UNCLASSIFIED

Our references: FA 13/08/01131; ADF2013/27776

 

To – Mr Steve Peters

via email - [1][FOI #364 email]

 

 

Dear Mr Peters

 

I am writing to you in response to your email of 25 August 2013,
purportedly under the Freedom of Information Act 1982 (Cth) and asking
that the Department of Immigration and Citizenship provide you with the
following:

 

1) How many French citizens have applied for the various working visas
(not counting working holiday visas), during the perion 1 July 2012 to 30
June 2013?

2) [Any documents outlining] cases where visitors on working holiday visas
have extended their stay by converting their visa to a 457 or professional
or other working visa - without leaving Australia to reapply.

3) [Any documents outlining] How many people have been able to stay on in
the way mentioned above; ie by obtaining work visas without the need to
reapply from outside Australia

 The purpose of this email is to advise you that I currently consider the
request to be invalid under the FOI Act. I will explain my reasons in full
below.

 

Requirements of the FOI Act

 

The requirements for a valid FOI request are set out in s.15(2) of the
Act, which provides that:

 

The request must:

 

(a)   be in writing; and

 

(aa) state that the request is an application for the purposes of this
Act; and

 

(b) provide such information concerning the document as is reasonably
necessary to enable a responsible officer of the agency, or the Minister,
to identify it; and

 

(c) give details of how notices under this Act may be sent to the
applicant (for example, by providing an electronic address to which
notices may be sent by electronic communication).

 

The Act envisages that an agency and the applicant will, where necessary
and appropriate, engage in dialogue about the request. The Act also
envisages that there may be instances when an agency will wish to send a
formal legal notice to an applicant, for example, when the agency believes
that it would be a substantial and unreasonable diversion of resources to
process the request or intends to charge the applicant for processing the
request. In addition, the Act provides applicants with review rights which
are activated by the act of the agency ‘notifying’ the applicant of the
decision.

 

In order to engage in this dialogue, the applicant must provide an address
through which the applicant intends to be contactable. It should be an
address through which the agency will be able to write to the applicant
and receive a response to the communication. It must also be an address
through which the agency can reasonably assume that legal notices will be
received, read and responded to by the applicant. This requirement has
been an element of a valid FOI request since the Act was first enacted in
1982.

 

Issues regarding your request

 

Email address

I am not satisfied that the email address you have provided meets the
requirement for ‘details of how notices under this Act may be sent to the
applicant’ (s.15(2)(c) of the Act). In particular, it does not appear to
be an address to which the agency could send a ‘notice’. The address you
have provided appears to be an address for publication of correspondence
on the internet. To be satisfied it is a valid address, I require you to
confirm that you will respond to emails addressed to it.

 

First element of your request

In addition, the first element of your request is invalid as it is a
request for statistics. As advised to you today regarding a mirror request
(FA 13/08/01151) an applicant cannot request information and statistics
under the Act. If the request is found to be valid, the Department will
write further to you about the second and third elements of your request.
 

 

Second and third elements of your request

Finally, the Act requires that the description of the documents requested
allows a responsible officer of the agency to identify the documents
(s.15(2)(b)). I am not satisfied that these two elements meet the
requirements of the Act. However, I will make enquiries with the relevant
business area in the Department to allow me to reach a view on these
elements of your request.

 

Next steps

 

Please confirm that the email address that you have provided is an address
to which the Department can send you notices by close of business Friday
30 August 2013. If you have not provided confirmation by that time, I will
close this request as invalid.

 

Yours sincerely

 

Angela O'Neil
Assistant Director

FOI & Privacy Policy
Department of Immigration and Citizenship
Telephone: (02) 6264 1382
Email: [2][email address]

 

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UNCLASSIFIED

Our references: FA 13/08/01131; ADF2013/27776

 

Dear Mr Peters

 

Thank you for your response and for confirming that the Department may
send notices to this email address.

 

Issue regarding scope

 

As advised earlier, the scope of your request is limited to elements 2 and
3, set out below:

 

2) [Any documents outlining] cases where visitors on working holiday visas
have extended their stay by converting their visa to a 457 or professional
or other working visa - without leaving Australia to reapply.

    

3) [Any documents outlining] How many people have been able to stay on in
the way mentioned above; ie by obtaining work visas without the need to
reapply from outside Australia.

 

As at this point, the Department has not accepted this as a valid request
as I am not satisfied that you have provided sufficient information to
enable a responsible officer of the Department to identify the documents.

 

I note that ‘cases where visitors on working holidays have extended their
stay by converting their visas to…other working visas without leaving
Australia’ may not be a matter that the Department ‘ordinarily’ reports
on. If it isn’t something the Department ‘ordinarily’ reports on, then it
may be a substantial and unreasonable diversion of the Department’s
resources to identify the documents that fall within the scope of your
request.

 

The FOI section is making enquiries with the relevant business area to
confirm whether the documents you have requested can be identified without
it being an unreasonable diversion of the Department’s resources.

