Consideration
37 In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, Brennan CJ, Toohey, McHugh and Gummow JJ said of persons such as the Departmental officers and the delegate:
a court should not be "concerned with looseness in the language … nor with unhappy phrasing" of the reasons of an administrative decision-maker. The Court continued [Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287]: "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error."
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:
"The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."
(emphasis added, footnotes omitted)
38 In Knowles v Secretary, Department of Defence (2021) 287 FCR 348 at 357-358 [52]-[53], Collier, Logan and Charlesworth JJ, in affirming the decision of Snaden J, held that under APP 12, an APP entity, such as the Department, had to respond to requests within 30 days but did not have to provide the information sought within that time period. Nonetheless, they held that any request had to be dealt with within a reasonable time.
39 In Privacy Commissioner v Telstra Corporation Ltd (2017) 249 FCR 24 at 36 [63]-[64], Kenny and Edelman JJ, with whom Dowsett J agreed, held that "in every case it is necessary to consider whether each item of personal information requested, individually or in combination with other items, is about an individual". They said that this was an evaluative exercise that depended upon the facts of each individual case.
40 Here, the delegate referred to the Department's finding that it had conducted a search for the information that Ms Skiba had requested, namely, any tax invoices that met her particular description, and that the search had resulted in no such documents being found. In other words, the delegate concluded, based on the Department's statement about the search that it had conducted for the documents described in Ms Skiba's request of 11 June 2020, that it had no documents that met that description. On that basis, the delegate concluded, logically and clearly, that there was nothing in the Department's failure to produce any document that answered her request which could be characterised as an act or practice that interfered with Ms Skiba's privacy. The delegate's conclusion was simply that the Department had searched for, and been unable to find, any such document.
41 Ms Skiba sought to characterise the Department as somehow having to ask itself whether in searching for documents that answered the description in her request it was doing so under, or in accordance with, APP 12 or in accordance with what she characterised was "an administrative arrangement". She reasoned that, because the Department released information to her under an administrative arrangement and not in response to her request under APP 12.1 made on 11 June 2020, it had failed to respond to that request in accordance with APP 12.1.
42 The difficulty with Ms Skiba's argument is that it ignores the reality that the Department conducted a search for the documents that she had described in her request and responded that the result of its search was that it was not able to locate any document that met her description. But, the Department had found another document, being the 22 January invoice, that did not meet her request, but which the Department was willing to provide to her under the administrative arrangements.
43 In my opinion, reading the delegate's reasons fairly and also reading the earlier reasons of the Departmental officers, it is obvious that the delegate was satisfied that the Department had conducted a search with the purpose of ascertaining whether it could find documents that met the precise description in Ms Skiba's request of 11 June 2020, but was unable to locate any.
44 While the tax invoices produced by APM on 18 June 2020 in response to Ms Skiba's request, other than the 22 January invoice, would allow an inference to be drawn, in the ordinary course, that the Department must have received some such documents, there is nothing in the material before me to show that the Department did otherwise than what the delegate was satisfied it did; namely to conduct a search for the documents that she requested.
45 Ms Skiba's insistence on labelling the search as being "under the Privacy Act", "under APP 12.1" or "under an administrative arrangement" involves an irrelevancy. The question is whether the Department in fact searched for the documents that met the description in her request that she made under APP 12.1. If the answer to a properly conducted search for any documents that met the description in her request was that no such document was located, then it follows that, first, the request has been complied with but failed to locate any of the information sought and, secondly, the delegate was entitled to be satisfied, for the purposes of s 41(1)(a), that there was no act or practice capable of being characterised as an interference with Ms Skiba's privacy.
46 Nor is there any substance in Ms Skiba's argument that the delegate made an error in stating that the Department was not required to make a decision under the Privacy Act. The evaluation of whether a particular piece of information meets the description in a request under APP 12.1 may require consideration about whether information is "about an individual", as Kenny and Edelman JJ discussed in Telstra 249 FCR at 36 [63]-[64]. Here, Ms Skiba's request for documents was pellucid and easily capable of objective evaluation. Either, the Department had or did not have tax invoices that included her name and contained references to reimbursements received by APM from the employment fund general account. If, as a matter of objective fact, the Department found after its search no such invoices, as so described, there was nothing that the Department had to produce in answer to Ms Skiba's request under APP 12.1.
47 What APP 12.1 requires is for the APP entity to give the individual access to the personal information about him or her that it holds. If the APP entity does not "hold" that personal information, there is nothing further for it to do. In particular, once the result of the search fails to produce information matching the terms of the request under APP 12.1, it is inconceivable that any decision under the Privacy Act needs to be made about the request. The APP entity has fulfilled its obligation to ascertain whether or not it holds the information. If it transpires, after a reasonable and proper search, that it is unable to locate such information, that is the end of the matter.