IC Review due to Deemed Refusal Decision by Department of Home Affairs - FA 25/08/00805
Dear Office of the Australian Information Commissioner,
OAIC reference number RQ25/06343
Agency reference number FA 25/08/00805
Background:
FOl request made on 08 August 2025
Applicant's agreement to extend the processing period under s 15AA: 7 October 2025
Suspension to processing period to allow for request consultation process: 10 October 2025
I am writing to request an IC review with relevant reference and background noted above because I have yet to receive a final decision from the Department of Home Affairs as at 10 October 2025.
Please let me know if you require any additional information.
Yours faithfully,
Oliver Smith
Thank you for your email which has been received by the Office of the
Australian Information Commissioner (OAIC).
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
Our reference: MR25/02181
By email: [FOI #13894 email]
Receipt of your IC review application
Thank you for your application for Information Commissioner Review (IC
review).
The [1]OAIC service charter sets out the standard of service you can
expect from the Office of the Australian Information Commissioner (OAIC)
and explains how you can assist us to help you.
Information about the Information Commissioner review process is set out
in:
o [2]How we handle an IC review application.
o the [3]Direction as to certain procedures to be followed by applicants
in Information Commissioner reviews issued under s 55(2)(e)(i) of the
FOI Act.
The OAIC is considering a large number of applications. Information about
the OAIC’s IC review caseload and focus areas can be found at [4]Caseload
reports and focus areas.
The OAIC will be in contact with you regarding whether the OAIC is able to
review your application and if so, whether the OAIC has commenced review
of your application. The respondent agency or minister may also engage
with you directly in relation to your IC review application if we decide
to review its decision.
You may experience long delays as we review your application particularly
if it does not involve an issue within the OAIC’s focus areas. The OAIC is
not able to provide substantive updates on the progress of your
application and is unable to accommodate requests to expedite matters.
You may wish to contact the agency that dealt with your FOI request to
attempt to resolve the matter. Agencies are required to deal with FOI
requests in accordance with the [5]FOI Guidelines. These Guidelines may
also assist you to make your submissions in your IC review.
Further information about the IC review process is outlined in [6]Part 10
of the [7]FOI Guidelines.
Yours sincerely,
Office of the Australian Information Commissioner
[8]A blue Intake and Eligibility Branch
background
with white Office of the Australian Information Commissioner
text
AI-generated Sydney | GPO Box 5288 Sydney NSW 2001
content may be
incorrect. P: 1300 363 992
W: [9]Enquiry form
The OAIC acknowledges Traditional Custodians of Country across
Australia and their continuing connection to land, waters and
communities. We pay our respect to First Nations people, cultures
and Elders past and present.
[10]Subscribe to Information Matters
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Our reference: MR25/02181
Agency reference: FA 25/08/00805
Applicant: Oliver Smith
Agency: Department of Home Affairs
By email: [FOI #13894 email]
Your Information Commissioner review application
Dear Oliver,
Why we are writing to you:
I am writing to you to help you make a valid Information Commissioner
review (IC review) application.
On 20 October 2025, you applied for IC review about an access refusal
decision made by the Agency, referenced at the top of this email, under
the Freedom of Information Act 1982 (Cth) (the FOI Act). This was because
you indicated you had not received a decision by the due date.
At this time, we do not have all of the documents we need to progress your
IC review application.
It appears that you are seeking IC review of a decision on an FOI request
that is publicly available on the Right to Know website. At this time, we
are yet to be satisfied that you are the person who made the publicly
available FOI request.
Action required by you by 29 October 2025:
o Please provide a copy of:
o the FOI request you made to the Agency
o the FOI acknowledgement you should have received from the Agency
o any correspondence between you and the Agency about your FOI request
o Please provide a copy of any notification emails sent by the Right to
Know website's administrator about the FOI request, a screenshot of
the 'My requests' page of your account on the Right to Know website
(after you log into your Right to Know account) showing the FOI
request in question. Alternatively, you may wish to upload this
correspondence (potentially with your email address removed) as plain
text on the Right to Know webpage of the FOI request in question and
provide us with confirmation of this.
