Federal Court of Australia

Matson v Australian Information Commissioner (No 2) [2021] FCA 690

ORDERS

THE COURT ORDERS THAT:

1.    The application filed on 8 December 2020 be dismissed.

2.    The applicant pay the costs of the respondent, to be taxed if not otherwise agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an application filed by Mr Baron Matson on 8 December 2020 for an extension of time (application for extension of time) to file an originating application for judicial review (substantive application) under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) of six separate decisions (decisions).

2    I understand that the substantive application is that annexed to the applicant’s affidavit filed on 8 December 2020. I note that the applicant had earlier filed an application for judicial review on 8 September 2020, however it appears that this earlier application was superseded by the document annexed to the 8 December 2020 affidavit. In any event, I note that although the formatting of the two documents is different, the content is materially the same.

3    The six decisions were made variously on 26 May 2020, 29 May 2020 and 10 August 2020 by a delegate of the respondent, and were described in the substantive application as follows:

•     Decision dated 10 August 2020 not to continue to undertake a review under s. 54W of the Freedom of Information Act 1982 (Cth) (the FOI Act) of my Information Commissioner review (IC Review) application of an FOI decision made by the Attorney-General's Department on 9 January 2019 (Office of the Australian Information Commissioner (the OAIC) reference: MRI 8/00814, Agency reference: FOI18/l03) [(Decision 1)];

•     Decision dated 10 August 2020 not to continue to undertake a review under s. 54W of the FOI Act of my IC Review application of an FOI decision made by the Attorney-General's Department on 9 January 2019 (OAIC reference: MR18/00816, Agency reference: FOI18/107) [(Decision 2)];

•     Decision dated 29 May 2020 not to continue to undertake a review under s. 54W of the FOI Act of my IC Review application of an FOI decision made by the Department of Foreign Affairs and Trade (DFAT) on 27 July 2018 (OAIC reference: MRI8/00603, Agency reference: I 807-Fl994) [(Decision 3)];

•     Decision dated 29 May 2020 not to continue to undertake a review under s. 54 W of the FOI Act of my IC Review application of an FOI decision made by DFAT on 31 May 2018 (OAIC reference: MR18/00552, Agency reference: 1807-Fl877) [(Decision 4)];

•     Decision dated 26 May 2020 not to continue to undertake a review under s. 54W of the FOI Act of my IC Review application of an FOI decision made by the Australian Transaction Reports and Analysis Centre (AUSTRAC) on 6 July 2018 (OAIC reference: MRI 8/00599, Agency reference: PIAT-1260) [(Decision 5)]; and

•     Decision dated 26 May 2020 not to continue to undertake a review under s. 54W of the FOI Act of my IC Review application of an FOI decision made by AUSTRAC on 21 June 2018 (OAIC reference: MRI 8/00552, Agency reference: PIAT-1124) [(Decision 6)].

(Emphasis in original.)

4    By consent the matter was heard and determined on the papers. The parties filed detailed submissions for the Court’s consideration.

5    Materially, the respondent submitted that the application for extension of time be dismissed with costs. In doing so, the respondent submitted that, in circumstances where there was no other active participant in the proceedings and no other contradictor to the application for extension of time, it was appropriate for her to bring the contradictory position to the attention of the Court, so that the Court can properly consider the matters before it.

6    I note that it was in this context that the respondent made submissions regarding the prospects of the substantive application.

Background

7    The applicant is being held on remand in custody at the Arthur Gorrie Correctional Centre (Correctional Centre). He has been held in custody since his arrest in October 2015.

8    For the purposes of determining the application for extension of time, it is convenient to briefly set out the relevant background facts. Insofar as I can ascertain those background facts are not in dispute. They are helpfully set out in the submissions of the respondent, from which I extract the following summary.

Decision 1

9    On 9 July 2018 the applicant lodged a freedom of information (FOI) request with the Commonwealth Attorney-General’s Department (Department) in the following terms:

In relation to my original FOI request FOI17/034, which was refuse by the Attorney-General’s Department because of a practical refusal reason under section 24AA of the FOI Act, I seek access to a “Complete schedule of documents” for all documents/records identified as captured by the scope of my original request.

In relation to my original FOI request FOI17/034 the Attorney-General’s Department has approximated there are 6600 pages contained in 600 documents and that it would take up to 33 hours to prepare a schedule detailing all relevant documents. (based on an average of 30 minutes per 10 documents).

PLEASE NOTE: in a ‘Strategy and Delivering Division, Attorney-General’s Department” email released in the Department of Foreign Affairs and Trade FOI decision 1801-F1 864 (page 21 decision 1801-F1 864) the Attorney-General’s Department referring to my original FOI request FOI17/034 stated:

“The statutory timeframe for processing this matter has expired as there have been lengthy discussions as to the scope of the request (request initially captured over 7000 records).”

To be clear I am seeing the inclusion of all 7000 records to be prepared in a single schedule of documents. I am requesting the schedule detail the basic particulars of each document/record, such as [DATE]; [SIZE], [TYPE]; AND [DESCRIPTION].

I am not seeking the [ACCESS GRANTED] or [EXEPMTIONS] to be detailed in the proposed “Complete schedule of documents” as I am not seeking access to any of the individual 7000 records at this time.

(Errors in original).

10    On 10 August 2018, the Department notified the applicant of its decision in relation to his request (10 August decision). In its decision, the Department refused the request under s 24A(1)(b)(ii) of the FOI Act on the basis that all reasonable steps had been taken to find documents and the Department was satisfied that documents falling within the scope of the request did not exist.

11    Section 24A of the FOI Act relevantly provides:

24A     Requests may be refused if documents cannot be found, do not exist or have not been received

Document lost or non‑existent

(1)     An agency or Minister may refuse a request for access to a document if:

(a)     all reasonable steps have been taken to find the document; and (b)     the agency or Minister is satisfied that the document:

(i)     is in the agency’s or Minister’s possession but cannot be found; or

(ii)     does not exist.

…

12    Among other things, in the 10 August decision the Department explained to the applicant:

With respect to your request above, I would like to draw your attention to the Office of the Information Commissioner’s Guidelines 2.33 and 2.34 which state that the right of access under the FOI Act is to existing documents, rather than to information. The FOI Act does not require an agency or minister to create a new document containing the information that is sought.

…

I have identified that the Attorney-General’s Department has no documents that fall within the scope of your request. I did this by arranging for a comprehensive search of the department’s electronic document management system and making inquiries of staff likely to be able to identify relevant documents

13    On 16 August 2019, the applicant sought an internal review of the 10 August decision. In his internal review requested, the applicant stated:

It is my respectful submission that my request F0118/103 dated 2 July 2018 was an exception in the limited circumstances described in section 2.33 of the Australian Information Commissioner Guidelines. I support my submission by the fact that the Attorney-General’s Department in conducting the preliminary searches for my original FOI request F0117/034 accessed and searched the Attorney-General’s Department electronic document management system, which subsequently created the database file detailing the 650 documents identified as falling within the scope of my request, outlined in Mr Gray’s decision F0117/034 dated March 2017. This information must have been created into some form of computer file; document or other discrete form as the information was relayed to me in the decision F0I17/034 dated March 2017.

14    Pursuant to s 54D of the FOI Act, if an internal review decision is not made within the statutory timeframe a decision to affirm the original access refusal decision is taken to have been made.

15    On 10 October 2018, the applicant sought IC review of the 10 August decision under s 54L of the FOI Act. The applicant also made a complaint about the Department’s handling of his request.

16    On 24 October 2018, the respondent wrote to the applicant and acknowledged that the applicant’s IC review request had been received and the respondent was conducting preliminary inquiries. The respondent also advised that the IC review was a more appropriate and effective mechanism to assess the merits of the 9 July 2018 FOI Request, rather than a complaint.

17    On 8 January 2019, the respondent notified the Department under s 54Z of the FOI Act that the respondent would review the Department’s deemed affirmation decision. The respondent also issued a notice under s 55E of the FOI Act requiring the Department to provide an adequate statement of reasons in relation to the applicant’s internal review request.

18    On 9 January 2019, the Department notified the applicant of its substantive decision to affirm the 10 August decision (9 January 2019 Department Decision). The Department wrote, inter alia:

I have arranged for new searches to be conducted of the department’s relevant record management systems.

I can confirm that the document you seek access to does not exist. It is the practice of the department to create a Schedule of Documents only if partial or full access to documents is being granted in response to an FOI request.

In circumstances where no documents are being provided, the Department does not create a Schedule of Documents.

19    On 4 February 2019, the applicant sought IC review of the 9 January 2019 Department Decision under s 54L of the FOI Act. Among other things, the applicant submitted:

It is plainly apparent from the terms of my FOI request FOI18/103, that I was seeking access to the Attorney-General’s Department preliminary search result “information” in relation to myself … and further seeking the agreement of the Attorney-General’s Department to prepare the preliminary search result “information” into a new document, being a complete “Schedule of Documents” … and was further plainly apparent from the terms of my request that I was not seeking access to an existing document.

