• Documents or parts of documents released to Mr Lobo by the respondent during the proceedings;
• Document 1 - point 9 on page 1; point 3 on page 2;
• Document 4 - column 2 on page 5; page 6; pro forma (printed) material on pages 13-16 and 18-32;
• Document 27 - rows 4-11 of column 3 (the categories of risk) not including allocated weightings;
• Document 28 - pages 1 and 2 not including allocated weightings;
• Document 29 - whole document.

In all other respects the Tribunal affirms the decision under review:

FREEDOM OF INFORMATION - education and training services for international students - documents relating to the applicant - documents relating to policy - whether documents exempt from disclosure - enforcement of law - operation of agencies - personal privacy - legal professional privilege

Education Services for Overseas Students Act 2000

Freedom of Information Act 1982 ss 22, 37(1)(b), 37(2)(b), 40(1) and (2), 41(1), 42(1)

Ascic v Australian Federal Police (1986) 11 ALN N184

Attorney-General's Department and Australian Iron and Steel Pty Ltd v Cockcroft (1986) 10 FCR 180

Australian Telecommunications Corporation v Colakovski (1991) 29 FCR 429

Department of Health v Jephcott [1985] FCA 370; (1985) 8 FCR 85

Re Anderson and Australian Federal Police [1986] AATA 79; (1986) 11 ALD 355

Re Green and Australian and Overseas Telecommunications Corporation [1992] AATA 252; (1992) 28 ALD 655

Re James and Australian National University (1984) 6 ALD 687

Re McKinnon and Federal Commissioner of Taxation [2001] AATA 871; (2001) 34 AAR 194

Re Murphy and Australian Electoral Commission [1994] AATA 149; (1994) 33 ALD 718

Re Thies and Department of Aviation (1986) 9 ALD 454

Searle Australia Pty Ltd v Public Interest Advocacy Centre and Department of Community Services and Health (1992) 108 ALR 163

1. Philip Lobo is the Principal Administrator of Sydney International College of Business Pty Ltd (SICB). On 12 July 2006, under the Freedom of Information Act 1982 (FOI Act), he sought access to a number of documents held by the respondent concerning SICB and himself. On 21 August 2006 he made a further request for access to documents relating to the risk rating allocated to SICB by the respondent and the basis of the risk rating assessment. The respondent released a number of documents to Mr Lobo and refused to release others. It affirmed its decision on internal review.
2. The respondent released further documents and at the date of the hearing 29 documents or parts of documents, as set out in the schedule, were claimed by the respondent to be exempt from disclosure. Exemption was claimed under the FOI Act on the grounds of irrelevant material (s 22), disclosure of a confidential source (s 37(1)(b)), prejudice to law enforcement methods and procedures (s 37(2)(b)), affecting certain operations of the respondent (s 40), personal privacy (s 41(1)) and legal professional privilege (s 42).
3. The issue before the Tribunal is whether the documents, or parts of documents, to which access has been refused should be released.

HOW ARE EDUCATION AND TRAINING SERVICES TO OVERSEAS STUDENTS IN AUSTRALIA REGULATED?

1. In affidavits sworn on 26 March 2007 (Exhibit R1), 17 July 2007 (Exhibit R2) and 20 July 2007 (Exhibit R3) Mr G. Shaw, Director, Education Services for Overseas Students (ESOS) Provider Support and Compliance, Department of Education, Science and Training (DEST) stated that the provision of education and training services to overseas students in Australia is regulated by the respondent through the Education Services for Overseas Students Act 2000 (ESOS Act) and its National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (National Code) under Part 4 of the ESOS Act. In cooperation with designated regulatory authorities of State and Territory Governments the respondent regulates the education and training sector's involvement with overseas students studying in Australia on student visas. He said that there are currently about 1250 providers registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and that Australia's international education industry contributes $10 billion each year to the economy.
2. Mr Shaw said that the ESOS Act promotes a nationally consistent approach to the registration of providers. It also imposes visa-related obligations on students together with reporting requirements on providers. He noted that the respondent has responsibility to monitor and enforce providers' compliance with the ESOS Act and the National Code by educating providers and students as to their rights and obligations, conducting compliance reviews of providers and taking enforcement action where necessary. Such action includes suspension or cancellation of registration.
3. Mr Shaw described audit and investigative tools and procedures used by the respondent to achieve the objectives of the ESOS Act. The Compliance Monitoring Package includes risk-managed strategies that allow the respondent's staff to focus resources on certain indicators of a provider's compliance with the ESOS Act. The Risk Matrix is designed to summarise information and rank providers using specified categories of risk of possible breaches of the ESOS Act or the National Code. The matrix allocates a confidential indicative rating to providers. This assists in prioritising the allocation of the respondent's resources to enable investigation of providers who may be at greater risk of breaching the Act. This investigation is carried out through monitoring compliance visits by DEST officers, who aim to visit about 5-10 per cent of registered providers each year.