Participation in IC review process:
You are required to comply with the [1]Direction as to certain procedures
to be followed by applicants in Information Commissioner reviews. If an
applicant fails to comply with a direction of the Information
Commissioner, including the Direction as to certain procedures to be
followed by applicants in Information Commissioner reviews, the
Information Commissioner may in some cases decide not to undertake or
continue to undertake an IC review. The Direction specifically states:
o An application for IC review must be accompanied by a copy of the
agency’s or Minister’s decision (called a s 26 notice) for which
review is sought or, if no decision has been made (for example, when
the agency or Minister is taken to have refused the FOI request
because they have not made a decision within the statutory time
period), a copy of the FOI request [2.14]
o Applicants must respond to requests for information from the OAIC
within the time provided unless there are exceptional circumstances
warranting a longer period to respond. If more time is needed, a
request for an extension of time must be made to the OAIC at the
earliest opportunity within the period provided for response, and no
later than 2 days before that period is due to expire. Requests for
more time must explain the exceptional circumstances that necessitate
additional time and propose a new date for response. Approval of an
extension request is at the discretion of the OAIC [2.22]
o The OAIC expects that applicants and agencies will engage with the IC
review process, with respect and courtesy [2.23]
As such, if you do not provide the documents we need for the IC review
application by 29 October 2025, we intend to close your IC review
application.
Assistance
If you are unable to respond by 29 October 2025, you must request more
time at the earliest opportunity and no later than 27 October 2025.
Requests for more time must explain why you need more time, and you must
tell us when you will be able to provide a response.
Please note: You can withdraw an IC review application at any time. There
is no penalty if you do this. You can also lodge a new FOI request to the
respondent at any time.
If you require assistance regarding this email, please contact us at
[2][email address].
Please quote the reference at the top of this email in all correspondence.
Kind regards,
[3][IMG] Intake and Eligibility Branch
Office of the Australian Information Commissioner
Sydney | GPO Box 5288 Sydney NSW 2001
P: 1300 363 992
W: [4]Enquiry form
The OAIC acknowledges Traditional Custodians of Country across
Australia and their continuing connection to land, waters and
communities. We pay our respect to First Nations people, cultures
and Elders past and present.
[5]Subscribe to Information Matters
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
References
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Dear OAIC - FOI DR,
OAIC reference: MR25/02181; RQ25/06343
Agency reference: FA 25/08/00805
Thank you for your correspondence on 22 October 2025. Please find the requested information below:
1. Copy of the FOI request made to the Agency: publicly available at https://www.righttoknow.org.au/request/c...
2. Copies of all FOI requests to the Agency as well as IC review request to the OAIC under "My requests": publicly available at
https://www.righttoknow.org.au/user/oliv...
If you require any additional information, please do not hesitate to reach out to me.
Yours sincerely,
Oliver Smith
Our reference: MR25/02181
Agency reference: FA 25/08/00805
Applicant: Oliver Smith
Respondent: Department of Home Affairs
By email: [1][FOI #13894 email]
Your Information Commissioner review application
Good morning Oliver Smith,
On 8 August 2025, you made a Freedom of Information request to the
respondent referenced at the top of this email.
On 20 October 2025, you applied for Information Commissioner review (IC
review). This was because you indicated you had not received a decision by
the due date.
On 11 November 2025, the Agency notified the Office of the Australian
Information Commissioner (OAIC) that it has now provided you with a
decision.
As you have now received a decision, the reason for your IC review
application appears to be resolved.
Action required by you before 27 November 2025:
• If the decision has satisfied your request and you no longer require
an IC review, please reply to this email stating ‘I no longer require
an IC review’.
• If you wish to proceed with your IC review application, you must tell
us which parts of the decision you disagree with and why.