…

As the preliminary search result “information” I sought access to was created and stored on the Attorney-General’s Department computer systems (emphasis added), it is my respectful submission that the Attorney-General’s Department should have proceeded to prepare the preliminary search result “information” into a new document as I had requested, either as a “Schedule of Documents” or some other type of document that provided me the breakdown and particulars of the preliminary search result “information” in relation to myself from FOI decision FOI17/034.

20    The applicant also made a complaint about the Department’s handling of the 16 August internal review request.

21    In reply, the Department submitted:

The department notes that section 2.33 begins by acknowledging that agencies are not typically required to create new documents in response to FOI requests, and submits that the limited exception described in section 2.33 is not open in these circumstances. The department submits that the exception in relation to ‘information stored in an agency computer system’ is limited to situations where the computer system can generate the document with some degree of automaticity, or where the document can be generated as a function of the computer system or program itself.

…

In any case, the department submits that the limited exception in section 2.33 is not intended to cover instances such as this, where a large amount of manual work would be required to create the schedule of documents. In this case, the documents are saved in different locations in CM and in hardcopy, and not into a single program which can generate an index of content, such as the schedule Mr Matson seeks. Creation of a schedule would require an officer of the department to manually create and populate a spreadsheet, typing in the information such as the document’s creation date, author and title. The officer would then be required to redact sensitive information from the spreadsheet.

22    On 9 December 2019, the respondent’s review officer responsible for this matter, Mr Carl English, wrote to the applicant to advise him of his intention to recommend to the delegate of the respondent that the applicant’s application for IC review be finalised. Mr English advised the applicant that his IC review may be finalised by either deciding not to continue to undertake a review under s 54W or by affirming the Department’s decision under s 55K of the FOI Act. Mr English also invited the applicant to provide reasons if he disagreed with the proposed finalisation of his IC Review by 2 January 2020.

23    On 6 January 2020, the applicant provided submissions in response to the respondent’s letter of 9 December 2019, including:

… After carefully considering the Department’s submission regarding the fresh searches that occurred in relation to these matters … I feel quite strongly that the information I requested, which is stored electronically on the Department’s document management system “Content Manger” and not in a discrete form, does qualify as eligible to be provided to me in a document pursuant to section 17 of the FOI Act.

…

In short, I reject in the strongest terms possible the Department’s submission that to prepare a spreadsheet or schedule detailing the documents captured by the scope of my requests … the departments would have to manually create and populate a spreadsheet, typing in the information such as the document’s creation date, author title. I believe this information is readily available in “fields” which is common in all database software. No doubt, the “Content Manager” database and “MAX” case management system are custom designed software programs, designed to manage such tasks as searching, identifying, collating and automatically generating the desired fields of the database, based on the users required fields and search terms.”

24    Following receipt of these submissions the respondent sought clarification from the Department, which responded, in summary:

(a)     the “Content Manager” (CM) database does not have the capability of generating a list of documents that are only held on hard copy files. The Department advises that CM indicates the existence of a file that only exists as a hard copy, but does not hold information about the documents that are held on the file. Creating a list of documents held on a hardcopy file would require manual data entry;

(b)    a list of electronic files created by CM would not contain the detail sought in the Applicant’s application such as dates, number of pages or descriptions of documents; and

(c)    the Department would not be able to identify whether an electronic document identified in a report generated from CM would be within the scope of the Applicant’s FOI Request solely from the information contained in any generated report. The Department would be required to manually check that documents identified in the report are within the scope of the FOI Request.

25    On 10 August 2020, a delegate of the respondent wrote to the applicant advising of her decision to decline to undertake the IC Reviews of the 10 August 2018 Department Decision and the 9 January 2019 Department Decision. Among other things, the delegate stated:

I am not persuaded by your submission that the Department CM and MAX software is capable of functioning independently to collate or retrieve stored information and to produce the requested document for the following reasons:

•    the Department advises that the MAX database cannot store documents or other records. The Department advised that MAX was used to identify relevant file numbers in CM. The Department has not submitted that MAX could be used to identify specific documents.

•    the scope of your request was for a “complete schedule of documents” for all documents/records identified as captured by the scope of my original request.” I accept the Department’s explanation that it did not identify 600 documents, rather, that 600 documents is an estimate based on a sampling exercise. The Department is therefore unable to use CM to collate the 600 documents initially identified in FOI17/034 because it did not complete the process of identifying such records.

•    I am satisfied with the Department’s advice that CM cannot independently identify and collate the information and produce a document that contains the information sought. I am satisfied with the Department’s advice that the documents are saved in different locations in CM and in hardcopy. However, I am not persuaded considering the scope of your original request for 017/034, which informs the scope of this request, that it will be unnecessary for a Departmental officer to manually check the content of the identified documents to ensure CM has not identified documents irrelevant to the scope of the request, that the report generated by CM meaningfully describes the document, the tope of document or the size of each document.

Accordingly, I am satisfied that section 17 does not apply to your request because section 17 only applies in circumstances where the agency can use a computer or equipment to independently collate or retrieve the stored information to produce the document.

…

I have had regard to:

•    the Department’s decision and reasons for decision dated 8 August 2018

•    the Department’s substantive internal review decision and reasons for decision dated 8 January 2018;

•    the FOI Act, in particular sections 24A, 17, 54W and 55D;

•    the Guidelines issued by the Australian Information Commissioner under section 93A of the FOI Act which agencies must have regard in performing a function or exercising a power under the FOI Act (FOI Guidelines), in particular paragraphs [2.33], [2.34], [3.89] to [3.204];

•    relevant case law, in particular De Terle and Australian Securities and Investments Commission (Freedom of Information) [2015] AATA 770, Collection Point pty Ltd v Commissioner of Taxation [2013] FCAFC 67, ‘QL’ and Department of Human Services (Freedom of Information) [2019] AICmr 36 (12 June 2019); and

•    the parties’ submissions.

I am satisfied that the Department has taken all reasonable steps to find documents within the scope of your request and that documents do not exist or cannot be found. On that basis, I am satisfied that the matter is lacking in substance. In deciding whether to exercise the discretion or not to continue to undertake a review, I have considered … continuing to review this matter will not promote the objects of the FOI Act.

…

I am satisfied the Department has taken all reasonable steps to find documents falling within the scope of your FOI Request as it is required to do under section 24A(1) of the FOI Act. I am similarly satisfied that section 17 of the FOI Act does not apply in the circumstances. On this basis, I am satisfied that the matter is lacking in substance.

26    It is not in dispute that, in respect of Decision 1, the substantive application was filed 1 day out of time.

Decision 2

27    On 9 July 2018 the applicant lodged a FOI request with the Department in the following terms:

In relation to my original FOI request FOI18/019, which was refused by the Attorney-General’s Department because of a practical refusal reason under section 24AA of the FOI Act, I seek access to a “complete schedule of documents” for all documents/records identified as captured by the scope of my original request.

In relation to my original FOI request FOI17/34 the Attorney-General’s Department has approximated there are 6,600 pages contained in 600 documents and that it would take up to 33 hours to prepare a schedule detailing all relevant documents.

To be clear I am seeking the inclusion of all 1,524 documents to be prepared in a single schedule of

documents. I am requesting the schedule detail the basis particulars of each document/record, such as [DATE], [SIZE], [TYPE]; and [DESCRIPTION]. I am not seeking [ACCESS GRANTED] or [EXEMPTIONS] to be detailed in the proposed “complete schedule of documents” as I am not seeking access to any of the individual 1,524 documents at this time.

In relation to my original FOI request FOI18/019 the Attorney-General’s Department has approximated there are 1,524 documents and accordingly, I understand it would take up to 76 hours to prepare a schedule detailing all relevant documents.

PLEASE NOTE: Due to the large number of identified documents (1,524 documents) I am proposing the “complete schedule of documents” be processed by the Attorney-General’s Department FOI unit in three parts (PART A documents 0-508; PART B documents 509-1017; and PART C documents 1018-1054). This request is only seeking access to PART A documents. Therefore each PART would be more manageable for the decision-maker and Attorney-General’s Department and FOI Team to process, taking up to 27 hours for each PART to be processed. In the event that the decision-maker and Attorney-General’s Department FOI Team preferred to process PART A; PART B and PART C of the “complete schedule of documents” all together as one FOI decision, I would be agreeable to this” (Second 9 July 2018 FOI Request).

28    On 8 August 2018, the Department wrote to the applicant and advised of its decision to refuse the Applicant’s second 9 July 2018 FOI Request under section 24A(1)(b)(ii) on the basis that all reasonable steps had been taken to find documents and the Department was satisfied that documents falling within the scope of the second 9 July 2018 FOI Request do not exist (8 August 2018 Department Decision).

29    Following the 8 August 2018 Department Decision, the applicant’s internal review and application for an IC Review were addressed by the Department, the applicant and subsequently the respondent in the same manner as Decision 1.

