ZHANG and DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

[2011] AATA 636

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 636

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0548

GENERAL ADMINISTRATIVE  DIVISION		)
Re		YIZHE ZHANG

Applicant

And DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date9 September 2011

PlaceCanberra

Decision The decision under review is varied to the extent that document ‘folio 9’ of file F95/139701 is not an exempt document.

.....................[sgd].........................

Mr S. Webb, Member

CATCHWORDS

FREEDOM OF INFORMATION - request for access to documents - exemptions claimed but not challenged - adequacy of searches - all reasonable steps taken - decision affirmed

Freedom of Information Act 1982 ss 24A, 33, 37, 56(5)

Freedom of Information Amendment (Reform) Act 2010

Chu v Telstra Corporation Limited [2005] 147 FCR 505

Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138

Re Ugur and Australian Federal Police [2009] AATA 405

REASONS FOR DECISION

9 September 2011 Mr S. Webb, Member         

1.      Yizhe Zhang requested access to information concerning or in reference to himself held by the Department of Immigration and Citizenship (the Department)[1]. A number of documents were identified. All but two of the documents were released in full[2]. Mr Zhang sought an internal review and requested that further searches be conducted to identify all relevant documents within the scope of his request[3]. This was done[4], and the internal review was completed on 18 January 2011, with the result that one of the documents in dispute was released. But Mr Zhang was not satisfied and remained of the opinion that additional documents must exist and that the remaining document said to be exempt should be released. On 15 February 2011 he applied for review[5].

[1] T4.

[2] Primary determination, 29 October 2010.

[3] T5.

[4] T2; T7 and T8 refer.

[5] T1.

2. Early in the proceedings before the Tribunal, on 18 March 2011, the Department decided in a further internal review decision to release the remaining document, ‘folio 9’ of file F95/139701, and did so. It appears that this was done without the consent of the Tribunal under section 26 of the Administrative Appeals Tribunal Act 1975. That was, perhaps, an unfortunate error or oversight on the part of the Department or its legal advisers. It is one, nevertheless, that must be rectified to remove any doubt about the status of ‘folio 9’. For this reason, alone, the decision under review will be varied to the extent that ‘folio 9’ of file F95/139701, which was considered by the internal review decision-maker, Ms Sarangaya, and found by her in the first instance to be exempt under section 33 of the Freedom of Information Act 1982 and in the second instance not to be an exempt document, is not an exempt document.

3.      Prior to the hearing, further searches were conducted and additional documents were identified on information provided by Mr Zhang. These were released in full[6]. During the hearing, Mr Zhang was directed to adduce any further documents in his possession concerning the Department that had not been identified or found. This was done[7]. I directed the Department to file evidence of the Department’s database systems, archive policies and arrangements, and a detailed explanation of the searches conducted in response to Mr Zhang’s request and why the documents he handed up could not be found. This was done and further searches were conducted, without any further documents being found[8]. Subsequently, further searches were conducted and additional documents were found[9]. Those additional documents were released to Mr Zhang in full[10].

[6] Letter from Clayton Utz to Mr Zhang, 26 May 2011.

[7] Exhibit A1, letter from Mr Zhang, 27 May 2011.

[8] Respondent’s Supplementary Submissions, 7 July 2011.

[9] Exhibit R1.

[10] Letter from Clayton Utz to Mr Zhang, 20 July 2011.

4.      The hearing resumed.

5.      Mr Zhang asserts that the searches conducted by the Department are not adequate or sufficient to identify all of the documents and information within the terms of his request that are held by the Department. He notes that the searches conducted have not identified or found all of the documents he provided under cover of his letter dated 27 May 2011; nor have the searches revealed any documents relating to or arising from a security check requested by the Department on 26 July 1996[11]. Mr Zhang asserts that it is simply inconceivable that no documents or information concerning that matter are in the Department’s holdings[12]. Furthermore, Mr Zhang says that documents or information concerning communications between Departmental officers in respect of responses to Mr Zhang’s letters must have been created[13], but no such documents have been identified or found in the searches conducted by the Department and no reasonable explanation for this failing has been provided.

