existence or otherwise of the requested documents could reasonably be expected to have a substantial adverse effect on the management of personnel.
viii.    Dot point 19: disclosure of the documents would or could reasonably be expected to have a substantial adverse effect on the management or assessment of Departmental personnel. The documents are therefore conditionally exempt. Request refused because disclosure would be contrary to the public interest.
ix.    Dot point 20: request refused because all reasonable steps have been taken to find the requested document and the document does not exist.
Arising from her reasons, the Respondent identified six ‘documents’ (using that term collectively where appropriate) within scope of the second request.[52]
i.    Document 1 referenced to dot point 1, being a draft decision record which the decision-maker decided was exempt from disclosure in full.
ii.    Document 2: referenced to dot point 1, being the documents provided by the Applicant which the decision-maker decided could be released in full after redaction of the names and personal details of third parties.
iii.    Document 3: referenced to dot point 2, being the delegation held by Ran to decide the Applicant’s application for a protection visa which the decision-maker decided could be released in full.
iv.    Document 4: referenced to dot points 1 and 3, being the Government’s Instrument of Delegation and Authorisation relevant to Ran’s delegated authority to decide the Applicant’s application for a protection visa which the decision-maker decided could be released in full.
v. Document 5: referenced to dot point 4, being Ran’s performance appraisal record which the decision-maker decided is exempt from disclosure pursuant to ss 11A, 47E(c) and 47F of the Act.
vi. Document 6: referenced to dot point 4, being another performance appraisal record for Ran which the decision-maker decided is exempt from disclosure pursuant to ss 11A, 47E(c) and 47F of the Act.
[52] 8299, T documents T 15/43 (I refer to T 15/43, being the number on the page, notwithstanding the absence of any documents numbered T 13 or T 14 in the T documents)
At hearing, the Respondent varied her position in respect of some of the identified documents as follows:
i. Document 1: release in full.
ii. Document 2: already provided, but the Respondent changed her position regarding the basis for the redactions of personal information concerning staff members, namely it relied on ss 11A, 47E(c) and 47F of the Act rather than s 22 of the Act.
iii. Document 5: release in full subject to redaction of staff members’ names, the supervisor’s name, position numbers and supervisor’s notes. The Respondent relied on ss 47E(c) and 47F of the Act as the basis for the redactions.
iv. Document 6: the Respondent maintained her position that the document is exempt from disclosure in full because the entirety of the document contains performance feedback and personal information about staff members. The Respondent relied on ss 11A, 47E(c) and 47F of the Act as the basis for the exemption from disclosure.
v. Additional document 7: referenced to dot point 5, being Ran’s job description as a delegated decision-maker, to be released in full.[53]
[53] Respondent’s amended statement of facts, issues and contentions at [82]
The Respondent submitted the personal information concerning Ran was conditionally exempt pursuant to s 47E(c) because disclosure would or could reasonably be expected to have a substantial adverse effect on the management or assessment of personnel by the Commonwealth. It also submitted the disclosure would involve unreasonable disclosure of personal information concerning Ran. Its submissions in support were materially the same as her submissions regarding staff generally.
I am satisfied that personal information regarding Ran is exempt from disclosure for the same reasons I am so satisfied in relation to staff generally. In particular, where there is no evidence of any improper conduct on the part of Ran, I see no basis to differentiate personal information regarding Ran from personal information concerning any other member of the Department staff.
The next point of contention was the Respondent’s refusal to confirm or deny the existence of documents or information responding to his dot points 6, 17 and 18 (noting the Respondent’s changed position regarding dot point 5) and its reliance on s 26(2) of the Act for doing so. S 26 relevantly provides:
Reasons and other particulars of decisions to be given
(1)  Where, in relation to a request, a decision is made relating to a refusal to grant access to a document in accordance with the request or deferring provision of access to a document, the decision - maker shall cause the applicant to be given notice in writing of the decision, and the notice shall:
(a)  state the findings on any material questions of fact, referring to the material on which those findings were based, and state the reasons for the decision; and
(aa) in the case of a decision to refuse to give access to a conditionally exempt document--include in those reasons the public interest factors taken into account in making the decision
..
(2)  A notice under this section is not required to contain any matter that is of such a nature that its inclusion in a document of an agency would cause that document to be an exempt document.