30    It is not in dispute that, in respect of Decision 2, the substantive application was filed one day out of time.

Decision 3

31    On 1 February 2018, the applicant lodged a FOI request with DFAT in the following terms:

In relation to my father Roger Gregory MATSON (DOB 7 June 1941) and any of the legal names been known by, I seek access to all communications, correspondence, requests and reports held, created or sent internally within the Department of Foreign Affairs and Trade (DFAT); and all communications, correspondence, requests and reports held, created or received between the Department of Foreign Affairs and Trade and the following Commonwealth Departments and non-Commonwealth Agencies:

The Commonwealth Attorney-General’s Department (AGD), Australian Federal Police (AFP), the Department of Immigration and Border Protection (DIBP); the Office of the Director of Public Prosecution (CDPP); the Australian Taxation Office (ATO); the Commonwealth Department of Human Services ‘Centrelink’; the Australian Embassy in Washington D.C, U.S.A; Interpol; the U.S. Department of Justice (USDOJ); the F.B.I Legal Attaché in Sydney.

This would include all emails, facsimiles, letters, requests, reports, case notes, briefs, advice, alerts (including Interpol “RED NOTICE ALERTS”) warrants, applications for warrants and any telephone logs from 1 January 2000 through to 1 February 2018 (1 February 2018 FOI Request)

32    On 16 February 2018, DFAT wrote to the applicant and requested the applicant provide the legal names omitted from the 1 February 2018 FOI Request by which the applicant’s father would have been known.

33    On 27 February 2018 the applicant provided the additional legal names of his father.

34    On 10 April 2018, DFAT wrote to the applicant and advised of its decision to grant the applicant access to 15 documents, in part, under ss 22(1)(a)(ii), 33(a)(iii), 37(2)(b), 47E(d) and 47F of the FOI Act (10 April 2018 DFAT Decision).

35    On 2 May 2018, the applicant sought an internal review of the 10 April 2018 DFAT Decision. In that application, the applicant wrote:

It is my respectful submission that some ‘documents, communications and correspondence’ were released in FOI decision 1801-F1877, evidence obtained in the form of Commonwealth government documents confirm that the Australian Embassy in Washington D.C.; the Australian High Commission in Port Vila, Vanuatu; the Australian Consulate General in Geneva, Switzerland; and other Sections or Divisions of the Department of Foreign Affairs and Trade in Australia, have all been involved and provided assistance in relation to the Mutual Assistance Requests made between the Commonwealth and Vanuatu; between the Commonwealth and Switzerland; and between the Commonwealth and the United States of America that has been ongoing since the year 2000 in relation to myself and the serious overseas criminal matter in question.

It is further confirmed by the evidence obtained that the Department of Foreign Affairs and Trade has provided assistance and information to the AFP and the FBI in their criminal investigations in relation to my father and the serious overseas criminal matter in question.

36    On 31 May 2018, DFAT wrote to the applicant and advised of its decision to affirm the 10 April 2018 DFAT Decision. Among other things, DFAT advised the applicant as follows:

In reviewing the decision, I have established that Ms Frech Cardenas has correctly identified all documents held by the Department that are relevant to your request. The Department has undertaken extensive searches within the Department (Australian Passport office; Transnational Crime Section; Parliamentary Media Branch; Consular Operations; Corporate Records Branch) and at our overseas post in Washington. I am satisfied that no further documents are held. I note that the FOI Act only captures documents in this Department’s possession at the date your FOI request was received. It does not capture documents held by other agencies. I understand from your communication that you have separately sought documents under FOI from other agencies.

…

As the Department is not the lead agency in extradition matters, we are not obliged to hold documents beyond the disposal date as set out in the Administrative Functions Disposal Authority or the Department Agency Functions Disposal Authority (issued under the Archives Act 1982 (Cth)). As such, consistent with the Department’s record destruction guidelines, general correspondence would have been destroyed.

I also note that you refer to documents which you believe should have been found at the overseas post in Washington. A diplomatic mission or consulate has no legal standing and is not a legal entity. Rather it houses various government agencies. For FOI purposes, each government agency represented at an overseas post is a separate FOI entity. The Department’s obligations to search for documents as post does not extend to documents held by other agencies at overseas posts.

I am satisfied thorough searches of this Department’s documents at Washington have been conducted. If you have concerns about the adequacy of document searches conducted by other agencies, you should direct your concerns to those agencies. Officers of other agencies (eg. AGD and AFP) who are based in an overseas mission, are physically located within this mission and may use letterhead and email addresses which would not distinguish them from officers from the Department. As such, documents held by another agency at an overseas mission are not held by the Department – they are held at that agency.

After careful consideration of the material provided to me, I am confident that the Department has undertaken extensive searches and holds no further documents relevant to your FOI request.

37    On 11 June 2018, the applicant applied for an IC Review of the 10 April 2018 DFAT Decision under section 54L of the FOI Act.

38    On 10 November 2018, in the context of conducting the IC Review of the 10 April 2018 DFAT Decision, DFAT provided evidence to the respondent demonstrating the searches it undertook in response to the applicant’s 1 February 2018 FOI Request. DFAT also provided evidence demonstrating the relevant search parameters used, the locations searched and the results of the searches conducted.

39    On 20 September 2019, DFAT provided submissions to the respondent further outlining the searches it undertook in response to the applicant’s 1 February 2018 FOI Request. These submissions were provided to the applicant on 21 November 2019.

40    On 22 November 2019, the respondent submitted a request for further information from DFAT in relation to the IC Review of the 10 April 2018 DFAT Decision.

41    On 19 December 2019, DFAT provided submissions to the respondent further outlining the searches it undertook in response to the applicant’s 1 February 2018 FOI Request. Among other things, DFAT submitted

Mr Matson’s FOI request (paragraph three) makes specific reference to the Australian Embassy in Washington D.C, U.S.A. Mr Matson’s FOI request does not mention or refer to the Australian High Commission in Port Vila or the Australian Consulate General in Geneva. Based on a common sense interpretation of the FOI request, the department undertook searches in areas it reasonably expected would hold documents related to the request.

…

On the face of Mr Matson’s FOI request, there was no indication the Australian High Commission in Port Vila and the Australian Consulate-General in Geneva would hold documents. Based on the ordinary interpretation of Mr Matson’s FOI request, it had no reason to believe that the Australian High Commission in Port Vila and the Australian Consulate-General in Geneva to undertake searches at the time of processing Mr Matson’s FOI request.

Had the outcome of the department’s searches in any of the six areas mentioned in paragraph 5 indicate that the Australian High Commission in Port Vila of the Australian Consulate-General in Geneva held documents captured by Mr Matson’s request, the department would have tasked these missions to undertake searches.

…

The offices of whole government agencies co-located with the department in Australian high commissions, embassies and consulates overseas are not an extension of the department. Accordingly, in undertaking searches, it would not be reasonable for the department to task whole of government agencies co-located in Australian high commissions, embassies and consulates overseas to undertake searches, as they are separate Government agencies. This is consistent with the department’s usual approach to processing FOI requests. Where the department’s searches identify documents relevant to another whole of government agency, the department’s usual practice would be to consult with that agency, where appropriate.

42    On 26 March 2020, a delegate of the respondent wrote to the applicant to advise of the respondent’s intention to recommend that the applicant’s IC Review be finalised pursuant to section 54W(a)(i) of the FOI Act on the basis that the application for the IC Review lacked substance. Attached to this letter was a copy of a table prepared by DFAT setting out the chronology of events undertaken in processing the applicant’s IC Review of the 10 April 2018 DFAT Decision. The applicant was invited to provide reasons should the applicant disagree with the proposed finalisation of the applicant’s IC Review of the 10 April 2018 DFAT Decision.

43    On 27 March 2020, a teleconference was held between the applicant and a delegate of the respondent to discuss, among other things, the IC Review of the 10 April 2018 DFAT Decision.

44    On 27 April 2020, the applicant wrote to the respondent expressing the applicant’s preference that the respondent continue to carry out the IC Review of the 27 July 2018 DFAT Decision and in lieu of doing so, accepted it may be preferable for the delegate of the respondent to make the recommendation to finalise the IC Review of the 10 April 2018 DFAT Decision pursuant to section 54W(a)(i) of the FOI Act.

45    On 29 May 2020, a delegate of the respondent wrote to the applicant advising of her decision to decline to undertake the IC Review of the 10 April 2018 DFAT Decision. Among other things, the delegate advised:

I am satisfied that the Department has taken all reasonable steps to find documents within the scope of your request in accordance with section 24A of the FOI Act. In particular, I have taken into account the following:

1.     The Department has undertaken searches of both hard copy and electronic files of various sections and divisions of the Department, including the Political Branch in Washington D.C.;

2.     The Department recently undertook further searches of both hard copy and electronic files held by the Australian High Commission Port Vila and the Australian Consulate-General Geneva in MR18/00603. Those searches covered the date range of 1 January 2000 to 18 June 2018 and used the various names your father has been known by as listed in your request. As the date range in your request that is the subject of this IC review is 1 January 2000 to February 2018, I am satisfied that there is no utility in the Department undertaking further searches of its posts in both Port Vila and Geneva in this IC review.

3.     The Department’s explanation that, in relation to the documents sought by you, it is only obliged to retain such records for five years, after which time it is open to the Department to destroy those records.

4.     The Department’s explanation in MR18/00603 as to why it cannot provide of a file’s destruction, namely because its searches concluded that it did not create or hold a file that could be identified as relating to your father.

