25 August 2021
In reply please quote:
FOI Request : FA 21/02/01000
File Number : OBJ2021/6528
Decision on Internal Review – Freedom of Information Act 1982
I refer to your correspondence dated 14 July in which you requested that the Department
of Home Affairs (the Department) review its decision on access to documents dated 13
July 2021 under the Freedom of Information Act 1982
(the FOI Act).
Scope of original request received 27 April 2021
The scope of your original request for access to documents under the FOI Act was as
1. Documents showing any advice and any directive(s) that has been communicated
to Posts regarding the general processing (i.e. non-case specific) of 309 visas in
the period 01/07/2020 to present.
2. The intranet page that outlines internal policies and procedures for assessing and
making a determination on 309 as well as the individual PDF files associated with
each sub step.
3. A statistical breakdown from 01/01/2020 to current of the number of applications in
calendar days to decision for 309 visa by post and by decision type
4. forecasting/planning for family visa subclass for the 19/20 20/21 21/22 FY
5. A statistical breakdown of 309 applications on hand since 01/07/2020 by country of
passport broken down into number of applications awaiting processing at each
regional processing office and how many applications are yet to be appointed for
The purpose is to il ustrate how applications have been distributed globally based on
specific regional processing issues.
9 Wentworth Street Parramatta NSW 2150
GPO Box 9984 Sydney NSW 2001 • Telephone: 131 881 • www.home affairs.g ov.au
Original decision on access dated 12 May 2021
Documents within scope
The Department identified one document as falling within point 1 of your request
The Department identified that documents within point 2 of your request were publicly
available via LEGEND.com
In accordance with section 17 of the FOI Act, the Department used its computer system to
produce one document that contained information falling within points 3 to 5 of the scope
of your request.
The above document and the data produced in response to points 3 to 5 of your request
were in the possession of the Department on 27 April 2021 when your FOI request was
Decision on access
The original decision maker decided to:
• release one document in full with irrelevant material deleted under section
22(1)(a)(i ) of the FOI Act
• release one document in full
• Refuse access to the publicly available documents
Request for internal review dated 14 July 2021
On 14 July 2021 you requested the Department review its decision dated 13 July 2021.
The terms of your review request were as follows:
I am writing to request an internal review of Department of Home Affairs' handling of
my FOI request '309 processing directives, statistics and procedures.’
The Information provided does not go anywhere near to addressing the questions at
hand. Point number 2 can be excluded from the request as per the decision, however
there has been no effort made to provide the data sets that were requested. In
addition the dingle document released has very little relevance to what was requested.
This request needs to be re addressed and done correctly this time so as the actual
data requested is provided and not just some arbitrary table compiled without any
consideration to the details of the request.
Scope of Internal review
Based on the terms of your internal review in paragraph 3 above, I consider you are
seeking review of:
• the searches conducted by the Department in regard to points 1, 3 4 and 5 in its
original decision, including considerations as to whether documents could be
produced from computer systems pursuant to section 17 of the FOI Act
Based on your submission I do not consider you have requested a review in regards to
• The decision to refuse access to publicly available documents (point 2)
• The decision to exempt parts of one document as irrelevant to your request under
section 22 of the FOI Act
I have therefore not considered these points in the scope of my review.
Authority to make decision
I am an officer authorised under section 23 of the FOI Act to make decisions on requests
for access to documents, including internal reviews.
I have considered:
the terms of your original request
the submission made by you in support of your request for internal review
the searches undertaken in the original decision
information held on departmental systems
advice from officers of the Family Visa Programme who are responsible for the
the FOI Act 1982 and
the Guidelines published by the Office of the Information Commissioner under section
93A of the FOI Act (the FOI Guidelines).
Internal review decision
I have decided to vary the original decision of the Department dated 13 July 2021
(“the original decision”) and have made a fresh decision on your request as follows:
• to release one document in full which contains data requested under point 3 by
providing the subclass 309 visa grants and refusals by posts from 01/01/2020 to
28/02/2021 and to refuse that part of point 3 requesting for the number of calendar
days these applications were pending until grant or refusal date pursuant to section
24A of the FOI Act;
• to refuse in full your request for access under point 5 pursuant to section 24A of the
FOI Act; and
• to affirm the primary decision with respect to the data provided in response to point
4 of your request
that information in regard to point 4 above was released previously and
therefore I am not providing you another copy of that information.
I have provided the reasons for my decision below.