Specifically:
◦ what documents you think are missing that relate to your request
◦ which exemptions/redactions you disagree with
Participation in IC review process:
You are required to comply with the [2]Direction as to certain procedures
to be followed by applicants in Information Commissioner reviews. If an
applicant fails to comply with a direction of the Information
Commissioner, including the Direction as to certain procedures to be
followed by applicants in Information Commissioner reviews, the
Information Commissioner may in some cases decide not to undertake or
continue to undertake an IC review. The Direction specifically states:
• An applicant or nominated representative must advise the OAIC if there
are any changes to their contact details as soon as it is possible to
do so. The IC may decide not to undertake a review, or not continue to
undertake a review, if the applicant or their nominated representative
cannot be contacted after making reasonable attempts (s 54W(a)(iii))
[2.13]
• An application for IC review should also:
◦ identify the parts of the decision the applicant wants the
Information Commissioner to review
◦ state why the applicant disagrees with the agency’s or minister’s
decision
◦ identify which documents the applicant considers have been wrongly
refused or which exemptions have been incorrectly applied
◦ if the FOI request has been refused on the ground that it would
substantially or unreasonably divert an agency’s resources or
interfere with the performance of a minister’s functions (ss 24 and
24AA) – specify the reasons why the applicant believes the FOI
request would not have this impact [2.16]
• Applicants must respond to requests for information from the OAIC
within the time provided unless there are exceptional circumstances
warranting a longer period to respond. If more time is needed, a
request for an extension of time must be made to the OAIC at the
earliest opportunity within the period provided for response, and no
later than 2 days before that period is due to expire. Requests for
more time must explain the exceptional circumstances that necessitate
additional time and propose a new date for response. Approval of an
extension request is at the discretion of the OAIC [2.22]
• During an IC review, applicants will be given a reasonable opportunity
to present their case. This generally includes having the opportunity
to comment on relevant, adverse information provided to the OAIC by
other parties [2.26]
• The OAIC expects that applicants and agencies will engage with the IC
review process, with respect and courtesy [2.23]
As such, if you do not provide the information we need for the IC review
application by 27 November 2025, we intend to close your IC review
application.
Assistance
If you are unable to respond by 27 November 2025 you must request more
time at the earliest opportunity and no later than 25 November 2025.
Requests for more time must explain why you need more time, and you must
tell us when you will be able to provide a response.
Please note: You can withdraw an IC review application at any time. There
is no penalty if you do this. You can also lodge a new FOI request to the
respondent at any time.
If you require assistance regarding this email, please contact us at
[3][email address].
Please quote the reference at the top of this email in all correspondence.
Kind regards,
[4][IMG] Charles Bruton
Case Management Support Officer
Office of the Australian Information Commissioner
Sydney | GPO Box 5288 Sydney NSW 2001
E [5][email address]
The OAIC acknowledges Traditional Custodians of Country across
Australia and their continuing connection to land, waters and
communities. We pay our respect to First Nations people,
cultures and Elders past and present.
[6]Subscribe to Information Matters
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
References
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1. mailto:[FOI #13894 email]
2. https://www.oaic.gov.au/freedom-of-infor...
3. mailto:[email address]
4. https://www.oaic.gov.au/
5. mailto:[email address]
6. https://www.oaic.gov.au/engage-with-us/n...
Dear OAIC - FOI DR,
RE: OAIC Reference MR25/02181; Agency Reference FA 25/08/00805.
I request an Information Commissioner Review of the decision of the Department of Home Affairs dated 6 November 2025 relating to FOI request FA 25/08/00805.
The decision should be varied for the reasons below.
1. The Department’s reliance on s 33(1)(b) is incorrect, unsupported, and legally insufficient
The Department claimed that information within the document “was communicated in confidence” by the US and Canada. However:
1.1 No evidence was provided of any confidentiality undertaking
The decision relies only on conclusory assertions:
“There was clear general understanding… the communication would be treated in confidence.” (Decision, p.3)
But:
- No evidence of an actual confidentiality clause was cited.
- No copy of the M5 MOUs or relevant annexes was referenced.
- No explanation was given of which passages were communicated by which foreign authority.
