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[2010] AATA 1078
respondent. The application, as maintained after withdrawal of the exemption issues, was dismissed because there was no reviewable decision concerning the documents the applicant sought returned.
2 cited instruments linked from this judgment.
The applicant first challenged the AFP's decisions to withhold or redact some FOI material. He withdrew that challenge at the Tribunal hearing. He then wanted the Tribunal to deal with files he said he had sent to the AFP and had not received back. The Tribunal said it could review the FOI decision, but there was no separate AFP decision about returning those files for it to review. Because the remaining concern was outside the reviewable decision, the Tribunal dismissed the application that remained.
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1,681 words · generated 29/09/2026
In Prefumo and Australian Federal Police [2010] AATA 1078, Louis Prefumo applied to the Administrative Appeals Tribunal (AAT) for review of an Australian Federal Police (AFP) freedom of information decision. His original request sought “All documents in possession of the Australian Federal Police, both at the Canberra and Perth operations centre from 1 November 2009 to 15 January 2010 incl.” (reasons [1]).
The AFP identified 53 relevant documents, totalling 267 folios. It decided to release some documents in full and to withhold or redact parts of others under provisions of the Freedom of Information Act 1982 (Cth), including sections 36(1)(a), 22(1)(a)(ii) and 41(1) (reasons [1]). Prefumo sought internal review of the exemption decisions, and the reviewing officer affirmed the original decision (reasons [2]).
At the Tribunal hearing, Prefumo withdrew the part of his application concerning exemptions under section 42A(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (reasons [4]). His remaining concern was different: he said he had sent the AFP files containing material he had compiled about allegations that his former wife had committed perjury in Family Court proceedings, and wanted those files returned (reasons [5]).
He relied on copies of correspondence referring to files being sent to AFP personnel and the AFP Commissioner (reasons [6]–[9]). The Tribunal accepted that his correspondence raised a matter he wanted addressed, but found no AFP decision about whether the documents should be returned. It therefore dismissed the application as maintained (reasons [11]–[13]; decision).
The central point was the distinction between the decision the Tribunal had been asked to review and the matter Prefumo wanted to pursue after withdrawing part of the case. The original Tribunal application arose from the AFP's FOI decision, including decisions to exempt or partially exempt material. Once Prefumo withdrew the exemption issues, he no longer wanted the Tribunal to review that aspect of the decision (reasons [2]–[4], [12]).
The remaining request was not simply another aspect of the exemption question. Prefumo wanted the AFP to return files he said he had sent to it. The Tribunal said that it could act only within its jurisdiction and required a reviewable decision made through the permitted statutory process. It described itself as not being “a tribunal of general inquiry” (reasons [11]). That statement explains why the Tribunal could not use this FOI review proceeding to investigate or decide a separate dispute about the location or return of the files.
The Tribunal accepted the AFP’s submission that there was “no relevant decision” reviewable in relation to the non-exemption matter (reasons [11]). It also observed that there was no AFP decision that the documents would not be returned. The searches had not produced evidence that the documents were currently held by the AFP, nor evidence of a decision not to return them (reasons [11], [14]). The applicant’s correspondence could support his account that he had sent documents, but it did not itself establish the necessary reviewable decision.
The Tribunal therefore did not decide whether Prefumo had sent the files, whether the AFP had lost them, or whether they ought to be returned. Its conclusion was narrower: those matters could not be determined through this application in the absence of a reviewable decision (reasons [13]).
The judgment does not purport to change the law or establish a new general rule. It applies the jurisdictional limit that the Tribunal identified in the context of this particular FOI review: the Tribunal could review the decision properly before it, but could not determine a different matter for which there was no reviewable decision (reasons [11]–[13]).
Before the hearing, the case included an application for review of the AFP’s FOI decision, including its exemption determinations. At the hearing, Prefumo withdrew the exemption portion under section 42A(1) of the Administrative Appeals Tribunal Act 1975 (reasons [4]). After that withdrawal, the remaining matter was his request about documents he said the AFP had not returned. The Tribunal concluded that this issue did not remain before it as a reviewable matter because no decision had been made concerning those documents (decision).
The judgment refers to section 29(1) of the Administrative Appeals Tribunal Act 1975 in describing the notice that Prefumo had applied for Tribunal review, and to section 42A(1) as the basis for the withdrawal (reasons [1], [4]). It also identifies the FOI exemption provisions involved in the original decision. The reasons do not set out a broader analysis of those provisions, nor do they decide their operation. The exemption issues were withdrawn.
Accordingly, the “after” position in this judgment is procedural rather than a stated change in substantive FOI law: the Tribunal dismissed the remaining application because the matter Prefumo wanted considered did not arise from a reviewable decision in this proceeding.