1. Mr Shaw said that SICB was registered under the ESOS Act in 2002 (Document 1). On 2 October 2002 an article in The Australian newspaper alleged that Mr Lobo had misrepresented his academic qualifications. Internal departmental emails commencing on 11 November 2002 sought legal advice about a media enquiry concerning SICB and Mr Lobo (Document 23). Copies of complaint letters were sent to the Migration Review Tribunal (Document 25) and the then Department of Immigration and Multicultural Affairs (Document 26), referring to the article in The Australian. In December 2002 legal advice was obtained within DEST about a proposed notice to produce information and documents to be served on SICB (Documents 20, 21, and 22). On 11 December 2002 a further allegation was made that SICB had lost a substantial sum of money. SICB's membership of a tuition assurance scheme had been cancelled and it had obtained membership of another scheme. During the period from March to August 2003 a series of documents was generated in relation to an investigation by DEST's National Investigations Unit (NIU) as to whether Mr Lobo was a fit and proper person to be a provider of international education services (Documents 12-19).
2. The outcome of the investigation was that in August 2003 there was insufficient evidence to substantiate any allegation that Mr Lobo was not a fit and proper person (Document 12), and an NIU running sheet (Document 24) relates to the investigation. On 29 November 2005 the then Department of Immigration and Multicultural Affairs provided a document (Document 11) in relation to the functions of the two Departments concerning the ESOS Act and immigration law.
3. On 10 January 2006 a student complained to DEST about SICB (Documents 6, 7, 9 and 10), and DEST replied on 12 January 2006 (Document 8). A DEST computer record dated 17 February 2006 reflects these events (Document 5).
4. On 21 February 2006 DEST officers made a compliance monitoring visit to SICB. They utilised a pro forma DEST Industry Regulation & Compliance Monitoring Package (Document 4). On 21 February 2006 DEST wrote to Mr Lobo and provided details of areas where the business was not in full compliance. On 21 March 2006 DEST responded by email (Document 2) to correspondence dated 17 March 2006 (Document 3) concerning a complaint about SICB.
5. Documents 27-29 are internal departmental documents which refer to the Risk Matrix. Document 27 shows the risk matrix rating allocated to SICB by DEST as at 28 August 2006 together with explanatory material relating to SICB. Document 28 is an explanation of the weightings used in the calculation of the risk matrix rating. Document 29 is the Guidelines.
6. The schedule of exempt documents is:

Document entitled 'Checklist- Registering a New Provider (non-exempt)'

Email query on behalf of a student about course duration

Email query on behalf of a student about course duration

Document entitled 'DEST Industry Regulation & Compliance Unit - Compliance Monitoring Package'

CCMS printout of document entitled 'Possible Breach 0106-004' that includes file note about student complaint

parts of line 12; lines 25-32; parts of lines 35-36

Document entitled 'Overseas Student Confirmation - of-Enrolment (CoE)'

parts of lines 21-24; paragraphs 4, parts of paragraphs 5 & 6, paragraphs 7-14, 16-17, 19-23, 25

Minute regarding outcome of NIU investigation of Philip Lobo

parts of lines 5, 7, 14, 16, 22, 24, 27, 29, 31, 32, 38; lines 39-43

Email regarding SICB website, with attachment letter seeking alteration of offending statement displayed on SICB website, containing tracked changes

Email trail and attachments regarding legal opinion about Production Notice

Email trail regarding Production Notice including correspondence with DEST Legal

parts of lines 4, 9, 11, 12, 16, 17, 29, 32-34, and lines 35- 40 of page 2; parts of lines 11, 18-21, 24-25, 28, 32, 34, 37 and 43 of page 3; parts of lines 4-6, 10-12, 15, and 19-20 of page 4; part of line 21 of page 5

Letter re Philip Lobo and his appearance in The Australian newspaper

parts of lines 10 and 28, lines 1-4, 16, 21-28 and 32-34

Letter re Philip Lobo and his appearance in The Australian newspaper

parts of lines 9 and 26; lines 1-4, 15, 20-25 and 30-32

index 3.3; parts of paragraph 2, 3.1, 3.2; page 4, parts of paragraph 3-3.1, paragraph 3.3.2, 3.3.3, 3.3.4 of page 5, pages 6-7; parts of paragraph 3.4 and 4.1 of page 8

DEST: Department of Employment, Science and Training

NEAS: National English Language Training Accreditation Scheme

NSW DET: New South Wales Department of Education and Training

22 Deletion of exempt matter or irrelevant material

(i) not to grant a request for access to a document on the ground that it is an exempt document; or

(ii) that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and

(b) it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:

(c) it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;

the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.

Mr Shaw told the Tribunal that the names of providers of services to overseas students have been deleted from documents 11 and 13 as the information is irrelevant to the FOI requests.