5.     The Department’s explanation that it is not the lead agency with respect to extradition matters, and that international criminal justice cooperation, including extradition, is the portfolio responsibility of the Attorney-General’s Department. The Department submits that this would explain why the department (including overseas missions in Port Vila and Geneva) did not create a specific file to hold correspondence relating to your father.

…

I have had regard to:

•    the Department’s decision and reasons for decision;

•    the FOI Act, in particular sections 24A and 55D;

•    the Guidelines issued by the Australian Information Commissioner under section 93A of the FOI Act which agencies must have regard in performing a function or exercising a power under the FOI Act (FOI Guidelines), in particular paragraphs [3.85] to [3.94];

•    relevant case law, in particular De Terle and Australian Securities and Investments Commission (Freedom of Information) [2015] AATA 770; and

•    the parties’ submissions.

I am satisfied that the Department has taken all reasonable steps to find documents within the scope of your request and that documents do not exist or cannot be found. On that basis, I am satisfied that the matter is lacking in substance. In deciding whether to exercise the discretion or not to continue to undertake a review, I have considered … continuing to review this matter will not promote the objects of the FOI Act

46    It is not in dispute that, in respect of Decision 3, the substantive application was filed 74 days out of time.

Decision 4

47    On 18 June 2018, the applicant lodged a FOI request with DFAT in the following terms:

In relation to my father Roger Gregory MATSON (DOB 7 June 1941) and any of the legal names been known by (Roger Gregory Fletcher; and Roger Temple BELL), I seek access to all relevant documents, communications, correspondence, requests and reports held, created or sent internally within the Department of Foreign Affairs and Trade ‘Australian High Commission Port Vila’ and ‘Australian Consulate General Geneva’. This would include all emails, letters, facsimiles, memos, briefs, reports, case notes and requests that were made during the period of 1 January 2008 to 18 June 2008; and all relevant documents, communications, correspondence, requests and reports held, created or received between the Australian High Commission Port Vila and the Australian Consulate General Geneva between any of the following listed Commonwealth Departments/Agencies and other non-Commonwealth Agencies that are all confirmed to have had an involvement with the Commonwealth Attorney-General’s Department ‘Mutual Assistance Requests’ in relation to Roger Gregory Matson or involvement with the joint AFP and FBI criminal investigations.

Commonwealth Departments and Agencies

Australian Government Solicitor (AGS), Australian Federal Police (AFP), Attorney-General’s Department (AGD), Department of Home Affairs (DHA), Department of Prime Minister and Cabinet; Australian Border Force; Department of Social Services; AUSTRAC; Australian Taxation Office (ATO); Department of Foreign Affairs and Trade (DFAT); Office of the Director of Public Prosecution (CDPP); Department of Human Services ‘Centrelink’; Australian Embassy in Washington D.C, U.S.A; the other sections of the Australian High Commission in Port Vila Vanuatu; the other sections of the Australian Consulate General in Geneva, Switzerland; any other Commonwealth Department or Agencies involved in the matter.

Non-Commonwealth Agencies

Interpol in Canberra; US Department of Justice (USDOJ); FBI Legal Attache in Sydney; and any other United States Government Agencies involved in the matter.

My definition of “all communications, correspondence, requests and reports held, created or received by the Department of Foreign Affairs and Trade ‘Australian High Commission Port Vila’ and ‘Australia Consulate General Geneva’ – would mean:

For the period of 1 January 2000 to 18 June 2018, all emails, facsimiles, letters, requests, reports, AFP or Department of Foreign Trade ‘Australian High Commission Port Vila’ and ‘Australian Consulate General Geneva’ case notes, person reports, information reports, briefs of evidence and any disclosures made by or requested by the Department of Foreign Affairs and Trade ‘Australian High Commission Port Vila’. I am further requesting the archived internal email records of Michelle Manson, Australian High Commission, Port Vila, Vanuatu and Marion Pydde Department of Foreign Affairs and Trade Officer”

(18 June 2018 FOI Request).

48    On 27 July 2018, DFAT wrote to the applicant and advised of its decision to refuse the applicant’s 18 June 2019 FOI Request under s 24A of the FOI Act on the basis that the documents requested could not be found or do not exist (27 July 2018 DFAT Decision). DFAT advised the applicant, inter alia:

As advised in our letter to you dated 31 May 2018, the FOI Act only captures documents in the Department’s possession. It does not capture documents held by other agencies or foreign governments. Searches by the Department for documents created or received by the Australian Commission Port Vila to/from any of the organisations/agencies listed in your FOI request; and any documents created or received by the Australian Consulate-General, Geneva to/from any of the organisations/agencies listed in your FOI request, have found no documents. I am therefore unable to meet your request in accordance with the provisions of section 24(1)(b)(ii) of the FOI Act as the Department holds no documents relevant to this part of your request.

Searches by the Department for documents created or received by the Australian Embassy Washington DC to/from any of the organisations/agencies listed in your FOI request, have found no documents. I am therefore unable to meet your request in accordance with the provisions of section 24(1)(b)(ii) of the FOI Act as the Department holds no documents relevant to this part of your request.

Your request for the archived email records of Michelle Mason and Marion Pydde was extremely broad. We therefore interpreted the scope of this part of your request to: “archived email records of Michelle Manson and Marion Pydde concerning your father Mr Roger Gregory MATSON and any of the legal names he has been known by (Mr Roger Gregory FLETCHER and Mr Roger Temple BELL) during the period of 1 January 2008 to 18 June 2018.”

A centralised search of the Department’s filing system has found no archived email records relevant to your request. I am therefore unable to meet your request in accordance with the provisions of section 24A(1)(b)(ii) of the FOI Act as the Department holds no documents relevant to this part of your request.

As noted in our letter of 31 May 2018, the Department of Foreign Affairs and Trade is not the lead agency in extradition matters. As such, we are not obliged to hold documents beyond the disposal date as set out in the Administrative Functions Disposal Authority or the Department Agency Functions Disposal Authority (issued under the Archives Act 1983 (Cth). Consistent therefore with the Department’s record destruction guidelines, any general correspondence would have been destroyed.

49    On 3 August 2018, the applicant applied for an IC Review of the 27 July 2018 DFAT Decision under s 54L of the FOI Act.

50    On 1 November 2018, in the context of conducting the IC Review of the 27 July 2018 DFAT Decision, DFAT provided submissions to the applicant regarding the searches it undertook in response to the applicant’s 18 June 2018 FOI Request. DFAT also provided evidence demonstrating the relevant search parameters used, the locations searched and the results of the searches conducted.

51    On 24 June 2019, the respondent submitted a request for further information from DFAT in relation to the IC Review of the 27 July 2018 DFAT Decision.

52    On 26 August 2019 and 19 December 2019, DFAT provided submissions to the respondent further outlining the searches it undertook in response to the applicant’s 18 June 2018 FOI Request. Among other things, DFAT agreed to undertake further searches for the material requested by the applicant in his 18 June 2018 FOI request.

53    On 21 February 2020, DFAT confirmed that those further searches had been undertaken, however no documents within the scope of the applicant’s 18 June 2018 FOI request were identified.

54    On 26 March 2020, a delegate of the respondent wrote to the applicant to advise of the respondent’s intention to recommend that the applicant’s IC Review be finalised pursuant to s 54W(a)(i) of the FOI Act on the basis that the application for the IC Review lacked substance. The applicant was invited to provide reasons should he disagree with the proposed finalisation of his IC Review of the 27 July 2018 DFAT Decision.

55    On 27 March 2020, a teleconference was held between the applicant and a delegate of the respondent to discuss the IC Review of the 27 July 2018 DFAT Decision.

56    On 27 April 2020, the applicant wrote to the respondent expressing his preference that the respondent continue to carry out the IC Review of the 27 July 2018 DFAT Decision and in lieu of doing so, accepted it may be preferable for the delegate of the respondent to make the recommendation to finalise the IC Review of the 27 July 2018 DFAT Decision pursuant to s 54W(a)(i) of the FOI Act.

57    On 29 May 2020, a delegate of the respondent wrote to the applicant advising of her decision to decline to undertake the IC Review of the 27 July 2018 DFAT Decision. The delegate advised, inter alia:

Based on the information before me at this time, I am satisfied that the Department has taken all reasonable steps to find documents within the scope of your request in accordance with section 24A of the FOI Act. In particular, I have taken into account the following:

1.     The Department has now undertaken searches on multiple occasions of both hard copy and electronic files held by the Australian High Commission Port Vila and the Australian Consulate-General Geneva, within the applicable date range and using the various names your father has been known by as listed in your request.

2.     The Department’s explanation that, in relation to the documents sought by you, it is only obliged to retain such records for five years, after which time it is open to the Department to destroy those records.

3.     The Department’s explanation as to why it cannot provide of a file’s destruction, namely because its searches concluded that it did not create or hold a file that could be identified as relating to your father.

4.     The Department’s explanation that it is not the lead agency with respect to extradition matters, and that international criminal justice cooperation, including extradition, is the portfolio responsibility of the Attorney-General’s Department. The Department submits that this would explain why the department (including overseas missions in Port Vila and Geneva) did not create a specific file to hold correspondence relating to your father.