Reasons for internal review decision: searches for documents within scope
I have considered the submissions made by you in relation to your reasons for requesting
an internal review. I have reviewed the searches undertaken by the Department in its
original decision. I have determined that there is a need to confirm if further reasonable
searches for documents could have been undertaken by the Department, including
searches of departmental computer systems.
The Department has therefore conducted further reasonable searches to determine
whether it holds further documents/information within the scope of your request.
Additional searches for documents
The searches undertaken by the Department for further documents within the scope of
your request involved enquiries with the responsible business area of the Department
which in turn conducted further searches of the Departments records management
system and computer based programs in relation to family migration data.
Outcomes of searches
The relevant business area of the Department has advised that:
• In regards to point 1 of your request no additional documents can be located
• In regard to point 4 of your request the table previously provided includes all of the
Family visa streams planning levels for 2021-22 and the previous 2 years
• In regard to points 3 and 5, the Department does not have the data requested readily
available in existing statistics reports and it would require the development of new
code or pivot tables to produce the data. The Department can only provide the
breakdown of the data regarding subclass 309 visa applications in the format
previously provided and in the format now being released under this internal review.
As the information to which you seek access is known to be contained in non-discrete
form in Departmental computer systems, I now give consideration to whether section 17 of
the FOI Act applies to your request.
Whether the Department can produce written document containing information in discrete
Section 17 of the FOI Act applies if:
• the Department could produce a written document containing the information using a
computer or other equipment that is ordinarily available to the agency for retrieving or
collating stored information (s. 17(1)(c)(i)), and
• producing a written document would not substantially and unreasonably divert the
resources of the agency from its other operations (s. 17(2))
In considering whether section 17(1)(c)(i) applies to the request, I am guided by
paragraph 3.207 of the FOI Guidelines, citing the decision of the Full Federal Court in
Collection Point Pty Ltd v Commissioner of Taxation
 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 Courts 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
The relevant Departmental business area has confirmed that information you wish to
access is not available by the ordinary use of the Department’s computer systems. The
business area instructs that it would need to take an extraordinary step to retrieve, collate
and produce a document containing this information. This would involve the writing of new
code and production of new pivot tables.
Having considered the above, I am satisfied that producing the document would not
involve the ‘ordinary use’ of the Department’s computer systems but would involve the use
of an ‘extraordinary step’, namely the reviewing of existing data tables, the writing of code
(equivalent to writing a new program), and the manual verification of the data produced by
I am therefore satisfied that section 17(1)(c) of the FOI Act does not apply to your access
Whether all reasonable steps taken to locate documents
Paragraph 3.88 of the FOI Guidelines notes that the Act is silent on what constitutes ‘all
reasonable steps’ to search for a document, but suggests that the term should be:
‘construed as not going beyond the limit assigned by reason, not extravagant or
excessive, moderate and of such as amount, size or number as is judged to be
appropriate or suitable to the circumstances or purpose’.
Paragraph 3.89 of the FOI Guidelines further provides that, at a minimum, an agency’s
searches for documents should have regard to:
the subject matter of the documents
the current and past file management systems and the practice of destruction or
removal of documents
the record management systems in place
the individuals within an agency or minister’s office who may be able to assist with the
location of documents, and
the age of the documents.
Having considered the searches conducted above, and the outcomes of these searches, I
am satisfied that the Department has undertaken all reasonable steps to locate these
documents. In making this decision, I have taken into consideration:
that the subject matter of your request indicates that the information was unlikely to
be held in discrete documents and is more likely to be held on the Department’s
that the business area consulted was best placed to advise of the Department’s its
capacity to produce documents from the Department’s computer systems that contain
the data requested.
the advice from this business area that the Department was unable to produce a
document in the format you require by the ordinary use of its computer systems.
I have therefore determined that the Department has taken all reasonable steps to find the
documents that fall 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
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.
Section 24A refusal of access to documents that cannot be found or do not exist
Section 24A of the FOI Act provides that the Department may refuse access to a
document when that document cannot be found or does not exist. Before the Department
can make a decision under section 24A, it must be satisfied that it has taken all
reasonable steps to locate relevant documents, including searches of computer systems
to determine whether documents can be produced from these systems in accordance with
section 17 of the FOI Act.
Based on the results of the searches above and advice from the family visa programme I
am refusing in part point 3, and refusing in full point 5 of your request under section 24A of
the FOI Act.
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
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
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)
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.
Should you wish to discuss my decision, please do not hesitate to contact via email at
Electronical y signed
Position Number 60016903
Authorised Decision Maker
Department of Home Affairs