“We simply are not a tribunal of general inquiry.” (reasons [11])
In plain English, the AAT could not investigate any concern connected with the AFP merely because the concern was raised during an existing review. Its authority depended on the matter falling within the reviewable decision before it.
“It is patent that the respondent has not made a decision not to return the documents...” (reasons [11])
The Tribunal distinguished between a concern that documents had not been returned and an actual AFP decision refusing to return them. On the material before it, the latter had not occurred.
“The result is that this Tribunal cannot on this application deal with a matter which does not properly arise under any reviewable decision.” (reasons [13])
This is the decisive jurisdictional statement. The return issue could not be resolved within this application because it was not attached to a reviewable decision.
“There is an affidavit of Ms Matan sworn on 13 September 2010 showing just how wide and thorough the search has been...” (reasons [14])
The Tribunal noted evidence of extensive searches. It did not, however, determine that the files had never been sent or that the AFP had no further way to locate them. Its observation was that the searches had not established that the files were currently held by the AFP or that a decision had been made not to return them.
The decision section repeats that the application did not remain on foot in the form Prefumo maintained because “no decision was made concerning the documents the applicant seeks.” The supplied text numbers this final decision paragraph as “1”; the reasons paragraphs are separately numbered. This distinction matters when locating the passage.
The reasoning is relevant, on its face, where a person has brought a statutory merits review concerning a particular administrative decision, but then seeks to have the tribunal decide a separate matter that is not itself the subject of a reviewable decision. The judgment is particularly specific to a proceeding that began as review of an FOI decision, where the applicant withdrew the dispute about exemptions and sought instead to have the AFP deal with documents allegedly sent to it.
The case indicates that evidence or correspondence about an underlying concern does not, by itself, turn that concern into a reviewable decision. Here, letters said to show that Prefumo had forwarded files did not establish that the AFP had made a decision refusing to return them (reasons [8]–[11]). The Tribunal's approach was jurisdictional: it asked whether there was a relevant decision it could review, not whether the applicant's account of sending documents was persuasive.
The judgment should not be read more broadly than its stated reasoning. It does not decide what other procedures might exist for an unreturned document complaint, whether a separate decision could later be made, or how the Tribunal’s jurisdiction would apply to different statutory schemes. Those matters were not determined in the supplied reasons.
The supplied judgment contains no discussion of subsequent decisions, and no later treatment is included in the materials provided. It is therefore not possible, on this source alone, to state whether later courts or tribunals have applied, distinguished, followed, or otherwise treated Prefumo.
The decision itself refers to no precedent cases. Its reasoning is expressed through the Tribunal’s understanding of its jurisdiction in this proceeding and its conclusion that there was no reviewable decision concerning the return of the files (reasons [11]–[13]). Any assessment of the judgment’s later precedential treatment would require later decisions not contained in the supplied source.
Several matters were left unresolved because the Tribunal dismissed the remaining application on jurisdictional grounds. First, it did not decide whether Prefumo had in fact sent the particular files to the AFP. It recounted his correspondence and the AFP’s earlier return of files, but made no final factual determination about the complete history of each document (reasons [5]–[10]).
Second, the Tribunal did not determine whether the AFP still possessed any of the files. It recorded that searches had been conducted and that the affidavit described their breadth, while also stating that the searches had not produced evidence that the documents were then located within the AFP (reasons [14]). The judgment therefore does not establish what happened to the files.
Third, it did not decide what process, if any, might address a request for the return or tracing of documents outside this FOI review. Paragraph [14] notes that counsel for the AFP might refer the correspondence to relevant personnel to see whether another way or location could be identified. That was an observation about a possible referral, not a direction to the AFP or a determination of Prefumo’s rights.
Finally, the judgment does not decide the substantive merits of the original FOI exemption decisions. Prefumo withdrew that part of his application, so the Tribunal did not review whether the exemptions were correctly applied (reasons [4], [12]). Any later analysis of those exemption issues would require the relevant decisions and legal sources.
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DECISION AND REASONS FOR DECISION [2010] AATA 1078
The application as maintained by the applicant following withdrawal of that portion of the application relating to issues of exemption be itself dismissed.
Freedom of Information - application for access to documents - withdrawal of application in respect of issues of exemption - whether application continues in respect of documents said to have been supplied by applicant to respondent - no reviewable decision in respect of such documents
All documents in possession of the Australian Federal Police, both at the Canberra and Perth operations centre from 1 November 2009 to 15 January 2010 incl.
I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President, R D Nicholson
The application, as maintained after withdrawal of the exemption issues, was dismissed because there was no reviewable decision concerning the documents the applicant sought returned.