Terrorist Vicken Hovsepian's Visa to Australia
Dear Department of Immigration and Border Protection,
Convicted Terrorist Viken Hovsepian was granted Visa to visit Australia in June 2014.
I am requesting all internal communications outlining how the convicted Armenian terrorist "Viken Hovsepian" was granted visa to Australia.
Yours faithfully,
Pinar Yilmaz
Our references: FA 14/12/01344; ADF2014/46412
Dear Pinar Yilmaz
I am writing to you in response to your email dated Friday 26 December
2014, under the Freedom of Information Act 1982 (the FOI Act), asking that
the Department of Immigration and Border Protection (the department) to
provide you with a copy of the following document:
Convicted Terrorist Viken Hovsepian was granted Visa to visit Australia in
June 2014.
I am requesting all internal communications outlining how the convicted
Armenian terrorist "Viken Hovsepian" was granted visa to Australia.
The purpose of this email is to advise you that I consider the request may
be invalid under the FOI Act; and to seek your advice on whether you have
the consent of the third party you are seeking information about. I will
explain my reasons in full below.
Requirements of the FOI Act
The requirements for a valid FOI request are set out in section 15(2) of
the FOI 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 FOI Act envisages that an agency and the applicant will, where
necessary and appropriate, engage in dialogue about the request. The FOI
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 FOI 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 FOI Act was first enacted
in 1982.
Issues regarding your request
I am not satisfied that the web address you have provided meets the
requirement of ‘details of how notices under the FOI Act may be sent to
the applicant’ (s.15(2)(c) of the FOI 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.
Third party personal information
I note your request is seeking information about a third party individual.
To assist the department in deciding if we can provide another
individual’s information to you, please provide evidence of your authority
to ask for their information. If you are unable to provide authority,
please provide a reason why you believe this information should be
released. For further information you may refer to the department’s 424A
form.
See: [1]http://www.immi.gov.au/allforms/pdf/424a...
For your information the FOI Act contains a requirement to consult any
third parties where their personal information has been subject to an FOI
request (s.27A). The FOI Act also protects the rights of third parties by
the inclusion of the ‘personal privacy’ conditional exemption.
Next steps
Please confirm by writing to [2][email address] that the web address you
have provided is an address to which the department can send you notices;
and provide advice as to any authority you have to request the third
parties personal information. A response is due by close of business
Tuesday 6 January 2015. The request will then be validated.
Alternatively you may nominate a separate address for the purpose of the
department issuing you with a ‘notice’ under the FOI Act.
If you have not provided confirmation by that time, the request will be
closed as invalid.
Yours sincerely
Janelle Raineri
FOI Contact Officer I FOI Helpdesk
Freedom of Information Section
Parliamentary and Executive Coordination Branch I Immigration and Border
Protection Portfolio
Important Notice: If you have received this email by mistake, please
advise
the sender and delete the message and attachments immediately. This
email,
including attachments, may contain confidential, sensitive, legally
privileged
and/or copyright information. Any review, retransmission, dissemination
or other use of this information by persons or entities other than the
intended recipient is prohibited. DIBP respects your privacy and has
obligations under the Privacy Act 1988. The official departmental privacy
policy can be viewed on the department's website at www.immi.gov.au. See:
http://www.immi.gov.au/functional/privac...
References
Visible links
1. http://www.immi.gov.au/allforms/pdf/424a...
2. mailto:[email address]
Dear Department of Immigration and Border Protection,
I have recently applied for a FOI request through righttoknow.org.au website about " Convicted Terrorist Viken Hovsepian was granted Visa to visit Australia in June 2014." And requested all internal communications outlining how the convicted Armenian terrorist "Viken Hovsepian" was granted visa to Australia.
(references: FA 14/12/01344; ADF2014/46412 )
I was asked to clarify this request by Janelle Raineri on December 30th 2014.
A- My contact address is [email address] so any communication can be directed to this address. Right to know website also provides these details with the Agency so, I do not understand why I was asked to provide a communication address for a second time.
