Storay and Department of Immigration and Multicultural and Indigenous Affairs

[2004] AATA 640

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 640

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2003/104

GENERAL ADMINISTRATIVE  DIVISION		)
Re		KENNETH STORAY

Applicant

And DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENEOUS AFFAIRS

Respondent

DECISION

Tribunal Miss Mary Imlach (Senior Member)

Date22 June 2004

PlaceHobart

Decision The Tribunal affirms the decision under review.

[Sgd Mary Imlach]

Senior Member

CATCHWORDS

FOI - breach of confidence - migration regulations - domestic violence - permanent residence.

Freedom of Information Act 1982 ss41(10), 45(1)

REASONS FOR DECISION

22 June 2004 Miss Mary Imlach (Senior Member)         

Decision Under Review

1.      The decision under review is the internal review by the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) dated 1 May 2003, which determined that a number of requested documents could not be released to the applicant because they were exempt documents under the Freedom of Information Act 1982 (“the Act”).

Background

2.      The applicant requested copies of documents relating to his ex-wife, Irena Storay from the Department on 10 August 2000.

3.      The Department wrote to the applicant on 19 October 2000 giving reasons why his request was allowed in part.

4.      On 22 January 2003 the applicant wrote to the Department seeking copies of various documents.

5.      On 3 April 2003 the Department wrote to the applicant advising that his request for further documents was allowed in part.

6.      On 14 April 2003 the applicant wrote to the Department seeking internal review of the decision made on 3 April 2003.

7. On 1 May 2003 the Department wrote to the applicant advising that the internal review had been completed and that a number of requested documents could not be released to the applicant because they were exempt documents under the Act.

8.      On 2 June 2003 the applicant lodged his application for review with the Administrative Appeals Tribunal.

Applicant’s Case

9.      The applicant was represented by Mr R V Bunting.   The applicant  contended that the Department and the former Irena Storay should have known and indeed would have known that the information that Mrs Storay had put in her statutory declaration attached to Form 1040 was an allegation of a criminal act.

10.     The applicant contended further that Mrs Storay had fraudulently slandered his name in informing a number of people of the contents of her statutory declaration alleging the applicant was a perpetrator of domestic violence.

11.     Mr Storay claimed that because the information in the statutory declaration had not been released to him by the Department, he was unable to defend his name in the public domain.

Respondent’s Case

12. Mr J Shears appeared for the Department. The respondent contended that it was bound to follow the requirements of the Act which prevented it from producing the statutory declaration to the applicant because the document had been provided to Mrs Storay in confidence.

13.     The form of the statutory declaration used by the Department made it clear that the contents of the declaration would be kept confidential.

14.     The respondent referred the Tribunal to the decision in Kaminga and Australian National University (1992) 15 AAR 297 and submitted this case as authority for the proposition that a document cannot be provided to a person if disclosure of that document might give rise to an action for breach of confidence.

Issue

15.     The issue for determination by the Tribunal is whether or not the Department ought to release  the statutory declaration by Irena Storay attached to the Form 1040 lodged by her with the Department.

Reasons

16. The applicant sought review of a decision to refuse him access to several documents sought by him under the Act. The applicant reduced his request to just one document, namely the statutory declaration of Irena Storay attached to the Form 1040 lodged by her with the Department.

17.     The document related to an application by Mrs Storay for permanent residence in Australia.

18. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975.

19. The respondent sought to rely on the provisions of s45(1) of the Act in support of its claim that the document was exempt.

20.     The respondent contended that the document had been given to it by the deponent, Irena Storay, on the understanding that its contents would be kept confidential.

21.     The applicant claimed that the document contained allegations about acts of domestic violence perpetrated by him against Irena Storay.

22.     The applicant claimed that he had been fraudulently slandered by his former wife because she had informed a number of people of the contents of the document.   The applicant did not call any evidence as to who the people were who had been informed of the contents of the document, how many people had been told or what they knew about the document.

23.     The applicant made an assumption that the document contained allegations of a criminal act,   but brought no evidence to support his assumption.

24.     The respondent referred to the notes attached to the Form 1040 and the statement made in bold writing on the form that the information in this form would be given and received on the understanding that it would be treated in confidence.

25.     The respondent informed the Tribunal that it had approached Irena Storay, the person who had made the statutory declaration and had sought her permission to release the document to the applicant.  Mrs Storay had declined to consent to the production of the document.

26. The respondent was bound to follow the requirements of s45(1) of the Act once Irena Storay had declined to consent to the production of the document to the applicant.

27. Section 45(1) of the Act provides:

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

28.     The test to be applied in establishing whether a disclosure of a document would give rise to an action for breach of confidence is that in the Kaminga case. That case established that there are four criteria making up the relevant test for determining whether a breach of confidence is likely to occur.

29.     The relevant test is:  The plaintiff –

(1)Must be able to identify with specificity and not merely in global terms that which is said to be the information in question.

(2)The information has the necessary quality of confidentiality and is not for example, common or public knowledge.

(3)The information has been received by the defendant in such circumstances as to import an obligation of confidence.

(4)There is actual or threatened misuse of that information.

In applying the four criteria to the facts of the present casse it is found:

(1)There is no doubt as to what specific document is sought, the particular information in question is a statutory declaration given by a certain person and the identity of that person is known.

(2)There is no doubt also that the document was provided on the understanding that it was to be kept confidential as those words are stated on the form itself.    The applicant’s claim that the contents of the declaration was common knowledge known to some persons was not substantiated by any evidence of the identity or number of such persons.

(3)The fact that the information was received by the Department in circumstances as to import an obligation of confidence is apparent from the fact that it was stated on the 1040 Form itself:

“that the information you give on this form is to be given and received on the understanding that it will be treated in confidence in other words the contents of the deponent’s statutory declaration will not be passed on to third parties.”

(4)       The fourth part of the criteria is that:

“There is an actual or threatened misuse of the information.”

The respondent argued that the disclosure of the statutory declaration itself which is the subject of an obligation of confidentiality would itself be misuse.

30. The Tribunal finds that the respondent was correct in claiming that the statutory declaration of Irena Storay was an exempt document pursuant to s45(1) of the Act.

31.     The respondent has established that the relevant test is the accepted criteria in the Kaminga case and the Tribunal accepts that the facts of the present case satisfy that test.

32.     The applicant’s repeated allegations in his submissions that Irena Storay has made false accusations that he has been denied natural justice in this matter and that he has been denied his presumption of innocence are serious matters.   It was incumbent on the applicant to support his allegations by evidence.   None was submitted.

33.     It appears to the Tribunal that the applicant’s claims were based solely on conjecture on what be believed may be contained in the document.  

34. It follows that the document is exempt from disclosure under s45(1).

35.     The Tribunal affirms the decision under review.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Miss Mary Imlach (Senior Member)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing  2 April 2004
Date of Decision  22 June 2004
Representative for the Applicant    Mr R V Bunting
Counsel for the Respondent     Mr J Shears
Solicitor for the Respondent     Australian Government Solicitor