37 Documents affecting enforcement of law and protection of public safety

(1) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

(b) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non-existence of a confidential source of information, in relation to the enforcement or administration of the law;

Mr Shaw stated that this exemption applies to documents or parts of documents 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 24, 25, 26, 27, and 29. He said that release of the material would, or could reasonably be expected to, affect the enforcement of the ESOS Act and the National Code. Mr Shaw explained that the material relates to information provided voluntarily and confidentially by informants and includes the names of individuals and representations made to the respondent in the form of emails, reports, files notes and memoranda. He said that disclosure may deter existing or potential informants from providing information to the respondent about breaches of the ESOS Act or the National Code and would undermine enforcement processes.

37 Documents affecting enforcement of law and protection of public safety

(2) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

(b) disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures;

Mr Shaw stated that release of material in documents or parts of documents 4, 11, 12, 16, 17, 18, 24, 27 and 29 would disclose lawful methods or procedures of preventing, detecting, investigating or dealing with breaches of the ESOS Act and National Code, and disclosure of these methods would, or would be reasonably likely to, reduce their effectiveness. He noted that the respondent already offers a range of assistance to providers such as a telephone hotline, visits by staff of the respondent, website information and through the respondent's Provider Registration and International Students Management System (PRISMS) news messages.

16. In relation to Document 4 Mr Shaw said that handwritten notes and annotations made by DEST officers during the compliance visit to SICB should not be released. He stated that the material contains information about evidence and behaviour assessed by DEST when determining whether an education provider has breached the ESOS Act. Mr Shaw noted that disclosure of the information might indicate to dishonest providers how they could manipulate their behaviour during an investigation to conceal deficiencies in their operations.

17. Mr Shaw said that releasing the handwritten notes and annotations could affect the way in which officers approach similar tasks in the future. Officers use the record of a compliance visit to note matters such as observations, thoughts about possible breaches, other lines of enquiry, matters to follow up and general speculation about whether particular evidence could amount to a breach of the ESOS Act or the National Code. He stated that disclosure of this material could inhibit a proper exploration of all aspects of a monitoring visit because a compliance officer may be reluctant to record thoughts in full if those observations and thoughts were to be made public, particularly if some of those matters were not subsequently included in compliance reviews sent to the relevant provider. He said that as the National Code is delegated legislation under the ESOS Act, and provides for sanctions against providers, it constitutes law for the purposes of the FOI Act.

18. Section 40(1) and (2) of the FOI Act provides:

40 Documents concerning certain operations of agencies

(1) Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

(a) prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency;

(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency; or

(2) This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.

Mr Shaw stated that release of material in documents or parts of documents 1, 4, 11, 27, 28 and 29 would or could reasonably be expected to prejudice the effectiveness and outcomes of the respondent's procedures for examining or auditing providers, which would have a substantial adverse effect on the proper and efficient conduct of the respondent's compliance operations. He said that release of the material would allow present and prospective providers to deduce the type of compliance monitoring operations conducted by the respondent and would prejudice the effectiveness of these activities.

19. In relation to Document 4 Mr Shaw stated that disclosure of this information would also have a substantial adverse effect on the proper and efficient conduct of DEST's operations and prejudice the effectiveness of audits conducted by DEST. He noted that in cases where DEST officers have concluded that a provider may have breached one or more provisions of the ESOS Act or the National Code, DEST informs the provider of its findings by way of a written compliance review report sent to the provider following the investigation. Alternatively, in cases involving more numerous and/or serious breaches, the Minister for Education, Science and Training or delegate may give a written Notice of Intention to the provider under the ESOS Act to impose a sanction on the provider's registration. In either case, the provider is given an opportunity to respond to DEST's findings of suspected breaches or to rectify the breaches as directed by DEST. Mr Shaw said that to disclose the pattern of reasoning that may be contained in DEST officers' preliminary written notes about their assessments in the Compliance Monitoring Package could prejudice the effective conduct of future investigations or audit visits (s 40(1)(a) and (d)).

20. On or about 9 October 2006 a document containing parts of the pro forma text of Document 4 was provided to a Senate Estimates Committee in response to questions asked of DEST at a hearing of the Committee. The document (Exhibit GS-2 to Exhibit R2) is publicly available subject to deletions made in the public interest. Under the headings Testing Units Part 1 (pages 13-16) and Testing Units Part 2 (pages 18-32), Document 4 contains the pro forma which lists sections of the ESOS Act and the National Code to be assessed for compliance, and a number of headings providing guidance to compliance officers including boxes to be ticked. Mr Shaw acknowledged that the pro forma, including headings and most of the printed text, was made available to the Senate Estimates Committee.

21. In respect of the public interest test in s 40(2) of the FOI Act, Mr Shaw told the Tribunal that there may be a limited public interest in disclosure as the material may assist SICB in identifying areas of improvement in terms of provider compliance. However he stated that such public interest would be outweighed by the necessity for the respondent to devise alternative compliance and enforcement methods, which would be more resource-intensive and less efficient than current procedures. Alternative methods might also result in more extensive monitoring of providers and additional costs to the providers. Mr Shaw said that there is no public interest in the revelation of preliminary information and tools used by an agency merely to decide whether to conduct a non-public investigation, and on which issues.