 

Yours sincerely

 

Angela O'Neil
Assistant Director

FOI & Privacy Policy
Department of Immigration and Citizenship
Telephone: (02) 6264 1382
Email: [1][email address]

 

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UNCLASSIFIED
 
Our references: FA 13/08/01131; ADF2013/27776
 
Dear Mr Peters
 
I am writing to advise you that I have received advice from the relevant
business area in the Department regarding your request for: 
 

 1. Any documents outlining cases where visitors on working holiday visas
have extended their stay by converting their visa to a 457 or
professional or other working visa - without leaving Australia to
reapply.

 

 2. Any documents outlining how many people have been able to stay on in
the way mentioned above; i.e. by obtaining work visas without the need
to reapply from outside Australia.

 
Advice from relevant business area
 
In relation to the first element of your request, the relevant business
area has advised that it cannot identify documents within the scope of
this request as you have not defined the kinds of documents you are
seeking (eg documents about specific cases, policy documents, or general
reporting). In the event that you are seeking the ‘case-specific
documents’, the business area would need to inspect the individual case
files of all applicants for working  holiday visas to identify the cases
where the working holiday visas have been ‘converted’ to a 457,
professional or ‘other’ working visa without having to leave Australia to
reapply.
 
In relation to the second element of your request, the relevant business
area has advised that the Department does not have any reporting
mechanisms to show how many ‘working holiday visa holders’ have extended
their stay in Australia by moving onto a 457 visa or other professional or
working visas.  The business area has advised that the Department would
need to develop new software to create such a report.
 
Requirements for validity
 
It is a requirement of validity under the Freedom of Information Act 1982
(the Act) that an applicant ‘provide such information concerning the
document as is reasonably necessary to enable a responsible officer of the
agency to identify it’ (s.15(2)(b) of the Act).
 
I am satisfied that the first element of your request does not meet
s.15(2)(b) of the Act because it does not provide sufficient information
about the documents you are seeking to enable a responsible officer to
identify the documents. The current scope is too broad. However, in the
event that you seek documents about specific cases, it is likely that the
request would be refused by the Department as a substantial and
unreasonable diversion of resources.
 
In relation to the second element of your request, I note that an FOI
request must be for documents that exist at the time of the request. Where
an applicant requests a document that does not exist the Act does not
require the Department to create a new document to meet that request. The
exception is where the requested information exists in a database and the
Department can create a document using processes ‘ordinarily’ available
for doing so (s.17(1) of the Act). However, an agency is not required to
comply with s.17(1) if it would be a substantial and unreasonable
diversion of the agency’s resources to do so (s.17(2) of the Act). In
relation to the second element of your request, I note that the Department
would need to create new software to meet the request. This would not be
using processes ‘ordinarily’ available to it. Therefore, I am satisfied
that s.17 of the Act does not apply to your request.
 
Request invalid
 
In light of the advice from the business area and after considering the
application of the Act to your request, I am satisfied that your request
is invalid under the Act and have closed it on the Department’s systems.
 
Yours sincerely
 
Angela O'Neil
Assistant Director
FOI & Privacy Policy
Department of Immigration and Citizenship
Telephone: (02) 6264 1382
Email: [1][email address]
 
 
From: Angela O'NEIL On Behalf Of FOI
Sent: Thursday, 29 August 2013 11:32 AM
To: Steve Peters
Cc: Ashley SMITH; Linda ROSSITER
Subject: TRIM: Re - your request FA 13/08/01131 - French citizens applying
for work (not holiday) visas [SEC=UNCLASSIFIED]
 
UNCLASSIFIED
Our references: FA 13/08/01131; ADF2013/27776
 
Dear Mr Peters
 
Thank you for your response and for confirming that the Department may
send notices to this email address.
 
Issue regarding scope
 
As advised earlier, the scope of your request is limited to elements 2 and
3, set out below:
 
2) [Any documents outlining] cases where visitors on working holiday visas
have extended their stay by converting their visa to a 457 or professional
or other working visa - without leaving Australia to reapply.
    
3) [Any documents outlining] How many people have been able to stay on in
the way mentioned above; ie by obtaining work visas without the need to
reapply from outside Australia.
 
As at this point, the Department has not accepted this as a valid request
as I am not satisfied that you have provided sufficient information to
enable a responsible officer of the Department to identify the documents.
 
I note that ‘cases where visitors on working holidays have extended their
stay by converting their visas to…other working visas without leaving
Australia’ may not be a matter that the Department ‘ordinarily’ reports
on. If it isn’t something the Department ‘ordinarily’ reports on, then it
may be a substantial and unreasonable diversion of the Department’s
resources to identify the documents that fall within the scope of your
request.
 
The FOI section is making enquiries with the relevant business area to
confirm whether the documents you have requested can be identified without
it being an unreasonable diversion of the Department’s resources.
 
Yours sincerely
 
Angela O'Neil
Assistant Director
FOI & Privacy Policy
Department of Immigration and Citizenship
Telephone: (02) 6264 1382
Email: [2][email address]
 

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