[11] T9 folio 106.

[12] The Applicant’s Further Submissions, 22 August 2011 at point 3(1).

[13] The Applicant’s Further Submissions, 22 August 2011 at points 3(2) to (6) inclusive.

6. At this point it is necessary to make two observations. The additional documents that were identified and found in further searches conducted by the Department are documents that the Department decided to release to Mr Zhang in full without reference to the Tribunal. That being so, pursuant to section 56(5) of the Act these proceedings do not extend to the review of those decisions. The decision that is presently before the Tribunal has not been varied under section 26 of the Administrative Appeals Tribunal Act 1975 to account for these additional documents and it is not therefore necessary to deal further with them.

7.      Mr Zhang urged me to accept that the searches conducted by the Department were piecemeal and inadequate: only four database systems out of at least 138 such systems were searched. Furthermore, Mr Zhang says that the Departmental officers who conducted the searches may not have had sufficient power to access and conduct proper searches of all relevant systems. He was critical of the Department’s efforts in this regard and asked me to carefully consider inconsistencies in the evidence of Departmental officers.

8.      Mr Zhang says that the terms of his request for information were broad; it was not confined to particular documents, or to information of a particular kind. The test of reasonableness in respect of the steps taken to find all relevant documents must therefore be applied with due regard to the nature of his request. He asserts that it is not appropriate or reasonable for the Department to require information about particular documents in order to frame its searches – the searches should reflect the breadth of his request.

9.      Mr Zhang says that his work colleagues and neighbours have knowledge about his immigration affairs and are working with the Australian Federal Police to keep him under surveillance. He asserts that the Police have been directed to do so by persons unknown: “the real question is who asked them to be involved?”[14] Mr Zhang is convinced that the Department is implicated in his alleged surveillance and must hold some records of it or in relation to it. The main reason for this, in Mr Zhang’s submission, is that his work colleagues and neighbours have made adverse comments about him in relation to two false employment references in migration documents in 1995. This, he says, points to Departmental involvement. For these reasons, Mr Zhang maintains his strong opinion that further searches may reveal additional documents and, in particular, may shine a light on who ordered his surveillance and his extra-judicial “punishment”.

[14] Oral submissions, 22 August 2011.

10.     In sum, Mr Zhang says that the situation in which he finds himself, where no witness will truthfully testify about the arrangement and conduct of his surveillance, but where the surveillance continues as a form of covert punishment and he is unable to objectively prove its continuance, is intolerable harassment that must be brought to an end. Only by requiring further searches of Departmental records is there any hope of finding relevant evidence that, once exposed to scrutiny, may cause the surveillance and harassment that he has been subjected to over many years to be terminated. Mr Zhang urged me to accept that this alleged behaviour is unacceptable: there is a powerful public interest in the promotion of justice in the actions of Government in relation to a citizen. This interest requires that further searches should be conducted by the Department.

11.     The test to be applied is set out in section 24A of the Act. Amending provisions under the Freedom of Information Amendment (Reform) Act 2010 commenced in accordance with the table in section 2 of that Act; as can be seen, the amendments made by items set out in Part 2 of Schedule 3 and Part 1 of Schedule 4 apply to applications or requests made after the commencement of those items[15]. These amendments commenced after Mr Zhang made his request.

[15] Item 39, Part 4, Schedule 3 and Item 65, Part 3, Schedule 4, Freedom of Information Amendment (Reform) Act 2010.