This violates FOI Guidelines [5.29], [5.34], [5.41] requiring agencies to prove a confidential communication, not merely assert it.
1.2 The document itself contradicts the Department’s claim
The released portions show:
- The SOP contains internal analysis, Australian-authored instructions, and operational guidance — NOT foreign-authored confidential communications.
- The structure clearly shows Sections 1–6 were prepared internally by Home Affairs. (See SOP headings, version control, Statement of Expectation, consultation list.
Only small portions reference M5 match categories, which are already publicly known.
1.3 Much of the redacted content is clearly NOT foreign-supplied
Examples:
- Internal workflows
- Identity assessment processes
- Operational guidance
- Australian-specific biometric systems
- Department’s own match interpretation methodology
These cannot possibly have been communicated "in confidence" by a foreign government.
Therefore, the s 33(1)(b) exemption is misapplied. At minimum, large sections must be released.
2. The s 47E(d) exemption is generic and unsupported
The decision uses a standard template paragraph: “Disclosure… could reasonably be expected to prejudice law enforcement functions…” (Decision, p.4). This does not satisfy the legal threshold.
2.1 No specific harm identified
There is no:
- document-specific analysis
- explanation of which passages would cause harm
- evidence of any operational sensitivity
- detail on how disclosure of SOP text (which has already been partially disclosed) would prejudice operations
FOI Guidelines [6.101] require a real and non-speculative harm. The Department has not met the threshold.
2.2 The Department has already released the majority of the SOP
The released content includes:
- the entire purpose
- structure
- match interpretation framework
- identity verification principles
- user roles
- system description (Client Search Portal)
- biometric workflows
- M5 referral procedures
This undermines any claim that further disclosure suddenly becomes operationally harmful.
2.3 The Department failed to consider whether harm could be mitigated by redaction
Under s 22, agencies must release all non-exempt material. Large redactions (pages 6–28 of the SOP) appear excessive, concealing:
- headings
- paragraphs that appear administrative
- structural information
- training examples
- explanatory text
Much of this cannot reasonably affect “the proper and efficient conduct of operations”. This is over-redaction.
3. The search for documents was unreasonably narrow
Only one document was identified. Given the scope of the request (“most current version of internal guidelines or procedures explaining how US/Canada immigration information is used”), it is implausible that:
- program integrity sections,
- identity management,
- case officer training materials,
- integrity risk assessments,
- data exchange SOPs,
- PIC 4020 instructions,
- biometrics team SOPs, or
- Canadian/US refusal-matching SOPs
produce only a single document. The Department’s own SOP (released) proves that multiple business areas are involved (see Consultation list at page 33) and that more than one document must exist across the Department.
The Department’s search was inadequate per FOI Guidelines [3.90]–[3.94].
4. The s 22 redactions improperly remove relevant information
The Department applied s 22 to redact “irrelevant” material, including names of internal sections, internal document references, procedural detail that directly relates to your request
This materially reduces understanding of how refusal/cancellation data from the US/Canada is used, how biometric match levels are interpreted, how international data is incorporated into PIC 4020 assessments, internal safeguards and retention rules
These details fall squarely within scope, and were incorrectly removed.
5. The public interest test was incorrectly applied
The decision states: “The subject matter does not seem to have a general characteristic of public importance.” (Decision, p.4)
There is strong public interest in
- how foreign biometric and refusal data affects Australian visa outcomes;
- the transparency of data-sharing arrangements;
- the integrity and fairness of visa refusal processes;
- how PIC 4020 is informed by foreign refusal data;
- human rights implications of cross-border data exchange.
The public interest test must be reconsidered.
6. Remedies sought
I request that the OAIC:
6.1 Set aside the decision
because exemptions were incorrectly applied and searches inadequate.