B-
BACKGROUND INFO : In 1982, the Federal Bureau of Investigation ("FBI") in USA discovered, through intercepted telephone calls, that Viken Hovsepian and Viken Yacoubian were planning to bomb the offices of the Honorary Turkish Consul General in Philadelphia, Pennsylvania. They had arranged for a coconspirator to transport the bomb on a commercial airliner from Los Angeles to Boston. Although the coconspirator managed to board a plane at Los Angeles International Airport, carrying the bomb in his checked baggage, the FBI arrested him and seized the bomb once the plane landed. The FBI later estimated that the bomb, if detonated, likely would have killed between 2,000 and 3,000 people. On January 25, 1985, the district court sentenced Hovsepian. Because Hovsepian was younger than 26 when he committed the offences, the district court had the option of
sentencing him under the Federal Youth Corrections Act ("FYCA"). However, both Hovsepian and the district judge agreed that he would not benefit from a sentence under FYCA. Accordingly, the court sentenced him as an adult to one five-year and two six-year terms of imprisonment, to be served concurrently. In conjunction with the sentence INS also filed to deport Viken Hosvepian for his convictions from USA. (http://www.ataa.org/reference/topalian/A...)
THE ACT :
According to the Immigration Act 1958 Fact Sheet 79, it states that ; "Any person sentenced to a term of imprisonment of 12 months or more can not enter Australia unless there is a ministerial discretion." and Ministerial Direction No 65 section 6.3 the Minister states that " 6.3.6. Australia has a low tolerance of any criminal of other serious conduct, by visa applicants, ... that there should be no expectation that such people should be allowed, to come to Australia.
Viken Archavir Sarkissian Hovsepian and his "terrorist gang"s crimes falls into one of the most serious crimes our society suffered on 17.12.1980 when Turkish Consul General and his aide were assasinated in Sydney, and has been suffering from since then, and his actions led US Border Protection Agency to file to deport this terrorist..
It is clear that either this person has forged the documents to enter Australia or there is a Ministerial Discretion for him to be granted a visa.
THE REQUEST :
So I request the following :
1- To know that if Viken Hovsepian was granted a ministerial discretion to enter Australia.
2- If so, on behalf of the concerned Australian public and as an Australian Citizen, I would like to know that, on what grounds a ministerial discretion was granted to this terrorist to give a private lecture to the Armenian Youth, about "a United Armenian Agenda" which was held by the Armenian Youth Federation on June 3rd, 2014 at 7PM at Stamford Hotel Grand Hotel at North Ryde Sydney while it is clear that he should be refused to enter to Australia in the first place according to the relevant clauses of the Direction order and the Act.
3- If there is no ministerial discretion or any other special treatment to this Viken Hovsepian, I would like to know how could he be granted a visa while the Act clearly state that "Any person sentenced to a term of imprisonment of 12 months or more can not enter Australia".
4- If there is any faul play in this case, I would like to know if the Ministry has initiated any inquiries about this, if not , why not?
C- None of these requests should require a "third party authority" from the convicted terrorist as they are not about the private life of the person in the focus, but about the actions of the Minister and the Ministry staff.
Yours faithfully,
Pinar Yilmaz
Pinar Yilmaz left an annotation ()
Dear Locutus Sum,
Thank you for your explanation and advice. I am keen to follow that but I would like to hear one more time from the Department first. It was obvious to me that the Officer was just "copy&paste"ing a response she gave a zillion times with the intent of not being "cooperative" on the issue. But I would like to wait and see their response to my "clarification".
Kind Regards
Yours sincerely,
Pinar Yilmaz
Our references: FA 14/12/01344; ADF2014/46412
Dear Pinar Yilmaz
Thank you for your email to confirming an address to which notices under
the FOI Act can be sent. You will receive an acknowledgement letter for
your request within 14 days.
The information you have provided in support of your request to access
documents will be taken into consideration by the FOI decision maker.
Please note that the purpose of the FOI Act is to seek access to documents
held by an agency. I have included further advice on this matter for you
below. The FOI Section of the department is unable to assist with any
general enquires. Therefore, the department has accepted the following as
the scope of your request:
Convicted Terrorist Viken Hovsepian was granted Visa to visit Australia in
June 2014.