(1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).

Mr Shaw stated that release of material in documents or parts of documents 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 25 and 26 would be an unreasonable disclosure of personal information about clearly identifiable individuals. He said that the information was obtained in confidence or in sensitive circumstances and is not public knowledge.

42 Documents subject to legal professional privilege

(1) A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.

Mr Shaw stated that material in documents or parts of documents 15, 20, 21, 22 and 23 contain communications with the respondent's in-house legal counsel and would be privileged from production in legal proceedings on the ground of legal professional privilege.

Document 1: Checklist - Registering a new provider (non-exempt)

24. This document lists standard operational checks that DEST conducts in the process of registering new providers. These checks enable an assessment of whether providers are complying with certain obligations under the ESOS Act and the National Code. The only item for which exemption is claimed is at point 9 on page 1, which is repeated at point 3 on page 2. The deleted material refers to a document that is in the public domain, and any suggestion that a dishonest provider could use this information to thwart the checks by altering its records at the time of registration is mere speculation. In practice the providers would probably expect DEST officers to peruse such information when considering registration of a new provider, and the release of the deleted material is likely to lead to a greater degree of transparency by providers and accuracy of the published information.

25. In this instance there are no real and substantial grounds for an expectation that harm would occur for which, when looked at objectively, acceptable grounds exist (Attorney-General's Department and Australian Iron and Steel Pty Ltd v Cockcroft (1986) 10 FCR 180). Consequently disclosing the information would not, or could not reasonably be expected to, prejudice the effectiveness of tests or audits conducted by DEST (s 40(1)(a)); or have a substantial adverse effect on the proper and efficient conduct of DEST's operations (s 40(1)(d)). The Tribunal finds that Document 1 is not an exempt document.

Document 2: Email query on behalf of a student about course duration

26. This document refers to a complaint by individuals against SICB. The Tribunal accepts Mr Shaw's evidence that in the circumstances of a student's vulnerable position relative to that of a service provider, the identity of a complainant should be protected because the information is provided on an express or implied understanding that the person's identity would remain confidential (Department of Health v Jephcott [1985] FCA 370; (1985) 8 FCR 85). The Tribunal finds that lines or parts of lines 3, 6, 30 and 48-54 constitute material that would reveal the identity of a confidential source of information and that this material is exempt from disclosure (s 37(1)(b)).

27. Parts of lines 35-43; and lines 49-54 contain information that would identify the complainant and the course of study. Section 41 seeks to provide a ground for preventing unreasonable invasion of the privacy of third parties (Re Green and Australian and Overseas Telecommunications Corporation [1992] AATA 252; (1992) 28 ALD 655). In this case, the information constitutes personal information, the disclosure of which would be unreasonable in the circumstances (Australian Telecommunications Corporation v Colakovski (1991) 29 FCR 429). Taking into account the student's vulnerable position relative to that of a service provider and that the deletion of the personal information does not detract materially from the applicant's understanding of the released material, the Tribunal finds that disclosure of parts of lines 35-43; and lines 49-54 would involve the unreasonable disclosure of personal information about complainants and that this material is exempt from disclosure (s 41).

Document 3: Email query on behalf of a student about course duration

28. This document refers to the complaint described in Document 2. For the same reasons the Tribunal finds that lines or parts of lines 7, 16 and 35-41 constitute material that would reveal the identity of a confidential source of information and that this material is exempt from disclosure (s 37(1)(b)). The Tribunal finds that disclosure of parts of lines 21-29 would involve the unreasonable disclosure of personal information about complainants and that this material is exempt from disclosure (s 41).

Document 4: Document entitled DEST Industry Regulation & Compliance Unit- Compliance Monitoring Package

29. This document contains information about the evidence and behaviour assessed by DEST when determining whether an education provider has breached the ESOS Act. The deleted information in column 3 of page 5 and under the heading Notes on page 23 contains material that would identify students who were sampled during the compliance visit. The Tribunal finds that disclosure of this material would involve the unreasonable disclosure of personal information about an individual and that this material is exempt from disclosure (s 41).

30. In relation to guidance to compliance officers contained in the pro forma on page 5 under the heading Pre-visit prisms review and student sample file selection and the sub-heading Student sample file selection, column 2 of the pro forma gives examples of situations involving student files, where the compliance officer may insert the name of individuals as appropriate.

31. A reasonable expectation of prejudice is to be decided in the circumstances of each case. In Cockcroft the words could reasonably be expected to prejudice were discussed. At 190 Bowen and Beaumont JJ stated:

...they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, [to expect the particular conclusion to follow].

