2 December 2024
Oliver Smith
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 24/08/01037
File Number:
FA24/08/01037
Dear Oliver Smith
Freedom of Information (FOI) request – Decision
On 16 August 2024, the Department of Home Affairs (the Department) received a request for
access to documents under the
Freedom of Information Act 1982 (the FOI Act).
The purpose of this letter is to provide you with a decision on your request for access under the
FOI Act.
1
Scope of request
You have requested access to the following documents:
Revised Scope - 26 August 2024
Under the FOI Act, please provide a signed copy of the brief titled “Hamas-Israel conflict - visa
processing update” sent to the Minister for Immigration’s office on 12/12/2023 with the PDR
number: MS23-002455.
Original Scope -12 August 2024
Under the FOI Act, please provide a copy of the brief titled “Hamas-Israel conflict - visa
processing update” sent to the Minister for Immigration’s office on 12/12/2023 with the PDR
number: MS23-002455.
2
Authority to make decision
I am an officer authorised under section 23 of the FOI Act to make decisions in respect of
requests to access documents or to amend or annotate records.
Level 3 -299 Adelaide Street, QLD 4000 www.homeaffairs.gov.au
3
Relevant material
In reaching my decision I referred to the following:
the terms of your request
the documents relevant to the request
the FOI Act
Guidelines published by the Office of the Information Commissioner under section 93A
of the FOI Act (the FOI Guidelines)
advice from Departmental officers with responsibility for matters relating to the
documents to which you sought access
advice from other Commonwealth Departments
4
Documents in scope of request
The Department has identified one document with two attachments, as falling within the scope
of your request. These documents were in the possession of the Department on 16 August 2024
when your request was received.
Attachment A is a schedule which describes the relevant documents and exemption claims in
relation to each of them.
5
Decision
The decision in relation to the documents in the possession of the Department which fall within
the scope of your request is as follows:
Release three documents in part with deletions
6
Reasons for Decision
6.1 Section 22 of the FOI Act – Irrelevant to Request
Section 22 of the FOI Act provides that if giving access to a document would disclose information
that would reasonably be regarded as irrelevant to the request, it is possible for the Department
to prepare an edited copy of the document, modified by deletions, ensuring that the edited copy
would not disclose any information that would reasonably be regarded as irrelevant to the
request.
On 19 August 2024, the Department advised you that its policy is to exclude the personal details
of officers not in the Senior Executive Service (SES), as well as the mobile and work telephone
numbers of SES staff, contained in documents that fall within scope of an FOI request.
I have decided that parts of document marked ‘s22(1)(a)(i )’ would disclose information that could
reasonably be regarded as irrelevant to your request. I have prepared an edited copy of the
document, with the irrelevant material deleted pursuant to section 22(1)(a)(ii) of the FOI Act.
The remainder of the document has been considered for release to you as it is relevant to your
request.
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6.2 Section 33 of the FOI Act – Documents affecting National Security, Defence or
International Relations
Section 33(a)(i) and Section 33(a)(iii) of the FOI Act permits exemption of a document if
disclosure of the document would, or could reasonably be expected to cause damage to the
international relations of the Commonwealth.
For the reasons set out below, I consider that there are real and substantial grounds for expecting
that the disclosure of the documents exempted under section 33(a)(i) would cause damage to
the security of the Commonwealth.
Security
‘Security’ is a concept with a fluctuating content which can depend upon the circumstances as
they exist from time to time.1 ‘Security of the Commonwealth’ is defined in section 4(5) of the FOI
Act as follows
(5)
Without limiting the generality of the expression security of the
Commonwealth, that expression shall be taken to extend to:
(a)
matters relating to the detection, prevention or suppression of
activities, whether within Australia or outside Australia, subversive of,
or hostile to, the interests of the Commonwealth or of any country
allied or associated with the Commonwealth; and …
I also consider that the definition of ‘security’ in the
Australian Security and Intelligence
Organisation Act 1979 (the ASIO Act) is relevant. This view is in accordance with the guidance
provided by
Staats and National Archives of Australia,2 in which Deputy President Forgie found
that it would be ‘consistent with the scheme of regulation established by Parliament to interpret
the word “security” in both the Archives Act and the FOI Act in a way that mirrors its definition in
the ASIO Act’.
