23 July 2024
Kei
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 24/04/00446
File Number:
FA24/04/00446
Dear Kei,
Freedom of Information (FOI) request – Access Decision
On 6 April 2024, the Department of Home Affairs (the Department) received a request for access
to document under the
Freedom of Information Act 1982 (the FOI Act).
The purpose of this letter is to provide you with a decision on your request for access under the
FOI Act.
1
Scope of request
You have requested access to the following document:
In this query, I respectfully seek a comprehensive list of all agreements and memoranda of
understanding (MOUs) signed by Australia with other nations, including Migration 5 partner
nations, pertaining to the exchange of biometric and biographic immigration data derived
from visa and/or residency permit applicants from said nations (rather than Australia).
2
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 document or to amend or annotate records.
PO Box 25 Belconnen ACT 2616 • xxx@xxxxxxxxxxx.xxx.xx • www.homeaffairs.gov.au
3
Relevant material
In reaching my decision I referred to the following:
• the terms of your request
• the document relevant to the request
• the FOI Act
• Guidelines published by the Office of the Information Commissioner under section 93A
of the FOI Act (the FOI Guidelines)
• consultation responses from third parties consulted in accordance with the FOI Act
• advice from Departmental officers with responsibility for matters relating to the document
to which you sought access
4
Document in scope of request
In accordance with section 17 of the FOI Act, the Department has 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 6 April 2024
when your FOI request was received.
Attachment A is a schedule which describes the relevant document and sets out my decision in
relation to each of them.
5
Decision
The decision in relation to the document in the possession of the Department which fall within
the scope of your request is as follows:
• Release one document in part with deletions
6
Reasons for Decision
Detailed reasons for my decision are set out below.
Where the schedule of documents indicates an exemption claim has been applied to a document
or part of document, my findings of fact and reasons for deciding that the exemption provision
applies to that information are set out below.
6.1 Section 37 of the FOI Act - Documents Affecting Enforcement of Law and
Protection of Public Safety
Section 37(2)(b) of the FOI Act provides that a document is exempt from disclosure if its
disclosure would, or could reasonably be expected to disclose lawful methods or procedures for
preventing, detecting, investigating, or dealing with matters arising out of breaches or evasions
of the law the disclosure of which would or could reasonably likely to, prejudice the effectiveness
of those methods or procedures.
I consider that part of the document would, or could reasonably be expected to disclose lawful
methods or procedures for preventing or detecting breaches or evasions of the law and that
disclosure would, or would reasonably likely to, prejudice the effectiveness of those methods or
procedures.
It is noted that the Department’s role includes managing the security and integrity of Australia's
borders. The Department leads the management of risks to Australia's border in close
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collaboration with other government agencies, including State and Federal law enforcement
agencies. As such, the Department's role includes law enforcement functions.
The disclosure of information within these documents would be reasonably likely to impact on
ongoing investigative methodology and relationships both domestically and internationally that
support Australian government investigative capabilities. The release of this information would
prejudice the effectiveness of those methods or procedures, assisting endeavours to evade them
and thereby reducing the ability of the Department and other law enforcement agencies to protect
the borders of Australia.
I have decided that this information is exempt from disclosure under Section 37(2)(b) of the FOI
Act.
6.2 Section 47E of the FOI Act – Operations of Agencies
Section 47E(d) of the FOI Act provides that documents are conditionally exempt if disclosure
would, or could reasonably be expected to, have a substantial adverse ef ect on the proper and
efficient conduct of the operations of an agency.
I consider that the disclosure of the parts of documents marked ‘
s47E(d)’ would, or could
reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct
of the operations of the Department.
Managing the security and integrity of Australia's borders is integral to the operations of the
Department. Any prejudice to the effectiveness of the operational methods and procedures used
in undertaking that role would result in a substantial adverse effect on the operations of the
Department.
Any disclosure resulting in the prejudice of the effectiveness of the Department’s operational
methods and procedures would result in the need for this Department, and potentially its law
enforcement partners, to change those methods and/or procedures to avoid jeopardising their
future effectiveness.
I have decided that parts of the documents are conditionally exempt under section 47E(d) of the
FOI Act. Access to a conditionally exempt document must generally be given unless it would be
contrary to the public interest to do so. I have turned my mind to whether disclosure of the
information would be contrary to the public interest, and have included my reasoning in that
regard below.
