9 September 2020
Mr E Ross
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 20/09/00113
File Number:
OBJ2020/28445
Dear Mr Ross
I refer to your email dated 2 September 2020 in which you request access to documents held
by the Department of Home Affairs (the Department) under the
Freedom of Information Act 1982 (the FOI Act).
I am writing to tell you that I intend to refuse your request on the basis that a practical refusal
reason exists. However, before I make a final decision to do this, you have an opportunity to
revise your request to remove the practical refusal reason. This is called a ‘
request consultation
process’. You have 14 days to respond to this notice in one of the ways set out below.
Power to refuse request
Section 24 of the FOI Act provides that if the Department is satisfied that a practical refusal
reason exists in relation to a request, the Department must undertake a consultation process
with you, and if, after that consultation process, the Department remains satisfied that the
practical refusal reason still exists, the Department may refuse to give you access to the
documents subject to the request.
Practical refusal
A
practical refusal reason exists if either (or both) of the following applies:
(a)
the work involved in the processing of the request would substantially and
unreasonably divert the resources of the Department from its other operations
(b)
the request does not satisfy the requirement in section 15(2)(b) of the FOI Act,
which requires you to provide such information concerning the document you are
seeking access to, to enable the Department to be able to identify it.
6 Chant Street Belconnen ACT 2617
PO Box 25 Belconnen ACT 2616 Telephone: 02 6264 1111 Fax: 02 6225 6970 www.homeaffairs.gov.au
Scope of Request
You have requested access to the following:
Please provide the Individualised Assessment Obligations File Notes, Individualised
Assessment Protection File Notes, Enhanced Screening Protection File Notes and
interview transcripts which were conducted for the purposes of individualised
assessment of Australia's non-refoulement obligations for the following instances:
-
During the Operations Sovereign Borders reporting period 01 July 2019 to 31 July
2019 when 5 Sri Lankan nationals were intercepted by the Australian Government at
sea.
-
During the Operations Sovereign Borders reporting period 1 May 2019 to 31 May
2019, when 20 Sri Lankan nationals were intercepted by the Australian Government
at sea.
-
During the Operations Sovereign Borders reporting period 1 December 2017 to 31
December 2017, when 29 Sri Lankan nationals were intercepted by the Australian
Government at sea.
-
During the Operations Sovereign Borders reporting period 1 June 2017 to 30 June
2017, when 6 Sri Lankan nationals were intercepted by the Australian Government
at sea.
-
During the Operations Sovereign Borders reporting period 1 March 2017 to 31 March
2017, when 25 Sri Lankan nationals were intercepted by the Australian Government
at sea.
-
During the Operations Sovereign Borders reporting period 1 August 2016 to 31
August 2016, when 6 Sri Lankan nationals were intercepted by the Australian
Government at sea.
-
During the Operations Sovereign Borders reporting period 1 June 2016 to 30 June
2016, when 12 Sri Lankan nationals were intercepted by the Australian Government
at sea.
-
During the Operations Sovereign Borders reporting period 1 February 2016 to 29
February 2016, when 5 Sri Lankan nationals were intercepted by the Australian
Government at sea.
-
On 19 May 2013 when 86 passengers were intercepted by Australian authorities near
the Cocos (Keeling) Islands.
Reasons for practical refusal
The Department has made a preliminary assessment of the documents that would be captured
by your request.
It is noted that you have requested access to Individualised Assessment Obligations File Notes,
Individualised Assessment Protection File Notes, Enhanced Screening Protection File Notes and
interview transcripts in relation to 194 individuals. On the basis that each individual had each of
these documents, the Department estimates that it would hold up to 776 documents relevant to
your request. It is further noted that the Department has recently processed a request from you
for similar documents relating to 13 individuals, which consisted of 26 documents, comprising a
total of 139 pages. The scope of that request did not include transcripts of interviews. As such,
the Department estimates that it holds up to 776 documents may be captured by your request.
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Whilst the Department has identified that it may hold 776 potentially relevant documents in its
electronic systems, it would take the Department an average of 30 seconds per document to
actually search for and retrieve each of those relevant documents. As such, I estimate that it
would take the Department an estimated
6.5 hours to search for, identify and retrieve the 776
potentially relevant documents from its electronic systems.
In the event that all these documents would actually be relevant to your request, based on an
average of 1 minute per document, a further
12 hours would be required to collate and create
a schedule of the 776 potentially relevant documents.
In the event that the Department was to continue to process your request, a decision would need
to be made on access to those documents. I have based my estimate on the previous request
processed for the same type of documents, and have assessed that each document would be
consist of an average of six pages, and that the decision maker would require at least five
minutes to review and assess each page for relevant exemptions. It is noted that the documents
contain extensive personal information, along with sensitive operational information and the
assessment would require considerable attention to detail. As such, I estimate that it would take
at least
388 hours to complete a decision on access to the documents relating to interview
transcripts only.
As such, a minimum total estimated time in excess of
400 hours would be required to process
your request. This does not account for the time it would take to complete a decision on access
to the documents relating to the other parts of your request.
I note that in
VMQD and Commissioner of Taxation [2018] AATA 4619 (17 December 2018)
Commissioner, SM Puplick commented that:
What constitutes valid practical refusal grounds is thus agency specific and resource
dependent. Nevertheless for any agency, a burden in excess of 200 hours would almost
certainly make the threshold of a rational and objective test.
I am satisfied that the Department would be required to divert significant resources from its
current operations in order to identify, locate and collate the documents held within the
Department, and to make a decision on access to those documents. This diversion would result
in a significant drain on the resources of the area within the Department that would be required
to process this request.
I consider that this would result in this request imposing both a substantial and an unreasonable
diversion of resources of the Department from its other operations and that a practical refusal
reason exists in relation to this request.
Request Consultation Process
You now have an opportunity to revise your request to enable it to proceed.
Under section 24AB of the FOI Act, you have 14 days to do one of the following:
withdraw your request;
make a revised request;
indicate that you do not wish to revise your request.
If you do not do one of the three things listed above during the consultation period (14 days) or
you do not consult the contact person listed below during this period, your request will be taken
to have been withdrawn in accordance with section 24AB(7) of the FOI Act.
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Contact
Should you wish to revise your request or have any questions in relation to this process, please
do not hesitate to contact Alison Smith at xxx@xxxxxxxxxxx.xxx.xx.
Alison Smith
FOI Officer | Freedom of Information Section
FOI and Records Management Branch
Data Division | Strategy & Law Enforcement Group
Department of Home Affairs
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