Decision and reasons for decision of Rocelle Ago, General Manager Freedom of Information Case Management

Delegate of the Australian Information Commissioner for the purposes of s 55K of the Freedom of Information Act 1982

Freedom of Information - Respondent to process request following removal of practical refusal reason claim

1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the deemed refusal decision of the Department of Home Affairs (the Department) of 6 July 2023, regarding which the Department submitted a practical refusal reason applied. I substitute my decision that a practical refusal reason does not exist.
2. Within 30 days of this decision:
   • the Department must process the applicant's request and notify the applicant of its decision no later than 30 days after it receives this decision.[1]
   • the Department must advise whether it has fully implemented my decision.

1. This decision sets aside the deemed access refusal decision of the Department in circumstances where the Department initially submitted but no longer maintains a practical refusal reason exists.

1. On 6 June 2023, the applicant applied to the Department for access to all documents about specified visa applications and correspondence with various bodies.
2. On 6 July 2023, the Department was deemed to have refused the applicant's request under s 15AC of the FOI Act (a 'deemed refusal' decision).
3. On 23 November 2023, the Department provided the applicant with a s 24AB notice stating that it intended to refuse the request under s 24AA(1)(a)(i) of the FOI Act on the grounds that a practical refusal reason exists, as processing the request would substantially and unreasonably divert the resources of the Department from its other operations.
4. On 27 November 2023, the applicant revised the scope of their request.
5. On 28 November 2023, the Department made a purported decision to refuse the applicant's revised request under s 24AA(1)(a)(i) on the basis that processing the request would amount to a substantial and unreasonable diversion of resources from the Department's other operations. The Department's purported decision has been taken as submissions in this IC review.
6. On 29 November 2023, the applicant sought IC review of the Department's deemed refusal decision under s 54L of the FOI Act.
7. During the course of the IC review, the parties agreed to process a revised scope of the request to include the applicant's departmental file and relevant portal system printouts excluding personal information of third parties and the names of departmental officers.
8. In an IC review of an access refusal decision, the Department bears the onus of establishing that their decision is justified or that I should give a decision adverse to the IC review applicant (s 55D(1)).
9. Based on the information before me, I am satisfied that the practical refusal reason no longer exists.
10. The Department must now process the applicant's request and notify the applicant of its decision within 30 days of receipt of this decision.

General Manager, Freedom of Information Case Management

Delegate of the Australian Information Commissioner for the purposes of s 55K of the Freedom of Information Act 1982

If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Review Tribunal (ART). The ART provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the ART must be made within 28 days of the day on which the applicant is given the IC review decision (see s 18(1) of the Administrative Review Tribunal Act 2024 and rule 5(3) of the Administrative Review Tribunal Rules 2024). An application fee may be payable when lodging an application for review to the ART. Further information is available on the ART's website (www.art.gov.au) or by telephoning 1800 228 333.

Making a complaint to the Commonwealth Ombudsman

If you believe you have been treated unfairly by the OAIC, you can make a complaint to the Commonwealth Ombudsman (the Ombudsman). The Ombudsman's services are free. The Ombudsman can investigate complaints about the administrative actions of Australian Government agencies to see if you have been treated unfairly.

If the Ombudsman finds your complaint is justified, the Ombudsman can recommend that the OAIC reconsider or change its action or decision or take any other action that the Ombudsman considers is appropriate. You can contact the Ombudsman's office for more information on 1300 362 072 or visit the Commonwealth Ombudsman's website at http://www.ombudsman.gov.au.

If you would like access to the information that we hold about you, please contact FOIDR@oaic.gov.au. More information is available on the Access our information page on our website.

[1] On the question of the processing deadlines that now apply, see Fletcher and Prime Minister of Australia [2013] AICmr 11 [33] - [38].