09 September 2020
Mr J Wong
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request: FA 20/05/00191
File Number:
OBJ2020/15362
Dear Mr Wong
Freedom of Information (FOI) request - Access Decision
On 5 May 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:
The number of invitations for each invitation round varies. No information has been
provided to explain why the numbers differ.
For the subclass 189 invitations please provide a copy of:
1. Any documents detailing policy or decision making
processes/guidance/information around how the number of invitations in each
round wil be determined
2. Any documents that show proposed or confirmed numbers for invitation rounds
for the remainder of the 2019-2020 programme year.
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 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 four documents as falling within the scope of part 1 of your
request. These documents were in the possession of the Department on 5 May 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 part 1 of your request is as follows:
• Release two documents in part with deletions
• Exempt two document in full from disclosure
In relation to part 2 of scope, section 24A of the FOI Act provides that the Department may
refuse a request for access to a document if all reasonable steps have been taken to find
the document and the Department is satisfied that the document does not exist.
I am satisfied that the Department has undertaken reasonable searches in relation to part
2 of your request and that no documents were in the possession of the Department on 05
May 2020 when your FOI request was received. As such, I am refusing this part of your
request based on the application of section 24A of the FOI Act.
6
Reasons for Decision
Detailed reasons for my decision are set out below.
My findings of fact and reasons for deciding that an exemption provision applies to any
documents relevant to part 1 of your request are set out below.
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.
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The Department’s 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. Keeping in mind the
Department’s policy, though not guided by it, I have considered the personal details,
including names, business email addresses and phone numbers of officers not in the SES,
as well as the mobile and work telephone numbers of SES officers and I find that these
details can, reasonably, be regarded as irrelevant to the scope and the content of the
documents in scope.
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)(i ) of the
FOI Act.
The remainder of the document has been considered for release to you as it is relevant to
your request.
6.2 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”1 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.’2
The document 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 2019-20 Migration Program Third Quarter Update. 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. 3
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 policy and programs. 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.
1
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 [18]
2
JE Waterford and Department of Treasury (No 2) [1984] AATA 67
3
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962
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Section 47C(2) provides that “deliberative matter” does not include purely factual material.
I have had regard to the fact that “purely factual material” does not extend to factual material
that is an integral part of the deliberative content and purpose of a document, or is
embedded in or intertwined with the deliberative content such that it is impractical to excise
it.4 A factual summary prepared to aid a complex issue may be classed as purely factual
material, but may also be of a character as to disclose a process of section involving
opinion, advice or recommendation. As such, a conclusion which involves a deliberative
process may well prevent material from being purely factual5.
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.
6.3 The public interest – section 11A of the FOI Act
As I have decided that parts of the documents are conditional y 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.
• the subject matter of the documents does not seem to have a general
characteristic of public importance. The matter has a limited scope and, in my
view, would be of interest to a very narrow section of the public.
• no insights into public expenditure wil be provided through examination of the
documents.
4
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 [18]
5
Harris v Australian Broadcasting Corporation and Others (1984) 1 FCR 150
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• 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 in 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.
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.
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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
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 https://www.oaic.gov.au/freedom-of-information/foi-review-process.
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.
Position No 60107941
Authorised Decision Maker
Department of Home Affairs
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