…

I have had regard to:

•    The Department’s decision and reasons for decision;

•    the FOI Act, in particular sections 24A, 54W and 55D;

•    the Guidelines issued by the Australian Information Commissioner under section 93A of the FOI Act which agencies must have regard in performing a function or exercising a power under the FOI Act (FOI Guidelines), in particular paragraphs [3.85] to [3.94];

•    the parties’ submissions.

I am satisfied that the Department has taken all reasonable steps to find documents within the scope of your request and that documents do not exist or cannot be found. On that basis, I am satisfied that the matter is lacking in substance. In deciding whether to exercise the discretion or not to continue to undertake a review, I have considered … continuing to review this matter will not promote the objects of the FOI Act.

58    In relation to Decision 4, the substantive application was filed 74 days late.

Decision 5

59    On 1 May 2018, the applicant lodged a FOI request with AUSTRAC in the following terms:

In relation to my father Roger Gregory MATSON (DOB 7 June 1941) and any of the legal names been known by (Roger Gregory Fletcher; and Roger Temple BELL), I seek all documents, communications, correspondence, requests and reports created by AUSTRAC. This would include all internal AUSTRAC emails, letters, facsimiles, briefs, reports, case notes and requests that were made by AUSTRAC in relation to the Mutual Assistance between the Commonwealth Attorney-General’s Department and the US Department of Justice (USDOJ); or in relation to the AFP and FBI investigations of my father; or in relation to the potential prosecution of my father by the Commonwealth DPP during the period of 1 January 2000 to 9 April 2018.

My definition of “all communications, correspondence, requests and reports created by AUSTRAC would mean the inclusion of all emails, facsimiles, letters, requests, reports, AFP case notes, briefs of evidence, any legal advice created by AUSTRAC in relation to the Mutual Assistance made between the Commonwealth Attorney-General’s Department and the US Department of Justice (USDOJ), or in relation to the AFP and FBI investigations of my father, or in relation to the potential prosecution of my father by the Commonwealth DPP, or any notice created by AUSTRAC in relation to the Interpol “RED NOTICE ALERTS” that were issued for my father in 2002 and 2008, and any copies of warrants or applications for warrants created by AUSTRAC in relation to my father.

I would also like to request that the decision-maker handling this FOI request consider that the names of all Government Officials contained in documents be disclosed. I am not requesting Government Officials telephone numbers or contact details be disclosed.

(1 May 2018 FOI Request)

60    On 21 June 2018, AUSTRAC wrote to the applicant and advised of its decision to refuse the applicant’s 1 May 2018 FOI Request under s 24A of the FOI Act on the basis that the documents requested could not be found or do not exist (21 June 2018 AUSTRAC Decision).

61    On 3 August 2018, the applicant applied for an IC Review of the 21 June 2018 AUSTRAC Decision under s 54L of the FOI Act.

62    On 7 January 2019, the applicant provided submissions in the course of the IC Review of the 21 June 2018 AUSTRAC Decision. The applicant submitted that he was of the belief that additional documents within AUSTRAC and other government departments and agencies (that fell within the scope of his 1 May 2018 FOI Request) existed. The applicant submitted that he reached this conclusion because of his various FOI Requests and IC Review applications with other departments and agencies (some of which are Decisions 1 to 6 as set out in these submissions), documents he had been given access to referred to additional documents and in particular, an “AUSTRAC watch”. The applicant submitted, inter alia:

Unfortunately, it appears that Mr McCormack failed to make sufficient internal enquiries within AUSTRAC (including failing to make specific enquiries with AUSTRAC Officers and/or staff members may have previously had involvement with the ‘Matson matter’ and/or some knowledge of where the ‘AUSTRAC Reports’ and ‘AUSTRAC watch’ documents in relation to myself and my father would be located); and further failed to conduct the necessary ‘third party consultations with the AFP, the ATO, Centrelink, CDPP and the Attorney-General’s Department ICCA whom are all confirmed to have been involved in the ‘Matson matter’ and were all aware of AUSTRAC’s involvement.

63    On 22 January 2019, AUSTRAC made a decision in relation to a separate FOI Request of the applicant directed to the Australian Taxation Office (ATO), whereby the applicant sought access to all documents held by the ATO in relation to the applicant’s father (ATO FOI Request). AUSTRAC refused the ATO FOI Request on the basis that the documents transferred to AUSTRAC by the ATO were documents not subject to the scope of the FOI Act pursuant to s 7 (Exemption of certain persons and bodies) of the FOI Act. The ATO FOI Request was transferred to AUSTRAC on 8 January 2019.

64    On 8 August 2019, the respondent sought further information from AUSTRAC in relation to the searches it undertook in response to the applicant’s 1 May 2018 FOI Request.

65    On 14 August 2019, AUSTRAC provided submissions to the respondent in response to the respondent’s request of 8 August 2019. In those submissions, AUSTRAC set out the relevant legislative framework in relation to information access powers and information sharing between agencies with respect to AUSTRAC information. AUSTRAC submitted, inter alia:

AUSTRAC is confident that if it did generate and provide documents of any kind to other agencies, records of that would have been kept, consistently with AUSTRRAC’s standard record keeping procedure.

AUSTRAC notes the Applicant’s argument that the ATO Documents make reference to the AFP having placed an “AUSTRAC watch” on the Applicant’s financial activities, and that AUSTRA would have records in connection with that. AUSTRAC advises that whilst authorised agencies with access to AUSTRAC information (such as the AFP) may monitor the financial transactions of persons of interest, this does not in and of itself mean that AUSTRAC would have records of the authorised agencies’ monitoring activities. In the present case, AUSTRAC confirmed that it does not have any record of the “AUSTRAC watch” the AFP is alleged to have placed on the Applicant.

66    On 27 August 2019, the respondent wrote to the applicant requesting further information required by AUSTRAC to reasonably identify the financial transactions sought by the applicant.

67    On 10 September 2019, the applicant provided the respondent with the information sought by it on 27 August 2019. The respondent provided this information to AUSTRAC on 17 September 2019.

68    On 23 October 2019, AUSTRAC advised the applicant of its further decision under the FOI Act, in relation to 21 June 2018 AUSTRAC Decision (Decision 5) and the 6 June 2018 AUSTRAC Decision (Decision 6) that:

(a)     in relation to Roger Gregory Matson, Roger Gregory Fletcher, Roger Temple Bell , Baron Phillip Matson, Phillip Fletcher and Baron Bronstein, AUSTRAC refused the Applicant’s 1 May 2018 FOI Request on the basis that the documents cannot be found or do not exist; and

(b)     in relation to the Applicant’s alias, Jah Baz, AUSTRAC identified one document within the scope of the request. AUSTRAC decided to release that document to the Applicant in part, with information irrelevant to the scope of the Applicant’s request redacted under section 22(1)(a)(ii) of the FOI Act,

(together, the 23 October 2019 AUSTRAC Decision).

69    AUSTRAC confirmed that it intended for the 23 October 2019 AUSTRAC Decision to be a revised decision under s 55G of the FOI Act; however, due to an oversight, AUSTRAC furnished a fresh decision under the FOI Act to the applicant with internal review rights.

70    On 14 November 2019, the applicant applied for an internal review of the 23 October 2019 AUSTRAC Decision.

71    On 10 December 2019, AUSTRAC advised the applicant of its decision to refuse his application for an internal review of the 23 October 2019 AUSTRAC Decision (10 December 2019 AUSTRAC Decision).

72    On 16 December 2019, the applicant and the respondent had a teleconference whereby the applicant advised the respondent that he did not wish to lodge an application for an IC Review of the 10 December 2019 AUSTRAC Decision. The respondent therefore agreed to consider both the 23 October 2019 AUSTRAC Decision and the 10 December 2019 AUSTRAC Decision as submissions in support of the steps AUSTRAC undertook to find the documents falling within the scope of the IC Review of the 21 June 2018 AUSTRAC Decision (Decision 5) and the 6 June 2018 AUSTRAC Decision (Decision 6).

73    On 15 January 2020, the respondent sought further information from AUSTRAC in relation to the searches it undertook in response to the applicant’s 1 May 2018 FOI Request.

74    On 28 January 2020, in response to the respondent’s request on 15 January 2020, AUSTRAC submitted that:

AUSTRAC maintains back up data for extremely limited periods as a business continuity/disaster scenario measure. When documents are destroyed in accordance with archival scheduling, AUSTRAC can confirm it does not maintain back-ups of such data, which includes the 131 financial transactions already provided to the Applicant by the ATO.

75    On 19 February 2020, a delegate of the respondent wrote to the applicant to advise of the respondent’s intention to recommend that the applicant’s IC Review be finalised pursuant to s 54W(a)(i) of the FOI Act on the basis that the application for the IC Review lacked substance. The applicant was invited to provide reasons should he disagree with the proposed finalisation of his IC Review of the 21 June 2018 AUSTRAC Decision.

76    On 2 March 2020, a teleconference was held between the applicant and a delegate of the respondent to discuss the IC Review of the 21 June 2018 AUSTRAC Decision.