The ASIO Act defines ‘security’ as:
(a)
The protection of, and of the people of, the Commonwealth and
the several States and Territories from:
(i)
Espionage
(ii)
Sabotage
(iii)
Politically motivated violence
(iv) Promotion of communal violence
(v)
Attacks on Australia’s defence system; or
(vi) Acts of foreign interference;
Whether directed from, or committed within, Australia or not; and
(aa) the protection of Australia’s territorial and border integrity from
serious threats; and
(b)
The carrying out of Australia’s responsibilities to any foreign
country in relation to a matter mentioned in any of the
1
Church of Scientology v Woodward (1982) 154 CLR 25 at [19].
2 Staats and National Archives of Australia [2010] AATA 531 (16 July 2010) (austlii.edu.au), at [99]
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subparagraphs of paragraph (a) or the matter mentioned in
paragraph (aa).
For a document (or part of a document) to be exempt under s 33(a)(i), I must be satisfied that,
on the balance of probabilities, disclosure would, or could reasonably be expected to, cause
damage to the security of the Commonwealth.
I consider that the disclosure of the information contained within
Document 1.1 is exempt under
s 33(a)(i) as it could cause damage to the security of the Commonwealth by compromising
operational functions.
As such I have decided that parts of the information marked '
s33(a)(i)" in
Document 1.1 is
exempt from disclosure under section 33(a)(i) of the FOI Act.
Section 33(a)(iii)
The phrase 'international relations' has been interpreted as meaning the ability of the Australian
Government to maintain good working relations with other governments and international
organisations and to protect the flow of confidential information between them. The expectation
of damage to international relations must be reasonable in all the circumstances, having regard
to the nature of the information; the circumstances in which it was communicated; and the nature
and extent of the relationship. There must be real and substantial grounds for the conclusion
that are supported by evidence.
I consider that the release of the information marked 's33(a)(iii)' in
Document 1, could reasonably
be expected to cause damage to the Australian Government's international relations.
I am of the view that the disclosure of
Document 1 in Attachment A could reasonably be
expected to inhibit future negotiations between the Australian Government and Palestine.
As such I have decided that the information redacted and marked '
s33(a)(iii)" is exempt from
disclosure under section 33(a)(iii) of the FOI Act.
6.3 Section 47C of the FOI Act – Deliberative Processes
Section 47C of the FOI Act provides that a document is conditionally exempt if its disclosure
would disclose deliberative matter relating to the deliberative processes involved in the functions
of the Department.
‘
Deliberative matter’ includes opinion, advice or recommendation obtained, prepared or
recorded, or consultation or deliberation that has taken place, in the deliberative processes of an
agency.
‘
Deliberative processes’ generally involves “
the process of weighing up or evaluating competing
arguments or considerations”3 and the ‘
thinking processes –the process of reflection, for
example, upon the wisdom and expediency of a proposal, a particular decision or a course of
action.’4
3
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 [18]
4
JE Waterford and Department of Treasury (No 2) [1984] AATA 67
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Documents 1 and 1.1 contains advice, opinions and recommendations prepared or recorded in
the course of, or for the purposes of, the deliberative processes involved in the functions of
Department being:
the approach taken for the processing of visa applications from people declaring
Palestinian citizenship, and
Post-arrival support options for persons from Israel and the Occupied Palestinian
Territories affected by the Hamas-Israel conflict
I am satisfied that this deliberative matter relates to a process that was undertaken within
government to consider whether and how to make or implement a decision, revise or prepare a
policy, administer or review a program, or some similar activity.5
Disclosure of this deliberative information could reasonably be expected to inhibit full and frank
advice from the Department to its Minister, and, as a result, full consideration by the Government
on any potential future consideration of amendments to legislation. Disclosure of some
deliberative information, on which a decision has not yet been taken, could also reasonably be
expected to prejudice consultations with relevant stakeholders.
Section 47C(2) provides that “deliberative matter” does not include purely factual material. I am
satisfied that the deliberative material is not purely factual in nature.
