1 December 2020
Fergus Peace
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 20/11/00234-R1
File Number:
OBJ2020/34837
Dear Mr Peace
Decision on Internal Review – Freedom of Information Act 1982
I refer to your correspondence dated 16 November 2020 in which you request that the
Department (the Department) review its decision on access to documents dated 12
November 2020 under the
Freedom of Information Act 1982 (the FOI Act).
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Scope of original request
The scope of your original request for access to documents under the FOI Act was as
follows:
‘- Primary visa applications for subclass 188 (Business Innovation & Investment,
Provisional), by stream and sponsoring state/territory, for each financial year from
2012-13 through to 2019-20
- Primary visa applications for subclass 132 (Business Talent), by stream and
sponsoring state/territory, for each financial year from 2012-13 through to 2019-20
- Primary visa grants for subclass 188 (Business Innovation & Investment,
Provisional), by stream and sponsoring state/territory, for each financial year from
2012-13 through to 2019-20
- Primary visa grants for subclass 132 (Business Talent), by stream and sponsoring
state/territory, for each financial year from 2012-13 through to 2019-20..’
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Original Decision on access dated 12 November 2020
In accordance with section 17 of the FOI Act, the Department used its computer system to
produce one document that contains information that falls within the scope of your
request. The data produced in the document existed in the possession of the Department
on 3 November 2020 when your FOI request was received. The original decision maker
decided to:
• Release one document in full.
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2 Lonsdale Street, Melbourne 3000 VIC
GPO Box 241, Melbourne 3001 VIC • xxx.xxxxxxx@xxxxxxxxxxx.xxx.xx • www.homeaffairs.gov.au
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Request for Internal Review
On 16 November 2020, you requested the Department to review its decision dated 12
November 2020. In your request you stated:
‘I would like to clarify that I would like the table with the total number of
applications/grants for each stream and year, in addition to the sub-total for each
sponsoring state/territory government. This was the format published in response to
previous requests (eg.<https://www.homeaffairs.gov.au/foi/files/2019/fa-190100268-
documents-released.PDF>) and I intended to compare the documents and trend,
which is not possible with the table provided as the state subtotals are frequently
suprressed and show only '<5'.’
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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 departmental records. In
accordance with section 54C(3) of the FOI Act, I have made a fresh decision on your FOI
request.
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Information considered
In reaching my decision, I have considered the following:
• the scope of your request
• the Department’s original decision of 12 November 2020 and the evidence
gathered for that decision
• your submissions in relation to your reasons for requesting an internal review
• the documents falling within the scope of your request
• advice from departmental officers with responsibility for matters relating to the
information to which you sought access
• the FOI Act, and
• the Australian Information Commissioner’s guidelines relating to the
interpretation, operation and administration of the FOI Act (the FOI guidelines).
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Internal Review Decision
I have reviewed your original request and I have considered the submissions made by you
in relation to your reasons for requesting an Internal Review.
I have decided to refuse your request under section 24A of the FOI Act, by way of a
finding that section 17(1) of the FOI Act does not apply.
I have provided the reasons for my decision below.
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Reasons for Internal Review Decision
I have reviewed the documents that fall within the scope of this request and I have
considered the submissions made by you in relation to your reasons for requesting an
Internal Review.
The Department has undertaken additional reasonable searches for documents within the
scope of your request. These searches included enquiries with the relevant business area
to determine whether the Department holds the document you have requested.
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24A Requests may be refused if documents cannot be found, do not exist or have
not been received:
Section 24A of the FOI Act provides that the Department may refuse access to a
document when the Department has taken all reasonable steps to locate the documents,
and the documents cannot be found or does not exist.
As advised above, the Department has conducted additional reasonable searches for
documents within the scope of your request. The searches involved enquiries with the
relevant business area to determine whether the Department held the documents you
seek.
On 19 November 2020 and 30 November 2020 the relevant business area advised that
they do not have resources to restyle data into a different format. The business area also
advised with regards to immigration-specific data and as per current privacy guidelines,
Departmental policy is to mask numbers which are less than five. This departmental policy
was included in the caveats with the document released in the original decision. I have
therefore made the finding that the documents you seek is of a nature not held in discrete,
hard copy format.