I am requesting all internal communications outlining how the convicted
Armenian terrorist "Viken Hovsepian" was granted visa to Australia.
Access to Documents
The right to request documents under the FOI Act is outlined in the
Guidelines published by the Office of the Australian Information
Commissioner (OAIC):
Section 11(1) of the FOI Act gives every person a legally enforceable
right to obtain access to a document of an agency or an official document
of a minister, unless the document is exempt. [para 2.1]
The right of access enshrined in the FOI Act applies to ‘documents’. This
term is defined in s 4(1) to include maps, photographs, and any article
from which sounds, images or writing are capable of being reproduced (for
example, emails). There is no general obligation on agencies to reduce
information to written documentary form in order to facilitate an FOI
request, except in relation to information that is stored on a computer
tape or disk (s 17). [para 1.26]
The right of access is to existing documents, rather than to information.
The FOI Act does not require an agency or minister to create a new
document in response to a request for access, except in limited
circumstances where the applicant seeks access in a different format (see
Part 8 of these Guidelines) or where the information is stored in an
agency computer system rather than in discrete form.
The right of access applies to documents that exist at the time the FOI
request was made. [para 3.8]
Therefore, any general request for 'information' or 'data' that does not
already exist in a document held by the department is considered an
invalid request.
The full Guidelines can be accessed on the OAIC's website at:
[1]http://www.oaic.gov.au/freedom-of-inform...
Yours sincerely
Janelle Raineri
A/g FOI Inbox Manager
Freedom of Information Section
Parliamentary and Executive Coordination Branch I Immigration and Border
Protection Portfolio
T: 02 6264 1580
E: [2][email address]
Please note I am out of the office from 2:30 PM every Tuesday and Friday
Ben Fairless left an annotation ()
Pinar, Right to know provide a unique email address for each request. If you give them your personal email address, then the updates will not be received by Right to Know and the documents won't be made public (unless you publish them elsewhere).
I cannot agree with Locutus Sum more, and she has been able to say what I could not get out yesterday when I saw the "scam". I was the person who complained originally about the Department's handling of these matters and I'm disgusted that they have wilfully broken the law and the OAIC guidelines in this case.
Pinar Yilmaz left an annotation ()
Thanks Ben,
I think at the end of the day, they have figured out their mistake, and chose to reply to the RTK email. I will be making all my communication through the RTK website.
Regards
P.
UNCLASSIFIED
Our references: FA 14/12/01344; ADF2014/46412
Dear Pinar Yilmaz
Please find attached the acknowledgement of receipt for your recent FOI
Request.
Yours sincerely
Penelope Robb
FOI Helpdesk
Freedom of Information Section
Parliamentary and Executive Coordination Branch | Immigration and Border
Protection Portfolio
E: [1][email address]
UNCLASSIFIED
Important Notice: If you have received this email by mistake, please
advise
the sender and delete the message and attachments immediately. This
email,
including attachments, may contain confidential, sensitive, legally
privileged
and/or copyright information. Any review, retransmission, dissemination
or other use of this information by persons or entities other than the
intended recipient is prohibited. DIBP respects your privacy and has
obligations under the Privacy Act 1988. The official departmental privacy
policy can be viewed on the department's website at www.immi.gov.au. See:
http://www.immi.gov.au/functional/privac...
References
Visible links
1. mailto:[email address]
UNCLASSIFIED
Our references: FA 14/12/01344; ADF2014/46412
Dear Pinar Yilmaz,
I refer to your FOI request received on 26 December 2014, seeking access
to the following:
Convicted Terrorist Viken Hovsepian was granted Visa to visit Australia in
June 2014.
I am requesting all internal communications outlining how the convicted
Armenian terrorist "Viken Hovsepian" was granted visa to Australia.
I have made a decision on this request. Please see attached my signed
decision letter, decision record and schedule of documents.
This request has now been closed.