I am further satisfied that the factors set out in subsection (3) do not apply in this instance.
I have decided that the information is conditionally exempt under section 47C of the FOI Act.
Access to a conditionally exempt document must generally be given unless it would be contrary
to the public interest to do so. I have turned my mind to whether disclosure of the information
would be contrary to the public interest, and have included my reasoning in that regard below.
6.4 Section 47E of the FOI Act – Operations of Agencies
Section 47E(d) of the FOI Act provides that documents are conditionally exempt if disclosure
would, or could reasonably be expected to, have a substantial adverse effect on the proper and
efficient conduct of the operations of an agency.
I consider that the disclosure of parts of
Documents 1, 1.1 and 1.2, marked ‘
s47E(d)’ would, or
could reasonably be expected to, have a substantial adverse effect on the proper and efficient
conduct of the operations of the Department.
Any disclosure resulting in the prejudice of the effectiveness of the Department’s operational
methods and procedures would result in the need for this Department, and potentially its law
enforcement partners, to change those methods and/or procedures to avoid jeopardising their
future effectiveness.
Confirming an applicant’s identity through alternative means, rather than a valid passport,
requires the Department to expend additional resources. For instance, it could mean conducting
5
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962
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more extensive identity verification checks, using data-matching tools, or relying on other,
potentially more costly, methods to confirm identity.
If the information about alternative identity verification processes were released, it could
encourage applicants to bypass standard procedures or omit certain documentation, increasing
the complexity and burden on the Department’s operational workflow. This could delay
processing times and potentially lead to risks of identity fraud or misuse of the visa application
system, which would directly impact the efficiency, resource allocation, and integrity of the
Department’s operations.
Furthermore, it could have a substantial adverse effect on the operations of the agency by:
Disrupting operational strategies: If the Department’s prioritisation of grant-ready
applications is disclosed, it could alter how visa applicants or their representatives
approach the process, potentially influencing trends in application submissions, appeals,
or behaviour by applicants in anticipation of certain outcomes.
Compromising the impartiality of the visa processing framework, by revealing details
about criteria or decision-making processes.
Trigger adverse behaviours or reactions: Knowing that refusals may increase for a
specific group could encourage behaviours that complicate the Department’s operational
workload, such as an influx of appeals or rapid surges in applications intended to avoid
perceived restrictions.
Therefore, I have decided that parts of these documents are conditionally exempt under section
47E(d) of the FOI Act. Access to a conditionally exempt document must generally be given
unless it would be contrary to the public interest to do so. I have turned my mind to whether
disclosure of the information would be contrary to the public interest, and have included my
reasoning in that regard below.
6.5 The Public Interest – Section 11A of the FOI Act
As I have decided that parts of the documents are conditionally exempt, I am now required to
consider whether access to the conditionally exempt information would be contrary to the public
interest (section 11A of the FOI Act).
A part of a document which is conditionally exempt must also meet the public interest test in
section 11A(5) before an exemption may be claimed in respect of that part.
In summary, the test is whether access to the conditionally exempt part of the document would
be, on balance, contrary to the public interest.
In applying this test, I have noted the objects of the FOI Act and the importance of the other
factors listed in section 11B(3) of the FOI Act, being whether access to the document would do
any of the following:
(a)
promote the objects of this Act (including all the matters set out in sections 3 and
3A)
(b)
inform debate on a matter of public importance
(c)
promote effective oversight of public expenditure
(d)
allow a person to access his or her own personal information.
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Having regard to the above I am satisfied that:
Access to the documents would promote the objects of the FOI Act.
The subject matter of the documents does have the character of public importance
and that there may be broad public interest in the documents.
Insights into public expenditure will be provided through examination of the
documents.
You do not require access to the documents in order to access your own personal
information.
I have also considered the following factors that weigh against the release of the conditionally
exempt information in the documents:
Disclosure of the conditionally exempt information under section 47C of the FOI Act
could reasonably be expected to prejudice the ability of Departments across
government to provide full and honest advice to stakeholders, and to manage future
policy making processes. I consider that the disclosure of this type of deliberative
material would inhibit the Government’s future deliberation, which is contrary to the
public interest, and this factor weighs strongly against disclosure future proposals to
legislative amendments.
