17 March 2020
Asher Hirsch
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request: FA 20/01/00660
File Number: OBJ2020/1905
Dear Asher Hirsch,
Freedom of Information (FOI) request - Access Decision
On 17 January 2020 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:
Any documents discussing the likelihood of Safe Haven Enterprise Visa holders meeting
the SHEV pathway requirements. Please include briefings, memos, reports and other
advice. Please exclude email communications. Please limit this request to documents
from 2016 to 2019.
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.
6 Chan Street Belconnen ACT 2617
PO Box 25 Belconnen ACT 2616 • Telephone: 02 6264 1111 • Fax: 02 6225 6970 • 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.
4
Documents in scope of request
The Department has identified 7 documents as falling within the scope of your request.
These documents were in the possession of the Department on 17 January 2020 when
your request was received.
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 7 documents in part with deletions
6
Reasons for Decision
Detailed reasons for my decision are set out below.
Attachment A is a schedule which describes the relevant documents and sets out my
decision in relation to each of them.
6.1 Section 22 of the FOI Act – deletion of exempt material
I have decided to prepare an edited copy of the documents. The grounds upon which the
edited copies of these documents have been prepared are set out in At achment A.
The documents contain both personal and contact details of departmental officers and
other information which can reasonably be regarded as not being relevant to the nature of
scope, being pathway requirements for Safe Haven Enterprise Visa (SHEV) holders.
I have therefore decided that these parts of the documents, which are marked
‘s.22(1)(a)(i )’, would disclose information that could reasonably be regarded as irrelevant
to your request and have prepared an edited copy of the documents, with the irrelevant
material deleted pursuant to section 22(1)(a)(i ) of the FOI Act.
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6.2 Section 47C of the FOI Act – Deliberative processes
Section 47C(1) of the FOI Act provides that a document is conditional y exempt if its release
would disclose deliberative matter, which includes matter in the nature of, or relating to
opinion, advice or recommendation that is obtained for, or prepared for, or recorded for a
consultation or deliberation that has taken place in the course of, or for the purposes of,
the deliberative processes involved in the functions of an agency, a Minister or the
Government of the Commonwealth.
I find that some documents, or parts of the documents, include correspondence that was
developed during a consultative process. The documents in scope include draft documents
or talking points that are intended to guide internal discussions or deliberations about the
policy and operations of a visa program. I find that these types of documents, and other
similar correspondence which record the collaborative notes of a consultative process are
deliberative documents to which section 47C(1) applies.
I have considered whether any exceptions, per section 47C(2), apply to these documents
or parts of documents and I am satisfied that these exceptions do not apply. I find that the
documents are neither operational information for the purposes of section 8A, nor
information that is purely factual.
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.
Accordingly, I find that the documents are conditionally exempt under section 47C(1) 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.
6.3 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 release of the documents would, or could reasonably be expected to,
have a substantial adverse effect on the proper and efficient conduct of the operations of
the Department.
The documents contain information which overviews and may also inform the operation of
assessment processes for the SHEV program. The release of this information into the
public domain may expose parts of the assessment process to undue risks of being
circumvented or undermined.
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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.
Accordingly, I find that the 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.
6.4 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.
Having regard to the above:
• I am satisfied that access to the documents would promote the objects of the
FOI Act.
• I consider that the subject matter of the documents does have the character
of public importance and that there may be broad public interest in the
documents.
• I consider that an insight into public expenditure wil be provided through
examination of the documents.
• I am satisfied that you do not require access to the documents in order to
access your own personal information.
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I have also considered the following factors that weigh against the release of the
conditionally exempt information in the documents:
• Disclosure of the parts of the documents that are conditionally exempt under
section 47E(d) of the FOI Act, which include information about visa
assessment processes and policy may enable applicants to undermine or
circumvent certain processes in the future. This would result in the Department
having to continually change its processes at a cost to the Department. I have
given this the consideration weight and believe that releasing this information
would strongly be contrary to the public interest.
• Disclosure of conditionally exempt information under section 47C(1) could
reasonably be expected to prejudice the ability of the Department to manage
its programs effectively towards the attainment of strategic outcomes. I
consider there to be a strong public interest in the Department being able to
manage its programs as effectively and efficiently as possible and therefore
consider that the release of this information is not in the public interest.
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/Details/C2017C00251.
If you are unable to access the legislation through this website, please contact our office
for a copy.
8
Your Review Rights
Internal Review
If you disagree with this decision, you have the right to apply for an internal review by the
Department of this decision. Any request for internal review must be provided to the
Department within 30 days of you being notified of the decision. Where possible please
attach reasons why you believe a review of the decision is necessary. The internal review
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wil be carried out by an officer other than the original decision maker and the Department
must make a review decision within 30 days.
Applications for review should be sent to:
By email to: xxx.xxxxxxx@xxxxxxxxxxx.xxx.xx
OR
By mail to:
Freedom of Information Section
Department of Home Affairs
PO Box 25
BELCONNEN ACT 2617
Review by the Office of the Australian Information Commissioner
You may apply directly to the Office of the Australian Information Commissioner (OAIC) for
a review of this decision. You must apply in writing within 60 days of this notice. For further
information about review rights and how to submit a request for a review to the OAIC,
please see Fact Sheet 12 "Freedom of information – Your review rights", available online
at http:/ www.oaic.gov.au/freedom-of-information/foi-reviews.
9
Making a Complaint
You may complain to the Australian Information Commissioner about action taken by the
Department in relation to your request.
Your enquiries to the Australian Information Commissioner can be directed to:
Phone 1300 363 992 (local call charge)
Email xxxxxxxxx@xxxx.xxx.xx
There is no particular form required to make a complaint to the Australian Information
Commissioner. The request should be in writing and should set out the grounds on which
it is considered that the action taken in relation to the request should be investigated and
identify the Department of Home Affairs as the relevant agency.
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.
Signed electronically
Position number 60081621
Authorised Decision Maker | Freedom of Information Section
FOI and Records Management Branch
Productivity and Compliance Division | Corporate and Enabling Group
Department of Home Affairs
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