23 April 2021
Mr. Jaswinder Singh
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:  FA 21/03/00028-R1
File Number:   OBJ2021/7309
Dear Mr Singh
Decision on Internal Review – Freedom of Information Act 1982
I refer to your correspondence dated 19 March 2021 in which you requested that the
Department of Home Affairs (the Department) review its decision on access to documents
dated 19 March 2021 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:
Q1: The total number of 489 & 491 visa holders - including Secondary- are currently
not in Australia into visa subclasses.?

Q2: The total number of 489 visas was expired, while these visa holders were
outside Australia in the past six months?
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Original Decision on access dated 19 March 2021
On 19 March 2021, the Department made its original decision on the request. The
Department conducted reasonable searches and found no documents that fell  within  the
scope of your original request. As such, a decision was made under section 24A of the Act
to refuse access to the documents sought.
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Request for Internal Review
On 19 March 2021, you requested the Department to review its decision dated 19 March
2021. The terms of your review request were as follows:
I am writing to request an internal review of the Department of Home Affairs'
handling of my FOI request 'Figure of 489 and 491 visa holders outside Australia'.

1
Casselden Place 2 Lonsdale Street Melbourne VIC 3001
GPO Box 241 MELBOURNE VIC 3001 • Telephone: 131 188 • • www.homeaffairs.gov.au

I have requested the information about how many 489 and 491 visa holders, which
are outside Australia, but my request hasn't completed and got a reply department
do not have information. Last year, I requested the same information I got the
requested document and how it can be possible that the department does not have
figures of visa holders.
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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.
5
Internal review decision
I  have decided to vary the original decision of the Department dated 19 March 2021 and
replace it with a decision:
•
that one document is within the scope of the following part of your request:
Q1: The total number of 489 & 491 visa holders - including Secondary- are
currently not in Australia into visa subclasses?
•
to release that document in full.
I  have affirmed the Department’s original decision to refuse the remainder of your request
under section 24A of the FOI Act.
I  have provided the reasons for my decision below.
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Internal review decision: searches for documents within scope
I  have reviewed the searches undertaken by the Department in its original decision. I have
determined that further reasonable searches for documents could be 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 relevant to your request.
Additional searches for documents
The additional searches undertaken by the Department for further documents within the
scope of your request involved enquiries with  the Department’s Immigration  and Visa
Statistics Section.
As the responsible business area has previously advised that the requested by you was
not held in discrete form in existing documents, the enquiries sought to determine:
•
the extent of data held by the Department on its computer systems
•
whether the Department is able to produce a document containing the information
sought by you from this data
•
the processes involved in producing a document.

2

Outcomes of searches: documents produced
As a result of its enquiries, the Department has determined that it holds further information
relevant to the terms of part 1  of your request on its  computer systems, and is  able to
produce the following document from its systems pursuant to section 17 of the FOI Act:
•
Visa holders for subclasses 489 Skil ed - Regional (Provisional) and 491 Skil ed
Work Regional (Provisional) as at 1/03/2021 where client location is Outside
Australia – 1 page
The information was held on the Department’s computer systems on by the Department on
26 February 2021, when the Department received your request for access.
Outcomes of searches: documents unable to be produced
In relation to part 2 of your request, the responsible business are of the Department further
advised as follows:
•
the Department’s ICSE database holds information that indicates whether a client
holds a 489 visa that expired in the last six months and whether the client is outside
Australia; however this information is only available by viewing individual client
records
•
the Department is unable to use its existing reporting functions to identify all holders
of 489 visas whose visas expired in the relevant timeframe and who are located
offshore, which would be necessary to enable a document to be produced
•
identifying the relevant data and producing the document would involve the following
tasks:
o
reviewing the capabilities of existing ICSE tables to obtain data
o
reviewing current DB2 tables that could be used to extract the data
o
reviewing the links between the ICSE tables and current DB2 tables
o
finding a primary data item to link the tables to
o
reviewing the business rules for the tagging and deriving of data from ICSE
and incorporating any existing relevant code
o
writing new code (which on the surface would be complex) and validating this
new code
o
extracting the data
o
ensuing that only the latest data was captured by the code
o
validating the data by manually checking it on ICSE, which would involve
reviewing the visa grant and cease dates of each client, along with their entry
and departure dates
•  producing the document using the steps described above would take a minimum of
120 hours (three weeks).
Accordingly, the Department has not produced a document corresponding to the following
part of your request:
Q2: The total number of 489 visas was expired, while these visa holders were
outside Australia in the past six months?

3

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Reasons for decision: 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
under section 17 of the FOI Act.
Whether section 17 of FOI Act applies to request

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 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 [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 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 material.

4

Having  considered the response provided by the business area as  indicated 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 the code.
As indicated above, the responsible business area of the Department has advised that the
process of writing and verifying the code would be complex and would involve a significant
amount of work. The process involved in validating the data – involving the manual checking
of the data – also involves an extraordinary step, one which  the Department considers is
necessary given that the data would have been extracted from the writing of new code.
I further note that paragraph 2.33 of the FOI Guidelines provides that the Department is not
required to create a new  document in  response to a request for access, except in limited
circumstances when the information is stored on the agency’s computer system, and when
section 17 of the FOI Act applies to the information.
As  the Department is unable to  use its  computer systems to create a new  document
containing all information relevant to your request, and any document that it could produce
from its computer systems would not be produced using the ‘ordinary use’ of its computer
systems, I  have accordingly found that the obligation to produce a document under section
17 does not apply in this instance.
The Department therefore maintains its  position that a  discrete document containing the
information does not exist, and the obligation to produce a document under section 17 does
not apply to your request. I have accordingly refused part 2 of your request under section
24A of the FOI Act.
8
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

5

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.
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Contact
Should you wish to discuss my decision, please do not hesitate to contact via email at
xxx.xxxxxxx@xxxxxxxxxxx.xxx.xx.

Jack
Position No. 11307
Authorised Decision Maker
Department of Home Affairs

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Document Outline