Before an agency can refuse a request under section 24A of the FOI Act, section 17 of the
FOI Act provides that the Department must also conduct searches of its computer
systems to determine whether the information is held on those systems, and whether a
written document could be produced from these systems.
I have considered whether the Department is able to produce a written document from
Departmental systems pursuant to section 17 of the FOI Act.
Section 17 of the FOI Act describes circumstances in which an agency may be required to
prepare new documents in response to an FOI request, as follows:
17 Requests involving use of computers etc.
(1) Where:
(c) a request (including a request in relation to which a practical refusal reason exists)
is made in accordance with the requirements of subsection 15(2) to an agency;
(d) it appears from the request that the desire of the applicant is for information that
is not available in discrete form in written documents of the agency; and
(ba) it does not appear from the request that the applicant wishes to be provided
with a computer tape or computer disk on which the information is recorded; and
(e) the agency could produce a written document containing the information in
discrete form by:
3. the use of a computer or other equipment that is ordinarily available to the
agency for retrieving or collating stored information; or
4. the making of a transcript from a sound recording held in the agency;
the agency shall deal with the request as if it were a request for access to a written
document so produced and containing that information and, for that purpose, this Act
applies as if the agency had such a document in its possession.
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(2) An agency is not required to comply with subsection (1) if compliance would
substantially and unreasonably divert the resources of the agency from its other
operations.
I have considered whether section 17(1)(c)(i) of the FOI Act is relevant to your access
request, and am guided on this point by relevant case law.
Paragraph 3.207 of the FOI Guidelines, citing the decision of the Full Federal Court in
Collection Point Pty Ltd v Commissioner of Taxation [2013] FCAFC 67; 95 ATR 334, in
which the Full Federal Court:
…held that the reference in s 17(1)(c)(i) to a ‘computer or other equipment that is
ordinarily available’ means ‘a functioning computer system including software, that
can produce the requested document without the aid of additional components which
are not themselves ordinarily available … [T]he computer or other equipment … must
be capable of functioning independently to collate or retrieve stored information and
to produce the requested document.’ This wil be a question of fact in the individual
case, and may require consideration of ‘the agency’s ordinary or usual conduct and
operations’. For example, new software may be ordinarily available to an agency that
routinely commissions or otherwise obtains such software, but not to an agency that
does not routinely do such things.
In the earlier decision of the Federal Court in Collection Point, the Court found that:
If a new computer program is required to be written to produce the document then a
computer is not being used in a manner that is ordinarily available to the agency because
an extraordinary step is required to be taken.
Both decisions confirmed the earlier view of the Administrative Appeals Tribunal that:
The documents requested by Collection Point were not capable of being produced by
the ATO by the use of a computer, being a use that is ordinarily available to the ATO
for retrieving and collating stored information. Instead, to answer the request, the
ATO would have been required to use a computer in an extraordinary manner, as
compared to the ordinary processes available for the retrieval and collation of such
material.
The relevant Departmental business area has confirmed that information you wish to
access is not available via ordinary use of the Department’s computer systems. The
business area instructs that it does not have the resources to generate the document in
the format requested. I consider it would need to take an extraordinary step in order to
retrieve the data from the computer systems in the format requested. On the advice of the
business area, I am satisfied that the creation of the requested document represents a
‘non-ordinary’ use of a computer by the business area.
I am satisfied that the information you seek is not ordinarily available by use of the
Department’s computer systems. I am therefore satisfied that section 17(1)(c) of the FOI
Act does not apply to your access request.
I have therefore decide that the Department has taken all reasonable steps to find the
document that falls within the scope of the request as it was required to do by section 24A
of the FOI Act, and that:
• a discrete document does not exist
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• the Department cannot produce a written document containing the information by
the use of a computer or other equipment that is ordinarily available, as would
otherwise be required by section 17 of the FOI Act.
On this basis, I refuse your access request under section 24A of the FOI Act.
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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.
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Your Review Rights
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.
10 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 as the relevant agency.
Position No: 60007879
Authorised Decision Maker
Department of Home Affairs
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