6.3 The public interest – section 11A of the FOI Act
As I have decided that parts of the document are conditionally exempt, I am now required to
consider whether access to the conditionally exempt information would be contrary to the public
interest (section 11A of the FOI Act).
A part of a document which is conditionally exempt must also meet the public interest test in
section 11A(5) before an exemption may be claimed in respect of that part.
In summary, the test is whether access to the conditionally exempt part of the document would
be, on balance, contrary to the public interest.
In applying this test, I have noted the objects of the FOI Act and the importance of the other
factors listed in section 11B(3) of the FOI Act, being whether access to the document would do
any of the following:
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(a)
promote the objects of this Act (including all the matters set out in sections 3 and
3A)
(b)
inform debate on a matter of public importance
(c)
promote effective oversight of public expenditure
(d)
allow a person to access his or her own personal information.
Having regard to the above I am satisfied that:
•
Access to the document would promote the objects of the FOI Act.
•
The subject mat er of the document may have a general characteristic of public
importance.
•
No insights into public expenditure wil be provided through examination of the
document.
•
You do not require access to the document in order to access your own personal
information.
I have also considered the following factors that weigh against the release of the conditionally
exempt information in the document:
•
Disclosure of the parts of the documents that are conditionally exempt under section
47E(d) of the FOI Act could reasonably be expected to prejudice law enforcement
functions and, as a result, the ability of the Department to protect Australia's borders. I
consider there to be a strong public interest in ensuring that the ability of the
Department to conduct its law enforcement functions is not compromised or prejudiced
in any way. I consider that this would be contrary to the public interest and that this
factor weighs strongly against disclosure.
I have also had regard to section 11B(4) which sets out the factors which are irrelevant to my
decision, which are:
a)
access to the document could result in embarrassment to the Commonwealth
Government, or cause a loss of confidence in the Commonwealth Government
b)
access to the document could result in any person misinterpreting or misunderstanding
the document
c)
the author of the document was (or is) of high seniority in the agency to which the
request for access to the document was made
d)
access to the document could result in confusion or unnecessary debate.
I have not taken into account any of those factors in this decision.
Upon balancing all of the above relevant public interest considerations, I have concluded that the
disclosure of the conditionally exempt information in the documents would be contrary to the
public interest and it is therefore exempt from disclosure under the FOI Act.
7
Legislation
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 a copy.
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8
Your review rights
Internal Review
You do not have the right to seek an internal review of this decision. This is because section
54E(b) of the FOI Act provides that, when an agency is deemed to have refused an FOI request
under section 15AC of the FOI Act, the applicant does not have the right to seek an internal
review of the deemed decision.
The Department was deemed to have refused your request under section 15AC of the FOI Act
because it did not make this decision within the statutory timeframes for the request.
While the Department has now made a substantive decision on your request, section 15AC of
the FOI Act continues to apply to your request, which means that any request you make for
internal review wil be invalid.
Information Commissioner Review
You can instead request the Australian Information Commissioner to review this decision. If you
want to request an Information Commissioner review, you must make your request to the Office
of the Australian Information Commissioner (OAIC) within 60 days of being notified of this
decision.
You can apply for an Information Commissioner review at: Information Commissioner Review
application form on the OAIC website.
If you have already applied for an Information Commissioner review, there is no need to make
a new review request. The OAIC wil contact you shortly to give you an opportunity to advise
whether you wish the review to continue, and to provide your reasons for continuing the
review.
You can find more information about Information Commissioner reviews on the OAIC website.
9
Making a complaint
You may make a complaint to the Australian Information Commissioner if you have concerns
about how the Department has handled your request under the FOI Act. This is a separate
process to the process of requesting a review of the decision as indicated above.
You can make an FOI complaint to the Office of the Australian Information Commissioner
(OAIC) at: FOI Complaint Form on the OAIC website.
10 Contacting the FOI Section
Should you wish to discuss this decision, please do not hesitate to contact the FOI Section at
www.homeaffairs.gov.au.
Yours sincerely,
[Electronically signed]
Simon
Position No. 60107817
Authorised Decision Maker
Department of Home Affairs
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