12.     The section 24A test has two elements: ‘all reasonable steps’ must have been taken to find the document; and the decision-maker must be satisfied that the document is within the agency’s holdings but cannot be found, or it does not exist[16]. The phrase ‘all reasonable steps’ can be understood to mean steps “not going beyond the limit assigned by reason or not extravagant or excessive; moderate or judged to be appropriate or suitable to the circumstances or purpose”[17].  But the significance of the word ‘all’ should not be overlooked: as Finn J said in Chu v Telstra Corporation Limited at [35][18]:

A person requesting access to a document that has been in that agency’s or Minister’s possession should only be able to be denied on the s 24A ground when the agency (or the Minister) is properly satisfied that it has done all that could reasonably be required of it to find the document in question. Taking the steps necessary to do this may in some circumstances require the agency or Minister to confront and overcome inadequacies in its investigative processes. Section 24A is not meant to be a refuge for the disordered or disorganised.

[16] Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138 at 145.

[17] Re Ugur and Australian Federal Police [2009] AATA 405 at [17].

[18] [2005] 147 FCR 505.

13.     For present purposes, in order to properly address these elements of the statutory test it is necessary to consider the following variables: the terms of Mr Zhang’s request; the steps taken by the Department in response to the request; relevant documents identified and found by those steps; the Departmental systems for the retention of documents and information of relevance; and evidence that additional documents may exist in the Department’s holdings.

14.     Mr Zhang lodged his request on 1 October 2010. It was in the following broad terms:

1. Copies of all correspondence about or referring to myself (Yizhe Zhang)

2. Copies of any and all files held under my name (Yizhe Zhang) or that reference me[19]

[19] T4 folio 74.

15. Searches were conducted by Susan Selvadoss, supervisor of the Department’s Freedom of Information Access Team. Ms Selvadoss’ oral evidence is that she searched four database systems: TRIM – Total Records Information Management, MAINFRAME, Resolve – Complaints Handling Database, and ICSE – Integrated Client Services Environment. File number F95/139701 containing 117 folios was identified and considered to be within the scope of Mr Zhang’s request. On Ms Selvadoss’ evidence this file relates to permanent residence. Folios 9 and 22 were determined to be exempt from release under sections 33A and 37(1)(b) of the Act, respectively[20]. Subsequently, on internal review by Ms Sarangaya, further searches were conducted and an additional file was identified, concerning citizenship – file number ES19990049067. On 18 January 2011 Ms Sarangaya decided that the contents of this file and folio 22 of file F95/139701 should be released and that the exemption claimed in respect of folio 9 of file F95/139701 should be affirmed[21]. Subsequently, the Department decided to release folio 9 of file F95/139701.

[20] Primary Determination, 29 October 2010.

[21] T2 folios 8 to 9 inclusive.

16.     On the evidence of Ms Selvadoss further searches were conducted by Kim Vella in April 2011[22]. As can be seen, Ms Selvadoss was ‘satisfied’ that the methodology used to search for documents within the scope of Mr Zhang’s request was ‘appropriate’. That is so even though these searches in April 2011 and the searches conducted by Ms Sarangaya on internal review identified a file that was not identified in the searches Ms Selvadoss conducted at first instance. Ms Selvadoss’ failure to identify file ES19990049067 has not been explained.

[22] Affadavit of Susan Selvadoss, 20 April 2011, paragraphs [18] to [20] inclusive.

17.     Following the receipt of further information from Mr Zhang on 22 May 2011, Ms Selvadoss conducted a search of the Resolve database system. She discovered a number of additional documents that were released to Mr Zhang in full[23]. Mr Zhang provided additional information on 27 May 2011 and Ms Selvadoss conducted further searches. She searched the ExecCorro database system, but no documents were identified[24]. By her own account, she required permission to access this system and, not being familiar with its operation, she required assistance from another officer to conduct the search. On 6 June 2011 Ms Selvadoss stated that “I believe that the searches that have been conducted to date have been thorough and reasonable” and that “further searches are unwarranted and unreasonable” – “I am satisfied that all efforts have been taken to discover any documents in possession of the Department regarding Mr Zhang, and that all relevant documents have been disclosed in full”[25].

[23] Affadavit of Susan Selvadoss, 6 June 2011, paragraphs [11] to [12] inclusive.

[24] Affadavit of Susan Selvadoss, 6 June 2011, paragraphs [17] and [18].