6.2 Require fresh searches
including:
- Biometrics and Data Exchange Section
- Caseload Integrity and Logistics
- PIC 4020 policy teams
- Identity and Biometrics Program
- Program Integrity
- Canada–US liaison teams
- International Obligations & Data Exchange sections
6.3 Require partial or full release of all wrongly exempted content
including non-sensitive:
- operational descriptions
- explanatory paragraphs
- decision-making logic
- identity assessment factors
- match-interpretation guidance
- risk mitigation frameworks
- PIC4020 interaction instructions
- retention, accuracy and safeguards information
6.4 Require reconsideration of all s 33 and s 47E(d) claims
with document-specific reasoning and proper harm analysis.
6.5 Require re-release of an appropriately edited document
with minimal redactions.
Please advise if any further information is required. I am willing to provide any clarification requested by the OAIC.
Yours sincerely,
Oliver Smith
Our reference: MR25/02181
Agency Reference: FA 25/08/00805
Applicant: Oliver Smith
Copied to: [1][FOI #13894 email]
Respondent: Department of Home Affairs
By email: [2][email address]
Notification of applicant’s intention to proceed with Information
Commissioner review
Dear FOI Contact Officer,
On 8 August 2025, the applicant lodged an IC review application of a
deemed decision by the agency. On 10 November 2025, the OAIC issued a
Notice of IC review application and a Direction to produce documents.
On 6 November 2025, the Agency made a purported decision providing partial
access to documents relevant to the applicant’s request. This is not a
valid decision as it was not made within the statutory processing
timeframes
The applicant wishes to proceed with the IC review because they contend
there are additional documents within the scope of their FOI request, and
they contest the exemptions applied by the Agency (see attached).
The IC review process will consider the Agency’s reasons for refusing
access and the adequacy of searches conducted by the Agency.
Request for information
Considering the applicant’s submissions, please advise whether the Agency
intends to make a revised decision.
Alternatively, the Agency is required to provide the information that
relate to the applied exemptions and s 24A of the FOI Act as outlined in
[3]Table 3.14 and [4]Annexure A.2 of the [5]Direction as to certain
procedures to be followed by agencies and ministers in IC reviews:
• The original FOI request and any correspondence with the FOI applicant
that modifies the scope of the FOI request
• Copies of correspondence including file notes of relevant telephone
conversations between the respondent and anyone consulted
• A marked up, unredacted copy of the documents at issue where material
claimed to be exempt is highlighted with reference to the exemptions
applied or where s 33 applies, evidence, on affidavit or otherwise,
including by way of submissions, that documents are exempt under ss 33
• Submissions in support of the exemptions claimed, including the
application of s 11B of the FOI Act in relation to conditional
exemptions, in the form prescribed by the Information Commissioner:
see [6]Information Commissioner Reviews.
• If any third parties are notified of the IC review, a copy of the
written notifications under s 54P
• A copy of any document that records searches conducted during the
request process, including if applicable:
◦ Notes kept by individuals conducting searches
◦ Correspondence between the FOI decision maker and individuals who
conducted searches
◦ Any other records of searches or recorded consideration of where to
search
The obligation to engage with the applicant as set out in the Direction
continues to apply.
Please note, the applicant is copied into this correspondence for their
record and reference. No action is required from the applicant at this
time.
You are required to provide this information by 10 December 2025.
Yours sincerely,
[7][IMG] Sarveshcika Yuvaraj (she/her)
Assistant Review Advisor
FOI Case Management Branch
Office of the Australian Information Commissioner
Sydney | GPO Box 5288 Sydney NSW 2001
P 1300 363 992 E [8][email address]
The OAIC acknowledges Traditional Custodians of Country across
Australia and their continuing connection to land, waters and
communities. We pay our respect to First Nations people,
cultures and Elders past and present.
[9]Subscribe to Information Matters
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
References
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1. mailto:[FOI #13894 email]
2. mailto:[email address]
3. https://www.oaic.gov.au/freedom-of-infor...
4. https://www.oaic.gov.au/freedom-of-infor...
5. https://www.oaic.gov.au/__data/assets/pd...
6. https://www.oaic.gov.au/freedom-of-infor...
7. https://www.oaic.gov.au/
8. mailto:[email address]
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