The Respondent relied on Ms Brooks’ evidence, not challenged by the Applicant, that to confirm or deny whether it holds documents responding to dot points 6, 17 and 18 would tend to reveal whether Ran is an Australian citizen (per dot point 6) or has been the subject of any disciplinary action or complaints (per dot points 17 and 18). She relied also on Ms Brooks’ evidence, not challenged by the Applicant, that release of information of that kind could reasonably be expected to have a substantial adverse impact upon the ability of the Department to attract, recruit and/or retain staff because it could undermine employee confidence in the Department in managing or assessing staff. It also noted the information sought would be personal information about Ran.
In support of its position, the Respondent relied on a decision of the Federal Court, per Emmett J, in Secretary, Department of Health and Ageing v iNova Pharmaceuticals (Australia) Pty Ltd(iNova)[54] in which the Court commented on the operation of s 26:
There is nothing in s 26(1) that would, in terms, require a decision maker to include in the notice of the decision a statement that a particular document existed that was exempt. It would be quite anomalous if, notwithstanding s 26(2), the decision maker would be required to disclose, in the notice of the decision, the fact that a document existed or did not exist, notwithstanding that that fact made the notice of the decision itself an exempt document within any of the provisions of Part IV of the FOI Act.[55]
[54] [2010] FCA 1442
[55] [2010] FCA 1442 at [58]
The Applicant contended the Respondent’s reliance on s 26 was “problematic” because the issue was not raised in the revised decision now under review.[56] That is factually incorrect. It was raised in the decision under review.[57] In any event, even if there is a factual misunderstanding on this point, the claim is without substance. This Tribunal is required to review the decision afresh. Accordingly, it can and should consider submissions of law made by the parties irrespective of whether they were previously made.
[56] Applicant's submissions in reply dated 5 July 2024 at [18]
[57] 8299, T 15/49
The Applicant then contended iNova has “no relevance”[58] because it is distinguishable on the facts and has been superseded, he said,[59] by a later decision of the Federal Court, per Charlesworth J, in Patrick v Attorney-General (Patrick).[60] In his later written submissions, the Applicant clarified the submission by stating iNova is superseded by Patrick “to the extent that the Act should not be construed in a way based on the agency’s view of how the Act’s provisions should be interpreted”.[61]
[58] Applicant's submissions in reply dated 5 July 2024 at [19]
[59] Applicant's submissions in reply dated 5 July 2024 at [20]
[60] [2024] FCA 268
[61] Applicant's further submissions in reply dated 12 August 2024 at [37]
The Applicant did not elaborate on why iNova is distinguishable on the facts, nor can I see why that is so, or could be, where the comments of the Court in iNova on which the Respondent relied are statements of principle about the operation of the law irrespective of the factual context in which those statements were made.
Nor can I see a basis for why it could be said iNova has been superseded by Patrick to the extent claimed or otherwise. The Applicant relied on the comments of Charlesworth J in Patrick at paragraph 154 but did not refer to anything in particular in that paragraph. I am unable to see anything in that paragraph or the decision generally that is relevant to the Court’s comments about the operation of s 26 in iNova. In Patrick at paragraph 154, her Honour commented on a document claimed by decapitation Attorney-General to be a Cabinet document. She observed that “an assertion by an original decision maker that a document is a ‘Cabinet document’ does not definitively make it so”.[62] Her Honour also observed “The FOI Act should not be construed in a way that would permit a member of an Executive to treat that question as if decided in accordance with his or her own view of the matter. The better construction of the FOI Act is that the Executive not treat the Document in any way that would interfere with the right of the requesting party to have the question determined in accordance with the review and appeal procedures established by the FOI Act itself”.[63]
[62] [2024] FCA 268 at [154]
[63] [2024] FCA 268 at [154]
I respect and accept her Honour’s comments, but they do not supersede or contradict the Court’s comments in iNova. As the Respondent pointed out, iNova is not mentioned in Patrick. Emmett J in iNova commented on the operation of s 26, but made no suggestion that an agency’s claim or statement that a document is exempt “definitively make[s] it so” or that disclosure of a document should be determined otherwise than in accordance with the review and appeal procedures established under the Act.