[25] Affadavit of Susan Selvadoss, 6 June 2011, paragraphs [19] and [20].

18.     It is not clear to me that Ms Selvadoss was aware that other searches were on foot or under contemplation at that time. It appears that on 1 June 2011 Ms Sarangaya referred the matter to Rebecca Harrison, a former director of the Skilled Migration Section of the Department, and Ms Harrison conducted a further search of that Section’s ‘G-drive’ for relevant documents, with no result[26]. On 1 July 2011 Ian Hetherington, Director of the Ministerial Correspondence Section of the Department, was asked to search the ExecCorro database system. It appears that he did so on 15 July 2011 and identified two additional files – 0612/01178 and 0708/01209[27].

[26] Exhibit R3.

[27] Exhibit R1.

19.     As I have said, these various searches have resulted in the identification of one file concerning permanent residency (F95/139701), one file concerning citizenship (ES19990049067) and a number of email and other communications in relation to communications from Mr Zhang to a number of former Ministers and Departmental officers.

20.     Evidence concerning the record management policies and systems of the Department has been tendered[28]. On the evidence of Stuart Reay, Director of the Department’s Service Management Office, it appears that the Department operates 138 systems of possible relevance. I accept Mr Reay’s evidence and find that the ExecCorro system was formerly known as the Parliamentary Correspondence Management System, which appears in the System Catalogue attached to his affadavit. On his evidence it is likely that Ms Selvadoss’ reference to MAINFRAME is a reference to the mainframe platform of the Department that hosts a number of systems and applications that are identified in the Systems Catalogue. I note that the Records Authority in respect of the Department requires that records relating to enquiries from members of the public, such as Mr Zhang, concerning migration matters are to be retained for periods of between 5 and 20 years, whereas records relating to the grant of a permanent residency visa are to be retained as national archives[29].

[28] Exhibits R2, R4 and R5 refer.

[29] Exhibit R4, pp 38, 39 and 53.

21.     Presently, all of the documents that have come to light in the various searches conducted by Departmental officers have been released in full. Mr Zhang asserts that there are significant gaps in the documents that have been identified thus far – he points to five emails that have not been found and to six interactions that would be expected to require the generation of documents[30]. All but one of these purported gaps relate to communications in 2006, 2007 and 2008. Those communications include:

(a)two emails from Mr Zhang to the Skilled Migration Section of the Department, specifically addressing Mr Speldewinde and Ms Harrison, on 16 January 2007 and 24 March 2007;

(b)three emails from the Skilled Migration Section to Mr Zhang on 25 January 2007, 26 March 2007 and 12 September 2008;

(c)communications between the former Minister for Immigration and Mr Speldewinde in the Skilled Migration Section concerning the drafting of a response to Mr Zhang’s letter to the former Minister on 15 December 2006;

(d)communications between Mr Speldewinde and Ms Harrison in the Skilled Migration Section relating to the drafting of a response to Mr Zhang’s email to Mr Speldewinde on 16 January 2007;

(e)communications between the Department of Prime Minister and Cabinet and the former Minister for Immigration in respect of Mr Zhang’s letter to the Prime Minister dated 7 July 2007;

(f)communications between the former Minister for Immigration and Mr Speldewinde concerning the drafting of a response to Mr Zhang’s letter to the Prime Minister dated 7 July 2007; and

(g)communications between Mr Speldewinde and Ms Frances Pritchard-Gordon, in the Ministerial Correspondence Section, concerning the annotation on file 0708/01209 as reported by Mr Hetherington[31].

[30] The Applicant’s Further Submissions, 22 August 2011 at [2] and [3].

[31] Exhibit R1 at [9].

The one remaining alleged gap concerns “Response to a Character Checks request on the Applicant made by the Department of Immigration from an organisation whose postal address was GPO Box 2175, Canberra ACT 2601”[32].

[32] The Applicant’s Further Submissions at 3(1).