The Tribunal takes into account that the disclosed material on page 5 of the document already describes some of the steps to be taken by compliance officers, including updating the Risk Matrix. In respect of the material claimed to be exempt, the Tribunal notes that examples of categories of student file selections that follow are for the guidance of compliance officers and do not appear to be an exhaustive list. Disclosure of these examples would probably assist providers in preparing for compliance visits, and the Tribunal is not persuaded that it is reasonable to conclude that disclosure would prejudice the effectiveness of the methods or procedures of DEST (s 37(2)(b)) or prejudice the effectiveness of audits by DEST (s 40(1)(a)).

32. The word prejudice in s 40(1)(a) and s 37(2)(b) does not impose quite as high or strict a standard as substantially adversely effect (Re James and Australian National University (1984) 6 ALD 687). It follows that the Tribunal finds that the disclosure would not have a substantial adverse effect on the conduct of its operations (s 40(1) (d)). For these reasons the Tribunal finds that column 2 of page 5 of the deleted material is not exempt from disclosure.

33. Page 6 provides guidance to compliance officers regarding documentation. This information was made public when it was disclosed to the Senate Estimates Committee. It contains a general reminder to compliance officers and there is no justification for claiming exemption. For these reasons the Tribunal finds that page 6 of the deleted material is not exempt from disclosure.

34. Although there is no substantial difference between the written notes/annotations made by the compliance officers during the compliance monitoring visit and the review report sent to SICB (Exhibit R5), the Tribunal accepts the evidence from Mr Shaw that disclosure of the handwritten notes/annotations may cause officers to be less candid in their assessment of providers during visits or alter their note-taking behaviour. This may prejudice the effectiveness of the visits and may reveal the interim or draft thoughts of compliance officers, which might change when the final compliance report is prepared.

35. For these reasons the Tribunal finds that disclosure of the handwritten notes/annotations contained on pages 5, 8-9, 13-16, 18-24 and 27-32 would disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of breaches or evasions of the ESOS Act and National Code, the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures, so the material is exempt from disclosure (s 37(2)(b)). The Tribunal also finds that disclosure would, or could reasonably be expected to, prejudice the effectiveness of procedures or methods for the conduct of audits by DEST and is exempt from disclosure (s 40(1)(a)).

36. In Re Thies and Department of Aviation (1986) 9 ALD 454 at 463 the Tribunal held that a substantial adverse effect in s 40(1)(d)

...connotes an adverse effect which is sufficiently serious or significant to cause concern to a properly informed reasonable person.

In Ascic v Australian Federal Police (1986) 11 ALN N184 Muirhead J stated that substantial adverse effect includes loss or damage that is in the circumstances, real or of substance and not insubstantial or nominal. In applying these principles the Tribunal finds that disclosure of the material would have a substantial adverse effect on the proper and efficient conduct of DEST's operations and is exempt from disclosure (s 40(1)(d)).

37. In relation to the printed (pro forma) material on pages 13-16 and 18-32, the Tribunal takes into account that most of this material was made public when it was disclosed to the Senate Estimates Committee. It lists relevant sections of the ESOS Act and the National Code that providers will be scrutinised against during compliance visits, and provides guidance and a checklist to officers when assessing providers against each section. The Tribunal does not accept that disclosure of the printed material would inhibit the work of compliance officers. The relevant sections and their requirements (columns 1 and 2) are known to the providers. The remaining columns are for guidance and contain questions that are asked of the providers.

38. In view of the Tribunal's findings that handwritten notes/annotations made by compliance officers are exempt from disclosure, the Tribunal concludes that disclosure of the printed material would assist providers in preparing for visits, and may also make the visits more efficient because the providers are more likely to have the relevant information available. The Tribunal does not accept that disclosure of the printed material alone would enable a dishonest provider to manipulate the information sought by DEST. For these reasons the Tribunal finds that the printed material on pages 13-16 and 18-32 is not exempt from disclosure.

Document 5: CCMS printout of document entitled Possible Breach 0106-004 that includes file note about student complaint

39. The Tribunal finds that disclosure of parts of lines 12, 35 and 36; and lines 25-32 would reveal the identity of a confidential source of information (s 37(1)(b)) and would involve the unreasonable disclosure of personal information about an individual and that this material is exempt from disclosure (s 41).

40. The Tribunal finds that disclosure of the complete document would reveal the identity of a confidential source of information and that this material is exempt from disclosure (s 37(1)(b)). The Tribunal also finds that disclosure of the complete document would involve the unreasonable disclosure of personal information about an individual and that this material is exempt from disclosure (s 41).

41. The Tribunal finds that disclosure of the complete document would reveal the identity of a confidential source of information and that this material is exempt from disclosure (s 37(1)(b)). The Tribunal also finds that disclosure of the complete document would involve the unreasonable disclosure of personal information about an individual and that this material is exempt from disclosure (s 41).

