"SRAD" and Refugee Review Tribunal - [2005] AATA 238

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 238
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/926

GENERAL ADMINISTRATIVE DIVISION )

Re
“SRAD”
Applicant

And

REFUGEE REVIEW TRIBUNAL

Respondent

DECISION

Tribunal Senior Member M D Allen
Date21 March 2005
PlaceSydney

Decision
The decision under review is affirmed.

(Sgd) M D Allen
.............................
Senior Member

Whereas s 4 FOI Act defines “personal information” as:
“Personal information means information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.”

S 45 FOI Act states inter alia:
“A document is an exempt document if its disclosure under this Act would found an action, by a person (other than an agency of the Commonwealth), for breach of confidence.”

8. Subsection 41 (1) FOI Act was recently considered by Mansfield J in Ward v Centrelink [2005] FCA 73. Commencing at paragraph 27 His Honour said:
“The Full Court of this Court dealt with the interpretation of s 41(1) of the FOI Act in Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 (Colakovski). I note that that decision predates the amendments to ss 4 and 41 of the FOI Act in the Freedom of Information Amendment Act 1991 (Cth). In summation, Lockhart J (with whom Jenkinson and Heerey JJ agreed) stated at 438:
‘This is not an appropriate case in which to examine definitively the circumstances that may constitute “the unreasonable disclosure of information” relating to a person’s “personal affairs” because the argument before us proceeded on the limited basis outlined previously. It is sufficient for present purposes to say that “every person” has a “legally enforceable right to obtain access” to documents under the FOI Act: s 11. There is no requirement that the person seeking access have a proprietary or any other interest in documents or the information contained in them. The object of the Act, as expressed by s 3, is to give the “Australian community” the right of access to information in the possession of the Australian Government. What is “unreasonable” disclosure of information for purposes of s 41(1) must have as its core public interest considerations. The exemptions necessary for the protection of “personal affairs” (s 41) and “business or professional affairs” s 43) are themselves, in my opinion, public interest considerations. That is to say, it is not in the public interest that the personal or business or professional affairs of persons are necessarily to be disclosed on applications for access to documents. The exemption from disclosure of such information is not to protect private rights, rather it is in furtherance of the public interest that information of this kind is excepted from the general right of public access provided the other conditions mentioned in sections 41 and 43 are satisfied. An examination of the other provisions of Part IV of the Act concerning exempt…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] AATA 238
Decision Date: 21 March 2005

CaseChat Overview and Summary

The applicant, SRAD, sought to access certain documents that were provided to the Refugee Review Tribunal by a third party. These documents were deemed to contain personal information that affected the applicant's privacy, and had been obtained in confidence. The applicant argued that under the Freedom of Information Act, they should have access to these documents. The Tribunal declined the application and the applicant sought judicial review of that decision. The court had to determine whether the Tribunal was correct in its decision to deny access to the documents.

The primary legal issue before the court was whether the documents were exempt from disclosure under the Freedom of Information Act. The applicant argued that the exemption for personal information did not apply as the documents were relevant to the application for refugee status. The court had to balance the applicant's right to access information against the third party's right to privacy. The court also considered whether the documents were obtained in confidence and whether disclosure would be contrary to the public interest.

The court found that the documents were exempt from disclosure under section 45 of the Freedom of Information Act as they contained personal information that affected the applicant's privacy. The court held that the third party had a legitimate expectation of privacy in the information and that disclosure would be contrary to the public interest. The court also noted that the documents were obtained in confidence and that disclosure would undermine the integrity of the decision-making process. The court rejected the applicant's argument that the documents were relevant to the application for refugee status.

The court affirmed the decision of the Tribunal and held that the applicant was not entitled to access the documents. The court found that the Tribunal had correctly applied the relevant provisions of the Freedom of Information Act and had appropriately balanced the competing interests of the parties. The court held that the decision of the Tribunal was reasonable and lawful.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

GENERAL ADMINISTRATIVE DIVISION		)
Re		“SRAD” Applicant