22.     There are a number of things to say about these matters. Departmental officers are required to comply with the Secretary’s Recordkeeping Policy issued on 16 December 2009[33]. One would expect records of communications between Departmental officers in the Skilled Migration Section to be retained in accordance with the Records Authority. These records could reasonably be expected to be retained in the relevant system within the Systems Catalogue. Considering the nature of Mr Zhang’s correspondence with Departmental officers and Ministers and the evidence of Mr Reay, Ms Selvadoss, Mr Hetherington and Ms Harrison, the relevant systems would appear to be TRIM, ICSE, ExecCorro (Previously PCMS), Resolve and possibly the local G-drive of the Skilled Migration Section. Ms Harrison conducted a search of the Skilled Migration Section G-drive and she found no records of relevance. Each of the remaining systems was searched by Ms Selvadoss, in the first instance. Subsequently Ms Sarangaya and Ms Vella conducted further searches. Mr Hetherington conducted a supplementary search of the ExecCorro system and identified documents that were not returned by earlier searches. All documents and records identified in these searches have been released in full.

[33] Exhibit R5.

23.     I am not able to determine with certainty why Ms Selvadoss’ search of the ExecCorro system did not identify documents that Mr Hetherington identified when he searched that system. It appears, however, that the ExecCorro system is a new system that replaces the previous PCMS system and, by her own account, Ms Selvadoss was not familiar with the new system. In all likelihood, even though she obtained assistance from another officer, her lack of familiarity with the ExecCorro system may have rendered the search deficient or defective to the extent that no relevant documents were found.

24.     There is no evidence that records of the kind presently in issue would be retained on any other system within the Systems Catalogue. Mr Zhang asserts that it is necessary to search each and every system of the Department. But, to my mind, that would exceed what is reasonable. It is plain enough from a cursory review of the names of the systems recorded in the Systems Catalogue that the vast majority of systems have no relevance to records and documents of the kind Mr Zhang has requested. To search each of the 138 systems operated by the Department for documents of this kind would, in all likelihood, be an exercise in futility that would require the allocation of time, resources and costs without good reason.

25.     On the evidence of Ms Selvadoss, Ms Harrison and Mr Hetherington, I am reasonably satisfied that each of the relevant systems has been searched at least once using Mr Zhang’s name as a search criterion. That being so, it is difficult to comprehend why any further search of those systems using Mr Zhang’s name would yield a different result. Furthermore, to my mind, it is not necessary or reasonable to require additional searches of other systems in the Systems Catalogue to be conducted in respect of the communications to which Mr Zhang has directed attention in his submissions. There is no evidence to suggest that a relevant document that has not been found already would exist in any of those systems.

26.     With regard to the issue Mr Zhang has raised concerning the ‘character check’ document (T9 folio 106), it is tolerably clear that the request pertained to a security check for Mr Zhang that was made by the Immigration Section of the Australian High Commission in Singapore on 26 July 1996[34]. Mr Zhang asserts that no response to this request has come to light. Ms Selvadoss has given evidence that “there are no further documents ‘in response’ to the security check that have not been released to Mr Zhang”[35]. I accept her evidence that the document at T9 folio 105 is the same as the document she identified as folio 9 in file F95/139701. This document has been released in full. It is clear enough that the document was issued by the Criminal Investigation Department of the Government of Singapore on 31 July 1996. The circumstances that caused this document to be created are not clear, but it can be inferred on temporal grounds at least that the document was brought into existence in response to a request from Australian authorities concerning Mr Zhang, probably in the context of a visa application assessment process then underway. If that inference is correct, the Singaporean document may represent one component of the security check requested by the Australian High Commission in Singapore.

[34] T9 folio 106.

[35] Exhibit R6, Affadavit of Susan Selvadoss, 20 April 2011 at [16].

27.     I am reasonably satisfied that the relevant Departmental systems for the retention of records relating to the assessment and grant of a permanent resident visa under the skilled migration program have been searched in response to Mr Zhang’s request and for the purposes of these proceedings.

28.     Whether any further steps to find related documents can reasonably be taken is moot. Of course, it is necessary to consider any evidence that suggests additional documents may exist in the Department’s holdings that may be found if further steps are taken.