A Ministerial Submission plays an important role in the relationship between a
Department and its Minister. Its purpose is to provide frank and honest advice. It is
inherently confidential between the Department and its Minister and the preparation of
a Ministerial Submission is essentially intended for the audience of that Minister
alone. A precedent of public disclosure of advice given as a part of a Ministerial
Submission would result in:
o concerns existing in the open and honest nature of advice being provided
which may then hinder future deliberations and decision making processes
for the Department and the Government as a whole and
o future Ministerial Submissions being prepared with a different audience in
mind, which would compromise the quality of the advice being prepared
for the Minister.
I consider that the public interest in protecting the process of the provision of free and
honest confidential advice by a Department to its Minister has, on balance, more weight,
than the public interest that might exist in disclosing the deliberative matter.
Endangering the proper working relationship that a Department has with its Minster and
its ability to provide its Minister with honest advice confidentially would be contrary to
the public interest.
Disclosure of the parts of the documents that are conditionally exempt under section
47E(d) of the FOI Act could reasonably be expected to prejudice law enforcement
functions and, as a result, the ability of the Department to protect Australia's borders. I
consider there to be a strong public interest in ensuring that the ability of the
Department to conduct its law enforcement functions is not compromised or prejudiced
in any way. I consider that this would be contrary to the public interest and that this
factor weighs strongly against disclosure.
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I have also had regard to section 11B(4) which sets out the factors which are irrelevant to my
decision, which are:
a)
access to the document could result in embarrassment to the Commonwealth
Government, or cause a loss of confidence in the Commonwealth Government
b)
access to the document could result in any person misinterpreting or
misunderstanding the document
c)
the author of the document was (or is) of high seniority in the agency to which
the request for access to the document was made
d)
access to the document could result in confusion or unnecessary debate.
I have not taken into account any of those factors in this decision.
Upon balancing all of the above relevant public interest considerations, I have concluded that the
disclosure of the conditionally exempt information in the documents would be contrary to the
public interest and it is therefore exempt from disclosure under the FOI Act.
7
Legislation
A copy of the FOI Act is available at https://www.legislation.gov.au/Series/C2004A02562. If you
are unable to access the legislation through this website, please contact our office for a copy.
8
Your Review Rights
Internal Review
You do not have the right to seek an internal review of this decision. This is because section
54E(b) of the FOI Act provides that, when an agency is deemed to have refused an FOI request
under section 15AC of the FOI Act, the applicant does not have the right to seek an internal
review of the deemed decision.
The Department was deemed to have refused your request under section 15AC of the FOI Act
because it did not make this decision within the statutory timeframes for the request.
While the Department has now made a substantive decision on your request, section 15AC of
the FOI Act continues to apply to your request, which means that any request you make for
internal review will be invalid.
Information Commissioner Review
You can instead request the Australian Information Commissioner to review this decision. If you
want to request an Information Commissioner review, you must make your request to the Office
of the Australian Information Commissioner (OAIC) within 60 days of being notified of this
decision.
You can apply for an Information Commissioner review at: Information Commissioner Review
application form on the OAIC website.
If you have already applied for an Information Commissioner review, there is no need to make a
new review request. The OAIC will contact you shortly to give you an opportunity to advise
whether you wish the review to continue, and to provide your reasons for continuing the review.
You can find more information about Information Commissioner Reviews on the OAIC website.
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9
Making a complaint
You may make a complaint to the Australian Information Commissioner if you have concerns
about how the Department has handled your request under the FOI Act. This is a separate
process to the process of requesting a review of the decision as indicated above.
You can make an FOI complaint to the Office of the Australian Information Commissioner
(OAIC) at: FOI Complaint Form on the OAIC website.
10
Contacting the FOI Section
Should you wish to discuss this decision, please do not hesitate to contact the FOI Section at
xxx@xxxxxxxxxxx.xxx.xx.
Yours sincerely,
Michael
Position number 6016694
Authorised Decision Maker
Department of Home Affairs
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