I accept the Applicant’s submission (as I understood it) that it is for this Tribunal (not the Respondent) to decide whether the claim under s 26 should be accepted, which is the point in principle made by Charlesworth J in Patrick. The Respondent did not suggest otherwise.

I turn then to the Respondent’s reliance on s 26 for the purpose of refusing to confirm or deny it holds documents that respond to dot points 6, 17 and 18.
It is, in my view, self-evident that if the Respondent were to state it held a document responding to dot point 6, it would necessarily be revealing that Ran is an Australian citizen regardless of any basis (successfully claimed or otherwise) for refusing to release the document. Ran’s citizenship is personal information to them and, in my view, therefore conditionally exempt. Then there is the question whether disclosure of that information, contained in a notice given under s 26(1), would, on balance, be contrary to the public interest. In this respect, I only have the unchallenged evidence of Ms Brooks. I accept her evidence. I accept the Respondent is entitled, with reliance on s 26, to refuse to confirm or deny the existence of a document responding to dot point 6.
Regarding dot points 17 and 18, for the Respondent to state it did not have any documents “showing any disciplinary action taken against Ran” or “showing any complaints... made against Ran” would necessarily be revealing at least the likelihood that no disciplinary action has been taken or complaints have been made. Even if that were seen as information favourable to Ran, it is still personal information to them. Conversely, to acknowledge the existence of such documents would be to reveal that disciplinary action and/or a complaint has been made, which is personal information to Ran, irrespective of whether the Respondent could successfully claim the documents are exempt from disclosure. Either way, Ms Brooks gave unchallenged evidence that revealing that information could reasonably be expected to have a substantial adverse impact upon the ability of the Department to attract, recruit and/or retain staff. I have no proper basis to reject that evidence. It is reasonable and logical. I can well understand a staff member objecting to the release of information of that kind to the public, regardless of the content, on the basis that it is personal information relevant only to their employment with the Department. I accept Ms Brooks’ evidence that disclosure of that information would be contrary to the public interest. I accept the Respondent is entitled, with reliance on s 26, to refuse to confirm or deny the existence of documents responding to dot points 17 and 18.
Next, the Applicant challenged the Respondent’s refusal of requested documents on the grounds they cannot be found or do not exist. He contended the Respondent should continue her search. In this regard, s 24A(1) of the Act provides:
Requests may be refused if documents cannot be found, do not exist or have not been received
Document lost or non - existent
(1)  An agency or Minister may refuse a request for access to a document if:
(a)  all reasonable steps have been taken to find the document; and
(b)  the agency or Minister is satisfied that the document:
(i)  is in the agency's or Minister's possession but cannot be found; or
(ii)  does not exist.
The Applicant noted the Respondent’s claim that it had conducted reasonable searches is “based on a single thread”, being Ms Brooks’ affidavit, and submitted her evidence that the Respondent cannot find the majority of the information relating to the Applicant’s second request “strains credibility”.[64] The Applicant noted Ms Brooks, in her affidavit, does not provide details as to the dates or times when searches were conducted or who carried them out or any evidence to corroborate her claim that the Respondent’s family visas branch conducted searches for the requested documents without success.
[64] Applicant’s submissions in reply dated 12 August 2024 at [22] and [28]
The Respondent relied on Ms Brooks’ evidence (at paragraphs 3.1-3.5 of her affidavit) about the searches done without success for the requested documents.
I accept Ms Brooks’ evidence is in summary form, but that is not a basis to doubt it where it was never suggested to her that her evidence was not correct or complete. Details about who conducted the searches, and when and how the searches were done might have cast light on the adequacy of the searches but I do not see why I should not accept the evidence where it was not challenged. Nor did the Applicant tender any evidence to cast doubt on the adequacy of the searches. In all, I accept Ms Brooks’ evidence that searches were conducted for documents responding to the Applicant’s dot points 7- 15 and that no information or records in scope were found.
The decision under review is varied.
I certify that the preceding 101 paragraphs are a true copy of the reasons for the decision herein of Senior Member McCarthy.
……….[SGD]………
Tribunal Officer
Date: 24 April 2025
Date of hearing:  1 October 2024
Advocate for the Applicant:  A Singh
Advocate for the Respondent:  K Duldig
Solicitor for the Applicant:  N/A
Solicitor for the Respondent:  Clayton Utz