29.     Mr Zhang maintains that he has been under continuous surveillance for many years since 1995. The evidence on which he relies to support this contention is his own. He informed me that his work colleagues and neighbours say things to him and about him to others that confirm their involvement and the involvement of the Australian Federal Police and the Department. Mr Zhang has made extensive written notes about these alleged comments. In the course of the hearing, Mr Zhang made allegations about a work colleague, Dawn Ross. Ms Ross was called to give evidence, which she did. She denied any knowledge of the matters Mr Zhang put to her concerning comments he alleges she made concerning two false signatures in relation to his immigration and in respect of his citizenship. Mr Zhang adduced no probative evidence in support of his contentions concerning surveillance and harassment and the alleged involvement of the Department.

30.     Mr Zhang’s allegations about surveillance and harassment are troubling because it is very clear that he staunchly believes them to be true, even though his belief is informed by his own perceptions, without objective support. Mr Zhang has persisted over many years to seek relief from the persecution he perceives from various instruments of the Commonwealth, including Ministers, Departments and the Australian Federal Police. It is not for me to determine whether or not Mr Zhang’s perceptions of surveillance and harassment are well-founded, although I have seen no evidence that would support any such conclusion. My task is simply to consider whether all reasonable steps have been taken to find documents of relevance within the scope of Mr Zhang’s request and whether additional documents exist or cannot be found. For this purpose I must consider any evidence concerning the likelihood that additional documents of relevance may exist within the Department’s holdings and, if so, whether there are further reasonable steps that could be taken to find them.

31.     Having carefully considered Mr Zhang’s evidence and his assertions and extensive submissions, I am not persuaded that the Department is likely to have within its record holdings any document pertaining to his alleged surveillance. Mr Zhang’s allegations concerning the involvement of the Department in activities of that kind have no firm basis in evidence. His evidence and the evidence of Ms Ross does not establish the likelihood that any document exists within the Department’s holdings concerning or relating to Mr Zhang’s alleged surveillance. I so find. While I understand Mr Zhang’s concern about the difficulty of bringing relevant evidence to light about the matters he has raised, it is not reasonable to require the Department to undertake searches for documents that have not been found to exist.

32.     I am reasonably satisfied that all reasonable steps have been taken to find documents that are within the scope of Mr Zhang’s request. I do not accept Mr Zhang’s assertions that documents exist within the Department’s holdings concerning his alleged surveillance; I have found to the contrary. If any additional documents of relevance do exist within the Department’s holdings, concerning the communications to which I have referred for example, and I cannot be certain that they do not, I am reasonably satisfied that those documents cannot presently be found. I am not satisfied that any further reasonable steps can be taken or are justified to find such documents. The evidence of the searches conducted by Departmental officers satisfies the test under section 24A of the Act and Mr Zhang’s request in respect of any further documents may properly be refused.

33.     For these reasons the decision under review must be varied to the extent that document ‘folio 9’ of file F95/139701 is not exempt.

34.     Before concluding it remains to observe that the manner of the Department’s response to Mr Zhang’s request, and the thoroughness of the initial searches that were conducted, is less than exemplary. One can understand Mr Zhang’s frustration at the initial results he obtained from the Department. No good reason has been advanced why only one file was identified in the initial searches that were conducted. Similarly, no reasonable explanation has been provided why the subsequent searches conducted by Ms Selvadoss and others in the Freedom of Information Access Team failed to identify documents that were within the Department’s ExecCorro system. These are matters of concern for the Department to consider in relation to the management of its obligations and responsibilities under the Act. It should not be necessary for a dispute under the Act to come before the Tribunal before adequate searches are conducted.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:         .......................[sgd].........................................................
  H. Choi (Associate)

Dates of Hearing                   26 May and 22 August 2011
Date of Decision                   9 September 2011
Representative for the Applicant              Self-represented

Solicitor for the Respondent  Ms A. Linacre, Clayton Utz