42. The Tribunal finds that disclosure of parts of lines 4 and 6; and lines 15-25 would reveal the identity of a confidential source of information and that this material is exempt from disclosure (s 37(1)(b)). The Tribunal also finds that disclosure would involve the unreasonable disclosure of personal information about an individual and that this material is exempt from disclosure (s 41).

Document 9: Document entitled Overseas Student Confirmation-of-Enrolment (CoE)

43. The Tribunal finds that disclosure of parts of line 1; and lines 16-21, 23-29 and 33-34 would reveal the identity of a confidential source of information and that this material is exempt from disclosure (s 37(1)(b)). The Tribunal also finds that disclosure would involve the unreasonable disclosure of personal information about an individual and that this material is exempt from disclosure (s 41).

Document 10: Note for File detailing student complaint

44. The Tribunal finds that disclosure of lines 12-15 and 22-26 would reveal the identity of a confidential source of information and that this material is exempt from disclosure (s 37(1)(b)). The Tribunal also finds that disclosure would involve the unreasonable disclosure of personal information about an individual and that this material is exempt from disclosure (s 41).

Document 11: Adelaide Integrity Branch Information Report

45. This material is part of a data analysis report produced by the Adelaide Skilled Processing Centre's Onshore Graduates Section at the Department of Immigration and Citizenship. The report contains information that may assist the identification of providers of concern. The Tribunal finds that disclosing paragraphs or parts of paragraphs 5, 9 10, 11, 13, 16, 17, 19-23 and 25 might indicate to dishonest providers how they can manipulate their behaviour to conceal deficiencies in their operations. Disclosure would, or could reasonably also be expected to, disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the ESOS Act and the National Code, the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures, so this material is exempt from disclosure (s 37(2)(b)).

46. The Tribunal finds that parts of lines 21-24 of page 1, parts of paragraphs 5, 6 and 10; and paragraphs 7, 12 and 14 relate to other providers and are therefore irrelevant to Mr Lobo's request (s 22). The Tribunal also finds that disclosure of paragraphs 8, 12 and 14 of this material would involve an unreasonable disclosure of personal information about a person, and that this material is exempt from disclosure (s 41).

47. Paragraph 4 contains preliminary conclusions or observations about aspects of SICB's operations. The Tribunal finds that disclosure of the material could affect the way in which officers approach similar kinds of tasks in the future, and would deter other agencies from providing information to the same extent to DEST in the future. Disclosure would also deter DEST investigators from documenting their suspicions and interim assessments, which are a necessary part of DEST's investigative processes. Disclosure would, or could reasonably be expected to, prejudice the effectiveness of procedures or methods for the conduct of audits by DEST and is exempt from disclosure (s 40(1)(a)). The Tribunal also finds that disclosure of the material would have a substantial adverse effect on the proper and efficient conduct of DEST's operations and is exempt from disclosure (s 40(1)(d)).

Document 12: Minute regarding outcome of NIU investigation of Philip Lobo

48. The Tribunal finds that disclosure of the material in parts of paragraphs 9-10 would involve the unreasonable disclosure of personal information about an individual and is exempt from disclosure (s 41). The Tribunal also finds that disclosure of the material in parts of paragraphs 10-12 would reveal the identity of a confidential source of information and is exempt from disclosure (s 37(1)(b)). This source of information is an important component of DEST's compliance activities as it is used to identify providers who may be more likely to be in breach of the ESOS Act or the National Code.

49. Informants provide an important source of information during an investigation. Revealing these sources of confidential information may discourage others from providing information to DEST in similar circumstances. For these reasons the Tribunal also finds that disclosure of the material in part of paragraphs 10-12 would, or could reasonably be expected to, disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the ESOS Act and the National Code, the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures and is exempt from disclosure (s 37(2)(b)).

50. The Tribunal finds that the deleted material in lines 39-43 is irrelevant to Mr Lobo's request as it is about an unrelated matter (s 22). The Tribunal finds that disclosure of parts of lines 5, 7, 14, 16, 22, 24, 27, 29, 31, 32 and 38 would reveal the identity of a confidential source of information and that this material is exempt from disclosure (s 37(1)(b)). The Tribunal also finds that disclosure would involve the unreasonable disclosure of personal information about an individual and that this material is exempt from disclosure (s 41).

Document 14: Email regarding Minute about NIU interview

51. The Tribunal finds that disclosure of parts of lines 6, 19 and 22 would reveal the identity of a confidential source of information and that this material is exempt from disclosure (s 37(1)(b)). The Tribunal also finds that disclosure would involve the unreasonable disclosure of personal information about an individual and that this material is exempt from disclosure (s 41).

Document 15: Email regarding SICB website with attachment letter seeking alteration of offending statement displayed on SICB website, containing tracked changes

52. Page 2 of this document constitutes advice that was provided by a lawyer employed by DEST as part of an investigation into SICB, after DEST noted that SICB's website contained information that was inconsistent with the ESOS Act. The advice came into existence for the dominant purpose of obtaining or giving legal advice, and the Tribunal finds that legal professional privilege applies to the advice and has not been waived, so the material is exempt from disclosure (s 42).