Yours sincerely
Shannon Bevan
FOI Officer
Freedom of Information Section
Department of Immigration and Border Protection
Telephone: (02) 6264 4667
Email: [1][email address]
UNCLASSIFIED
Important Notice: If you have received this email by mistake, please
advise
the sender and delete the message and attachments immediately. This
email,
including attachments, may contain confidential, sensitive, legally
privileged
and/or copyright information. Any review, retransmission, dissemination
or other use of this information by persons or entities other than the
intended recipient is prohibited. DIBP respects your privacy and has
obligations under the Privacy Act 1988. The official departmental privacy
policy can be viewed on the department's website at www.immi.gov.au. See:
http://www.immi.gov.au/functional/privac...
References
Visible links
1. mailto:[email address]
Locutus Sum left an annotation ()
The response from Janelle Raineri at the Department of Immigration is disgraceful. It brings the Department of Immigration and the Australian Public Service into disrepute.
The officer must know that the question she has asked ("Please confirm the email address") is unnecessary because she already knows the answer. She knows this by two sources. In first place, the email from Right to Know to the Department specifically stated that the email address was valid for the purpose of s 15(2)(c); it is a statement that is appended automatically to every email. In second place, the Department of Immigration was the subject of a complaint to the Office of the Information Commissioner because of exactly the behaviour (a better description is "scam") that is shown in the reply email by Janelle Raineri (see the relevant documents about the complaint in the reply to a request at https://www.righttoknow.org.au/request/d...).
The scam of the Department is to say that the advice from the OAIC is non-binding and to continue with established behaviour. The Department is also knowlegable that the Office of the Information Commissioner is now crippled by your Attorney General and Treasurer; the Office does not receive any money to operate, so the Office has no staff and it is not possible for the FOI Commissioner to process all the complaints and appeals.
Is there a recourse for an applicant? I think so. If you have the idea that the officer is not responsible because she is behaving according to the policy of the Department of Immigration, then I think you do not have the right idea. The officer is personally responsible for the behaviour as we will see. Because of this I think the applicant should consider to complain to the Australian Public Service Commissioner, not about the Department, but about the officer who has written the email. I suggest it is a good case that this officer (and other officers in similar cases) has breached the Public Service Act 1999 (http://www.comlaw.gov.au/Details/C2014C0...). If a person reads Section 12(9) of the Public Service Act, she can read "An APS employee must not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee’s APS employment." When the officer writes to the applicant that the applicant must confirm the email address or the request will be considered invalid, the officer knowledgably misleads the applicant into believing that this is what is required by law ... but the officer knows that it is not so. Also I think there might also be other breaches of Section 12. For example, s 11, "An APS employee must at all times behave in a way that upholds ... the integrity and good reputation of the employee's Agency and the APS." Also s 12(4), "An APS employee, when acting in connection with APS employment, must comply with all applicable Australian laws. For this purpose, Australian law means ... any Act (including this Act), or any instrument made under an Act."
I say that there is a good case that the officer has broken the APS Code of Conduct; it is not certain but there is a good case. If a complaint was written, on every occasion of disgraceful behaviour, to the Australian Public Service Commission about the conduct of the many respondent officers to requests made through Right to Know, then each individual would understand that she is responsible for the behaviour. The Public Service Act does not give the defence, "I was only following orders." (Yes, I think that history has heard this defense in another place!) It is so, a Department can make a policy and the Secretary of the Department is responsible for the policy. But we can see in Section 12 of the Public Service Act that every individual APS employee is responsible for her own behaviour.
I wish to make a suggestion and also a request. If it is not already made, I suggest to write the (legally unnecessary) email to confirm that the electronic address is a valid address for the purpose of s 15(2)(c). The request I make is to ask you please to write with slow-paper-mail to the Australian Public Service Commissioner ("The Commissioner, Australian Public Service Commission, 16 Furzer Street, Phillip ACT 2606") and make the complaint against the specific officer. If this seems to you to be harsh, please remember that the only person who is responsible for the behavior of the officer is the officer. I make this request also to other Right to Know applicants who receive disgraceful behaviour from the Department of Immigration.