77    On 27 March 2020, a further teleconference was held between the applicant and a delegate of the respondent to discuss the IC Review of the 21 June 2018 AUSTRAC Decision.

78    On 15 April 2020, the respondent received submissions from the applicant in response to the respondent’s letter dated 19 February 2020. Among other things, the applicant submitted:

As I mentioned during our teleconference on 2 March 2020, in my humble opinion I believe that there is sufficient Government Document evidence, namely in FOI decisions made by the Australian Federal Police (the AFP) and the Australian Taxation office (the ATO) to indicate that AUSTRAC reports were created in relation to my father during the period of 2000 to 2018. So I respectfully make the further submission that in consideration of the established fact that AUSTRAC reports must exist in relation to my father, it is axiomatic that other associated administrative documents must also have been created in relation to my father, on the same grounds as I mentioned above, namely that AUSTRAC reports cannot just appear out of thin air, without any prior authorisation or some kind of administrative process happening at AUSTRAC, and, again, the question that arises is who requested these AUSTRAC reports in relation to my father be created? As I stated above, was it the Australian Federal Police (the AFP), the Australian Taxation Office (the ATO), the Commonwealth Director of Public Prosecutions (the CDPP), the Attorney-General’s Department (the AGD) or some other government department/agency or financial institution?

…

I appreciate that AUSTRAC has made submissions claiming that they have conducted reasonable searches for documents in relation to my father, and that no AUSTRAC documents exist, however, I respectfully draw your attention to the fact that prior to AUSTRAC locating the AUSTRAC reports in relation to myself (Jah Baz) as a result of IC review MR18/00599 (agency reference PIAT-1260), AUSTRAC had made an original FOI decision, and a subsequent internal review decision claiming that no documents existed in relation to myself. So, clearly there is some doubt as to the adequacy and professionalism of the AUSTRAC search process, and I believe the AFP and the ATO FOI decisions I have provided to the OAIC as evidence in support of my IC review submissions, which I believe establish beyond reasonable doubt that the AUSTRAC reports were created in relation to my father and that an AUSTRAC Watch was in place for my father, and that therefore it is axiomatic that other associated AUSTRAC documents in relation to my father must also exist.

79    The applicant further requested that:

(a)     the Respondent formally request AUSTRAC to conduct fresh searches in good faith for additional AUSTRAC reports and other associated AUSTRAC administrative documents in relation to the Applicant’s father and the AUSTRAC watch the Applicant submitted is said to be in place for his father;

(b)     the Respondent formally request AUSTRAC to provide evidence of the searches requested (as set out at paragraph 82(a) above in a format similar to the table created by the Attorney-General’s Department in their IC Review submissions furnished to the Applicant on 20 November 2019 (as set out above). The Applicant submitted this table should include details of initial searches that were conducted by AUSTRAC for their original and internal review decisions;

(c)     the Respondent formally request AUSTRAC to consider making enquiries with the AFP in an attempt to locate the AUSTRAC reports and other associated AUSTRAC administrative documents that the Applicant submits were created in relation to his father. In the event ASUTRAC discovers that any relevant documents were destroyed or likely to be destroyed, the Applicant submits that he expects this to be confirmed in writing by AUSTRAC including providing written submissions and evidence confirming why and when the destruction of the AUSTRAC documents occurred; and

(d)     the Respondent formally request AUSTRAC to consider making enquiries with the AFP in an attempt to locate the AUSTRAC reports and other associated AUSTRAC administrative documents that the Applicant submits were created in relation to his father, in circumstances where the AFP has specifically referred to AUSTRAC reports and an AUSTRAC watch the Applicant submits is in place in relation to his father.

80    On 26 May 2020, a delegate of the OIAC wrote to the applicant advising of her decision to decline to undertake the IC Review of the 21 June 2018 AUSTRAC Decision. The delegate advised, inter alia:

Based on the various submissions made by AUSTRAC and the evidence of the searches undertaken in response to your FOI Request, I am satisfied that all reasonable steps were taken to find documents you requested for the following reasons:

•    I am satisfied that AUSTRAC’s submissions explaining the locations searched, the search parameters used, and the evidence of search results provided by AUSTRAC show that it has taken comprehensive steps to locate documents by undertaking a reasonable search on a flexible and common sense interpretation of the request.

•    there is no evidence before the OAIC to suggest that AUSTRAC has actual or constructive possession of documents within the scope of your request but has not released those documents to you.

•    for those reasons, I would consider that it would be unreasonable to request that AUSTRAC undertake further searches for documents within the scope of your request.

•    despite your submissions to the contrary, AUSTRAC has in its submissions dated 14 August 2019 and 15 January 2020 confirmed the practice of destruction and removal of documents in its possession, and, in my view, has adequately explained why and when the destruction of any documents in relation to your father occurred. \

•    I accept AUSTRAC’s submissions in relation to the destruction of documents the scope of your request, namely that they have since been destroyed in accordance with archival scheduling. I do not require any further evidence to be satisfied that these documents have been destroyed, nor do I consider that it would be reasonable for AUSTRAC to provide further evidence in relation to this.

•    I am satisfied that AUSTRAC’s submissions dated 8 August 2019 adequately explain the legislative framework in relation to authorised agencies accessing AUSTRAC information to monitor the financial transactions of persons of interest and that this does not in and of itself mean that AUSTRAC would have records of these monitoring activities. I am also satisfied that AUSTRAC’s submissions adequately explain why it holds no record of any “AUSTRAC watch” referred to in documents released to you by the AFP; and

•    the right of access to documents under the FOI Act applies to documents of an agency that are subject to the FOI Act. In accordance with section 4(1) of the FOI Act, a “document of an agency” is defined as a document that is in the possession of the agency, whether created in the agency or received in the agency. AUSTRAC is not required to consult with other agencies in an attempt to locate documents that are not in its possession. I am therefore satisfied that it is not reasonable to request that AUSTRAC make enquiries with the AFP in this IC Review in an attempt to try and locate the AUSTRAC reports and AUSTRAC watch referred to by the AFP.

…

I have had regard to:

•    AUSTRAC’s decision and reasons for decision dated 21 June 2018.

•    AUSTRAC’s decision and reasons for decision dated 23 October 2019.

•    AUSTRAC’s internal review decision and reasons for decision dated 10 December 2019.

•    the FOI Act, in particular sections 24A and 55D;

•    the Guidelines issued by the Australian Information Commissioner under section 93A of the FOI Act which agencies must have regard in performing a function or exercising a power under the FOI Act (FOI Guidelines), in particular paragraphs [3.85] to [3.94];

•    relevant case law, in particular De Tarle and Australian Securities and Investments Commission (Freedom of Information) [2015] AATA 770.

•    the parties’ submissions.

I am satisfied that the Department has taken all reasonable steps to find documents within the scope of your request and that documents do not exist or cannot be found. On that basis, I am satisfied that the matter is lacking in substance. In deciding whether to exercise the discretion or not to continue to undertake a review, I have considered … continuing to review this matter will not promote the objects of the FOI Act.

81    In relation to Decision 5, the substantive application was filed 77 days out of time.

Decision 6

82    On 7 June 2018, the applicant lodged a FOI request with AUSTRAC in the following terms:

In relation to myself, Baron Phillip Matson (DOB 16 September 1977) and any of the legal names I have been known by (Phillip Fletcher; Baron Bronstein; and Jah Baz) I seek all documents, communications, correspondence, requests and reports created by AUSTRAC. This would include all internal AUSTRAC emails, letters, facsimiles, briefs, reports, case notes and requests that were made by AUSTRAC in relation to the Mutual Assistance between the Commonwealth Attorney-General’s Department and the US Department of Justice (USDOJ); or in relation to the AFP and FBI investigations of myself; or in relation to the potential prosecution of my father by the Commonwealth DPP during the period of 1 January 2000 to 31 May 2018.

My definition of “all communications, correspondence, requests and reports created by AUSTRAC would mean the inclusion of all emails, facsimiles, letters, requests, reports, AFP case notes, briefs of evidence, any legal advice created by AUSTRAC in relation to the Mutual Assistance made between the Commonwealth Attorney-General’s Department and the US Department of Justice (USDOJ), or in relation to the AFP and FBI investigations of myself or in relation to the potential prosecution of myself by the Commonwealth DPP, or any notice created by AUSTRAC in relation to the Interpol Red Notice Alerts that were issued for myself in 2002 and 2008, and any copies of warrants or applications for warrants created by AUSTRAC in relation to myself.

IMPORTANT NOTE: I specifically seek access to the complete AUSTRAC “file” for myself for during the entire period of 1 January 2000 to 31 May 2018.

I would also like to request that the decision-maker handling this FOI request consider that the names of all Government Officials contained in documents be disclosed. I am not requesting Government Officials telephone numbers or contact details be disclosed.

(7 June 2018 FOI Request)

83    On 6 June 2018, AUSTRAC wrote to the applicant and advised of its decision to refuse his 1 May 2018 FOI Request under s 24A of the FOI Act on the basis that the documents requested could not be found or do not exist (6 June 2018 AUSTRAC Decision).