53. The Tribunal finds that disclosure of parts of lines 6, 20, 22, 34-35; and lines 38-41 would reveal the identity of a confidential source of information in relation to the enforcement or the administration of the law and that this material is exempt from disclosure (s 37(1)(b)). The Tribunal also finds that disclosure of lines 38-41 would disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of breaches or evasions of the ESOS Act and National Code, the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures, so the material is exempt from disclosure (s 37(2)(b)).

54. The Tribunal accepts Mr Shaw's evidence that disclosing information of this nature would deter other informants from providing information to the same extent to DEST in the future; and that DEST investigators would be deterred from documenting their suspicions and interim assessments, which are a necessary part of DEST's investigative processes. The Tribunal finds that disclosure of parts of lines 5, 7, 19-21; and lines 23-27 would reveal the identity of a confidential source of information in relation to the enforcement or the administration of the law and that this material is exempt from disclosure (s 37(1)(b)).

55. The Tribunal accepts Mr Shaw's evidence that disclosure of parts of lines 7-9; and lines 11-14 would reveal the identity of a confidential source of information in relation to the enforcement or the administration of the law and that this material is exempt from disclosure (s 37(1)(b)).

56. The Tribunal accepts Mr Shaw's evidence that disclosure of part of line 2 on page 2 would reveal the identity of a confidential source of information in relation to the enforcement or the administration of the law and that this material is exempt from disclosure (s 37(1)(b)).

57. Lines 6 to 10 of this document constitute advice that was provided by a lawyer employed by DEST in connection with the investigation of SICB. The advice came into existence for the dominant purpose of obtaining or giving legal advice, and the Tribunal finds that legal professional privilege applies to the advice and has not been waived, so the material is exempt from disclosure (s 42).

Document 21: Email trail and attachments regarding legal opinion about Production Notice

58. Lines 29-30 of page 2 of this document constitute advice that was provided by a lawyer employed by DEST in connection with the investigation of SICB. The advice came into existence for the dominant purpose of obtaining or giving legal advice, and the Tribunal finds that legal professional privilege applies to the advice and has not been waived, so the material is exempt from disclosure (s 42).

Document 22: Email trail regarding Production Notice including correspondence with DEST Legal

59. Lines 23-24 of page 1 and lines 22-23 of page 3 of this document constitute advice that was provided by a lawyer employed by DEST in connection with the investigation of SICB. The advice came into existence for the dominant purpose of obtaining or giving legal advice, and the Tribunal finds that legal professional privilege applies to the advice and has not been waived, so the material is exempt from disclosure (s 42).

60. Lines 7-10 and 20-33 of page 2 of this document constitute advice that was provided by a lawyer employed by DEST in connection with a response to a media enquiry regarding compliance issues. The advice came into existence for the dominant purpose of obtaining or giving legal advice, and the Tribunal finds that legal professional privilege applies to the advice and has not been waived, so the material is exempt from disclosure (s 42).

61. The Tribunal accepts Mr Shaw's evidence that disclosure of parts of lines 4, 9, 11, 12, 16, 17, 29 and 32-34, and lines 35-40 of page 2; parts of lines 11, 18-21, 24-25, 28, 32, 34, 37 and 43 of page 3; parts of lines 4-6, 10-12, 15, and 19-20 of page 4; and part of line 21 of page 5 would reveal the identity of a confidential source of information in relation to the enforcement or the administration of the law and that this material is exempt from disclosure (s 37(1)(b)). The Tribunal also finds that disclosure of lines 35-40 of page 2 would disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matter arising out of breaches or evasions of the ESOS Act and National Code, the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures, so the material is exempt from disclosure (s 37(2)(b)).

Document 25: Letter re Philip Lobo and his appearance in The Australian newspaper

62. The Tribunal accepts Mr Shaw's evidence and finds that disclosure of parts of lines 10 and 28; and lines 16 and 21-28 would reveal the identity of a confidential source of information in relation to the enforcement or the administration of the law and that this material is exempt from disclosure (s 37(1)(b)). The Tribunal also finds that disclosure of lines 1-4 and 32-34 would involve the unreasonable disclosure of personal information about an individual and that this material is exempt from disclosure (s 41).

Document 26: Letter re Philip Lobo and his appearance in The Australian newspaper

63. The Tribunal accepts Mr Shaw's evidence and finds that disclosure of parts of lines 9 and 26; and lines 15 and 20-25 would reveal the identity of a confidential source of information in relation to the enforcement or the administration of the law and that this material is exempt from disclosure (s 37(1)(b)). The Tribunal also finds that disclosure of lines 1-4 and 30-32 would involve the unreasonable disclosure of personal information about an individual and that this material is exempt from disclosure (s 41).