84    On 14 August 2018, the applicant applied for an IC Review of the 6 June 2018 AUSTRAC Decision under s 54L of the FOI Act.

85    Following the applicant’s application for an IC review of the 6 June 2018 AUSTRAC Decision, AUSTRAC and the respondent began liaising with the respondent with respect to both the 6 June 2018 AUSTRAC Decision and the 21 June 2018 AUSTRAC Decision.

86    On 26 May 2020, a delegate of the respondent wrote to the applicant advising of her decision to decline to undertake the IC Review of the 6 June 2018 AUSTRAC Decision. The delegate set out the reasons for her decision in the same manner as set out in Decision 5.

87    In relation to Decision 6, the substantive application was filed 77 days out of time.

rELEVANT MATERIAL FILED BY THE APPLICANT

88    In an affidavit filed on 8 December 2020 in support of his application for an extension of time, the applicant deposed as to facts on which he relied for that application. Those facts were set out at paras [6]-[14] of the affidavit as follows:

6.     There is government document evidence which confirms that the Attorney-General's Department, the Department of Foreign Affairs and Trade (DFAT) and the Australian Transaction Reports and Analysis Centre (AUSTRAC) in the making of their FOI decisions did not adequately conduct searches, and that furthermore, additional documents within scope of the relevant FOI requests exist, and that therefore the Information Commissioner reviews (IC Reviews) subject of this application ought to have been discontinued under s 54W(b) of the FOI Act or continued through to their completion by the Office of the Australian Information Commissioner (the OAIC).

7.     The government document evidence and submissions were provided to the OAIC during the IC Review process, and I do not believe that the Attorney-General's Department, DFAT or AUSTRAC have made submissions or provided evidence to justify the OAIC's finding that my IC Reviews subject of this application are frivolous, vexatious, misconceived, lacking in substance or not made in good faith.

8.     In relation to the Attorney-General's Department IC Reviews, the Department have conceded that they may have created a schedule of documents for the two FOI decisions in question (the two FOI requests sought a schedule be prepared detailing all of the documents located in the preliminary searches for. two earlier FOI decisions that were both refused for capturing to many documents "practical refusal reason").

9.     The Attorney-General's Department's electronic document record management system "Content Manager" and their database software "MAX" both have the capability to automatically generate spreadsheets based upon selected "fields".

10.     The Attorney-General's Department IC Review submission that their departmental officers need to manually populate every spreadsheet is incorrect.

11.     AUSTRAC reports and watches are confirmed in AFP and ATO documents as being in place for my father Roger Gregory Matson, yet AUSTRAC has made IC Review submissions that no relevant AUSTRAC documents exist.

12.     No evidence of destruction of the AUSTRAC reports or associated documents in relation to my father and or in relation to myself have been provided by AUSTRAC.

13.     DFAT have confirmed that various officers and foreign posts have had involvement in both my and fathers matters over the years but have failed to locate the relevant DFAT email records and other associated documents referring to myself and my father.

14.     No evidence of destruction of the DFAT emails or associated documents in relation to my father and or in relation to myself have been provided by DFAT.

(Emphasis in original.)

89    At paras [15]-[30] of this affidavit, the applicant deposed that the substantive application was not filed in time, in summary, for the following reasons:

    When the applicant received Decisions 3-6, he was in the middle of “very serious and complex litigation” in this Court.

    The applicant had a number of other “complex” IC Reviews on foot and a significant amount of paperwork that required his ongoing attention.

    There was a change in management at the Correctional Centre in July 2020 which caused a number of changes at the prison, including limited or no access to computers for a number of months, resulting in the applicant having to prepare handwritten correspondence, applications and submissions.

    The applicant had been conducting telephone conferences with the respondent in relation to various IC Reviews, including for the IC Reviews subject of this substantive application.

    The applicant was under the mistaken impression that the respondent had indicated during one of the teleconference meetings that if a decision was made under s 54W of the FOI Act to discontinue any of his IC Reviews, he did not need to worry, as it would enable him to apply directly to the Administrative Appeals Tribunal (AAT) for them to conduct the review.

    When the applicant received Decisions 3-6 he “mistakenly” proceeded on the basis that he could apply directly to the AAT for review of those decisions. A number of months passed before the AAT was able to actually confirm that it did not have jurisdiction. Once his error came to light, the applicant took steps to make the correct application for review in this Court. It was an unintentional error on his part, and he proceeded in good faith, on the basis that the substantive application was the correct application to make.

    COVID-19 was causing a number of difficulties for prisoners, including delays in communications, and also caused difficulties for the operations and management of the Correctional Centre and for the Courts.

    When the applicant received Decisions 1 and 2, he was still awaiting the AAT to make a ruling on Decisions 3-6.

    Decisions 1 and 2 were only filed one day late, which may have been caused by COVID-19 delays due to the stage four total lockdown in place at the Correctional Centre at that time.

    The substantive application dated 1 September 2020 and his supporting affidavit to that application dated 2 September 2020 were provided by the applicant to Sentence Management at the Correctional Centre on 2 September 2020, and were emailed shortly thereafter to the Court.

    He was unsure why these documents were only accepted for filing by the Court on 15 September 2020.

90    In respect of the last point above, I note that the substantive application and its supporting affidavit were lodged electronically in the Federal Court of Australia at 1.44 pm on 8 September 2020, and were accepted for filing under the Court’s Rules at this time.

91    By a consent order dated 8 February 2021, I ordered the applicant to file, by 19 March 2021, any further evidence as to why his substantive application was not filed in time. On 15 March 2021, the applicant filed a further supporting affidavit. Annexed to the further supporting affidavit were the following:

    In relation to Decisions 3 and 4, “all of the documents provided to the applicant by the AAT Canberra Registry in relation AAT matter Baron Matson and Department of Foreign Affairs and Trade – 2020/3930” (marked BPM-7) and “all of the documents provided to the applicant by the AAT Canberra Registry in relation AAT matter Baron Matson and Department of Foreign Affairs and Trade – 2020/3931” (marked BPM-8).

    In relation to Decisions 5 and 6, “all of the documents provided to the applicant by the AAT Canberra Registry in relation AAT matter Baron Matson and Chief Executive Officer, AUSTRAC – 2020/3932” (marked BPM-9) and “all of the documents provided to the applicant by the AAT Canberra Registry in relation AAT matter Baron Matson and Chief Executive Officer, AUSTRAC – 2020/3933” (marked BPM-10).

Submissions of the parties

Submissions of the applicant

92    On 13 April 2021, the applicant filed submissions in support of his application for an extension of time. The applicant submitted that the following factors were relevant and permissible considerations for the Court in determining whether the applicant ought be granted an extension of time to lodge his substantive application:

(1)    The nature of the underlying application for review.

(2)    The explanation offered by the applicant for why the application was not filed in time.

(3)    The extent and efforts embarked upon by the applicant to file the application in time.

(4)    The prejudice to the respondent in terms of delay involved and consequential costs.

(5)    The merit of the underlying application for review and the potential to involve an undue waste of time.

(6)    The consideration of fairness to the applicant and the respondent.

(7)    “Equality of arms” in determining the application for an extension of time.

(8)    The importance of the issue under review.

(9)    The consequences to the applicant if the application for extension of time is refused.

(10)    Public interest factors.

93    It is useful to summarise in turn the applicant’s submissions in relation to these matters.

(1) The nature of the underlying application for review

94    The applicant submitted that the nature of the underlying application for review is

an application made under s 11(1)(c) of the AD(JR) Act for review of decisions made by the Australian Information Commissioner (Information Commissioner) and/or her delegate under s 54W(a) of the Freedom of information Act 1982 (FOI Act) to discontinue six Information Commissioner review (IC Review) applications subject of proceeding QUD288/2020.

(2) The explanation offered by the applicant for why the application was not filed in time

95    The applicant referred the Court to paras [15]-[30] of his supporting affidavit filed 8 December 2020, in which he outlined the factual basis as to why his substantive application was not filed in time.

(3) The extent and efforts embarked upon by the applicant to file the application in time

96    The applicant submitted, in summary, that:

    He had taken all reasonable steps to the extent that they were available to him to file the substantive application.

    The affidavit material filed in support of the application for extension of time established that he took the necessary steps to file the substantive application as soon as reasonably practicable.

    In relation to Decisions 1 and 2, he had provided the substantive application to the Sentence Management at the Correctional Centre on 2 September 2020, so it was beyond his control that the substantive application was filed on 15 September 2020.

    During the period of 2 September 2020 to 15 September 2020 the Correctional Centre was in “Stage 3” 24 hour lockdown. Riots were also occurring at the prison during this time.

97    I note again that the substantive application was actually lodged electronically in the Federal Court of Australia at 1.44 pm on 8 September 2020, and was accepted for filing under the Court’s Rules at this time. The date of 8 September 2020 was one day after the filing deadline had passed in respect of Decisions 1 and 2.

(4) The prejudice to the respondent in terms of delay involved and consequential costs

98    The applicant submitted that “there would be little to no prejudice to the Respondent in terms of the delay involved and/or any unreasonable consequential costs”.