64. This document shows the rating and assessment of risk allocated to SICB, together with a list of the risk categories used in the Risk Matrix. The Tribunal accepts Mr Shaw's evidence that the rating given to an individual provider assists in prioritising the allocation of investigative resources by DEST; that the rating is used in assessing which providers may be at greater risk of breaching the ESOS Act or the National Code; and that such ratings should remain confidential.

65. As there is no confidential source of information involved in this document, s 37(1)(b) does not apply. In relation to the remaining claimed exemptions the Tribunal finds that disclosure of the summary of risk and the rating in each category would, or could reasonably be expected to, disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the ESOS Act and National Code the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures. There is a reasonable expectation or a real risk of prejudice to the effectiveness of that investigative method or procedure (Re Anderson and Australian Federal Police [1986] AATA 79; (1986) 11 ALD 355) as well as a reasonable expectation of a substantial adverse effect on the proper and efficient conduct of DEST's operations. Therefore the rating in each category and the summary of risk are exempt from disclosure (s 37(2)(b) and s 40 (1)(a) and (d)).

66. In relation to each category of risk weighting in the Risk Matrix the Tribunal finds that disclosure of the categories of risk without the actual allocated weighting would not have a substantial adverse effect on the proper and efficient conduct of DEST's operations (s 40(1)(d)), or would prejudice the effectiveness of procedures or methods for the conduct of audits by DEST (s 40(1)(a)) or DEST's investigative methods or procedures (s 37(2)(b)).

67. In Re Murphy and Australian Electoral Commission [1994] AATA 149; (1994) 33 ALD 718 at 722 the Tribunal held that:

...consistency in decision making depends upon the existence of guidelines and, in the ordinary course of events, such guidelines will be disclosed by the agency as a matter of public record.

In Searle Australia Pty Ltd v Public Interest Advocacy Centre and Department of Community Services and Health (1992) 108 ALR 163 the Federal Court stated that the grounds for a reasonable expectation must not be ones which are merely speculative, imaginable or theoretically possible. Here, the Tribunal does not accept that a dishonest provider would be advantaged or could manipulate its behaviour to conceal perceived deficiencies in its operations if it was aware of the categories of risk on which it was to be assessed. In fact disclosure would be more likely to improve compliance with the ESOS Act and National Code.

68. It follows that the Tribunal finds that disclose would not have a substantial adverse effect on the proper and efficient conduct of DEST's operations (s 40(1)(d)). The Tribunal finds that the respondent's concerns regarding dishonest providers are ill-founded and lack a basis in fact (Re McKinnon and Federal Commissioner of Taxation [2001] AATA 871; (2001) 34 AAR 194). In considering s 40(2) the Tribunal finds that there are no compelling public interest reasons against disclosure. For these reasons the Tribunal finds that the list of categories of weighting in the Risk Matrix are not exempt from disclosure.

69. This document gives a description of each of the categories of weightings listed in Document 27 and repeats the weightings given to SICB. For reasons given in relation to Document 27, the Tribunal finds that the rating in each category is exempt from disclosure (s 37(2)(b) and s 40 (1)(a) and (d)). For reasons given in relation to Document 27, disclosure of the description of each category, without an individual rating, would assist providers to understand the Risk Matrix and would not prejudice DEST in assessing particular providers. Therefore the Tribunal finds that the document (with the exception of the weightings given to SICB) is not exempt from disclosure.

Document 29: Guidelines for populating the Risk Matrix

70. This document contains detailed information about each risk category in the Risk Matrix. Page 2 and part of page 3 outline the purpose of the Risk Matrix and the method of calculating the weighting, and have been released to Mr Lobo. For reasons given in relation to Documents 27 and 28, the Tribunal finds that this document, which does not divulge a rating for a particular provider, is not exempt under s 37(1)(b), 37(2)(b) or 40(1)(a) or (d). On page 8 the final sentence in the paragraph beginning with Sorting data: is relevant to the FOI request when viewed in the context of the complete paragraph, and therefore is not irrelevant to the request under s 22 and is not exempt from disclosure.

71. The Tribunal sets aside the decision under review and substitutes a decision that the following documents or parts of documents are not exempt under the Freedom of Information Act 1982:

• Documents or parts of documents released to Mr Lobo by the respondent during the proceedings;
• Document 1 - point 9 on page 1; point 3 on page 2;
• Document 4 - column 2 on page 5; page 6; pro forma (printed) material on pages 13-16 and 18-32;
• Document 27 - rows 4-11 of column 3 (the categories of risk) not including allocated weightings;
• Document 28 - pages 1 and 2 not including allocated weightings;
• Document 29 - whole document.

In all other respects the Tribunal affirms the decision under review.

I certify that the seventy-one [71] preceding paragraphs are a true copy of the reasons for the decision of:

Dates of hearing: 23 July 2007 and 12 September 2007