(5) The merit of the underlying application for review and the potential to involve an undue waste of time

99    The applicant submitted, in summary:

    It was not reasonable for the respondent or her delegate to make the six decisions under s 54W(a) of the FOI Act in light of the evidence and submissions provided by the applicant to the respondent.

    This is particularly so when one considers:

(a)    the consequence of a decision made under s 54W(a) of the FOI Act was to discontinue an IC Review, which decision effectively ended any further review rights of the underlying FOI decision; and

(b)    that the respondent or her delegate had exercised her discretion to discontinue eighteen of the applicant’s other IC Review applications under s 54W(b) of the FOI Act which provides an opportunity for the IC Review application to be continued or conducted by the AAT.

    The substantive application for judicial review of the six decisions had merit, and had no potential to involve an undue waste of time, as the evidence indicated that the six decisions made by the respondent or her delegate ought to have been made under s 54W(b) and not under s 54W(a) of the FOI Act.

(6) The consideration of fairness to the applicant and the respondent

100    The applicant submitted that, in respect of the six Decisions, throughout the initial FOI process, the IC Review process before the Office of the Australian Information Commissioner (OAIC), the erroneous applications to the AAT, and in the substantive application and the application for extension of time in this Court, he had been and continued to be self-represented and incarcerated. In light of this, the applicant submitted that:

the interests of fairness strongly counsel that the Applicant ought be granted the extension of time, particularly in view that the Applicant has acted in good faith and proceeded without delay to file his 15 [sic] September Originating Application once it became apparent that the Applicant had incorrectly filed applications for review in the AAT.

(7) Equality of arms in determining the application for an extension of time

101    The applicant submitted that, due to him being self-represented, and without legal advice or representation, he had not had “equality of arms” throughout the IC Review process, the AAT process or in the current proceeding before the Court.

(8) The importance of the issue under review

102    The applicant submitted, in summary:

    The subject of the substantive application for review was “extremely important” – namely, denying the applicant relevant documents in relation to his challenge of the determination made by the Acting Attorney-General on 1 February 2019 under s 22 of the Extradition Act 1988 (Cth) to surrender the applicant to the United States of America to “face a potential 305 year prison sentence”.

    The issue was an important legal issue for the future of administrative law, particularly in view of the unique circumstances where:

(a)    the documents sought by the applicant in the FOI decisions have been lost or deleted by DFAT and AUSTRAC;

(b)    a schedule of documents was refused to be produced by the Attorney-General’s Department for a list of documents they had already located; and

(c)    the respondent had a justifiable basis to exercise her discretion under s 54W(b) of the FOI Act in relation to all six IC Reviews, which would have provided the applicant an opportunity to apply for a review of the FOI decisions in the AAT.

(9) The consequences to the applicant if the application for extension of time is refused

103    The applicant submitted that there would be severe consequences for him should the application for extension of time be refused, as there would be no other avenues available to the applicant to review the six FOI decisions, which were all subject of a decision of a delegate of the Commissioner made under s 54W(a) of the FOI Act.

(10) Public interest factors

104    The applicant submitted that the public interest in Government decision making, transparency and in the fair administration of justice all fall for consideration in this matter. He submitted that this was particularly so where:

    it appeared that the relevant documents in the possession of Commonwealth agencies and departments had either been deleted or lost, and/or refused to be produced;

    the applicant faced extradition to the United States of America; and

    the applicant faced the largest potential prison sentence in Australian legal history, namely some 305 years.

105    In conclusion the applicant submitted:

    Relevant factors weighed heavily in favour of the Court exercising its discretion to grant his application for extension of time.

    In the interests of justice being served, he ought be granted the extension of time.

    Decisions 1 and 2 were both extremely important to another proceeding which the applicant was appealing from a decision of a single judge in this Court, namely QUD 356 of 2020.

    The respondent exercised her discretion based upon information provided by the Attorney-General’s Department that was patently false, namely that the Attorney-General’s Department electronic document records management system called “Content Manager”, and associated database software called “MAX”, had no capability to create a spreadsheet.

Submissions of the respondent

106    In submissions filed 12 April 2021, the respondent contended that:

    the time limit prescribed for the ADJR Act for an applicant to bring an application for review is 28 days from the date the Decision was furnished to the applicant (s 11(3) of the ADJR Act);

    while the ADJR Act does not define any criteria which the Court should consider in deciding to exercise its discretion to grant an extension of time, the Court is guided by the well-established principles set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 186 (Hunter Valley).

107    In respect of issues concerning the applicant’s explanation for the delay in filing the substantive application, prejudice suffered by the respondent in respect of late filing, and the prospects of success of the substantive application, the respondent submitted, in summary, as follows.

(1) The applicant’s explanation for the delay in filing the substantive application

108    The respondent submitted that the applicant had attributed two principal reasons to explain the delay in filing the substantive application, being:

(a)    The COVID-19 pandemic caused a number of difficulties for inmates at the Correctional Centre, including a stage four lockdown. In particular, the applicant credited the stage four lockdown to subsequent delays and communication difficulties experienced by operations and management staff at the Correctional Centre.

(b)    In relation to Decisions 3-6, the applicant inadvertently filed the substantive application with the AAT, who did not have jurisdiction to hear those matters.

109    The respondent accepted that the COVID-19 pandemic likely influenced the applicant’s delay, in part; and further, given that the applicant was held on remand in custody at the Correctional Centre, he may not have had consistent access to the internet or communication facilities.

110    However, the respondent submitted that it would be open to the Court to find that the applicant’s application to the AAT was not a reasonable excuse for the delay. The respondent submitted that, in respect of all six decisions, she had furnished a letter (a total of six letters) to the applicant informing him that his complaints for each decision had been considered and that her views, being that each of the applicant’s complaints lacked substance, remained unchanged. Attached to each letter was a one page annexure entitled “Review rights” which outlined the avenues available to the applicant should he wish to seek review of the relevant decision. The respondent noted that, among other things, the annexure specifically stated:

Judicial review

You can apply to the Federal Court of Australia of the Federal Circuit Court for a review of a decision of the Information Commissioner if you think that a decision by the Information Commissioner not to review or not to continue to undertake review of your IC review application under the Freedom of Information Act 1982 (the FOI Act) is not legally correct. You can make this application under the Administrative Decisions (Judicial Review) Act 1977.

The Court will not review the merits of your case but it may refer the matter back to the Information Commissioner for further consideration if it finds the decision was wrong in law or the Information Commissioner’s powers were not exercised properly.

An application for review must be made to the Court within 28 days of the OAIC sending the decision or determination to you. You may wish to seek legal advice as the process can involve fees and costs.

111    I note that the letters from the respondent to the applicant to which the respondent referred were annexed to the affidavit of the applicant filed on 8 September 2020, and that in each one there was annexed a page headed “Review rights” setting out the information to which the respondent referred.

112    Further, while the respondent acknowledged that the applicant was self-represented, she submitted that the applicant:

    demonstrated he had a sound knowledge of the law and of his review rights otherwise; and

    accepted in his affidavit filed 8 December 2020 at para 27 that it should have been apparent that he was required to submit the substantive application with the Federal Court.

(2) Any prejudice suffered as a consequence of the grant of the application for extension of time

113    The respondent acknowledged that she had not suffered any prejudice arising from the applicant’s delay, however:

    The mere absence of prejudice to the respondent was insufficient to justify an extension of time and should not be accorded weight in favour of the applicant.

    It was not only prejudice between the parties which was relevant to the exercise of the Court’s discretion, but also the wider public interest.

    There was a public interest that time limits for reviews and administrative decisions should be observed, in order to assist with the proper administration of government agencies.

    It was open to the Court to consider broader public interest considerations, such as the need for finality in disputes, the efficient use of public resources, the appropriate allocation and expenditure of public funds (Fitzgerald J in Lucic v Nolan (1982) 45 ALR 411; [1982] FCA 217 at [416] (Lucic)). These broader public interest considerations weigh against an extension of time being granted.

(3) Prospects of success if the application for extension of time is granted

114    In respect of the prospects of success of the substantive application, the respondent submitted, in summary:

    It was not for the Court to determine the substantive application at this stage. However, an extension of time may not be granted if the substantive application was not reasonably arguable.

    At a reasonably impressionistic level, if the prospects of the success of the substantive application are “plainly strong” or “plainly weak”, this is relevant to the consideration of the other factors.

    There are a number of difficulties with the substantive application:

(i)    The substantive application fails to sufficiently particularise the grounds for review and does not offer any explanation as to the nature of the alleged errors. Under the heading “Details of claim”, at paras [1]-[4], the applicant identifies four grounds of review similar to those found at ss 5(1)(b), 5(1)(c), 5(1)(f) and 5(1)(j) of the ADJR Act, which are not particularised and do not offer any specifications as to the nature of the alleged errors. To the extent that paras [1]-[4] of the substantive application can be considered as grounds of review, they must be rejected on the basis that they make bare assertions unsupported by any particulars.

(ii)    The substantive application does not identify any jurisdictional error, genuine procedural error, or error of law. In the substantive application there are three numbered paragraphs under the hearing “Grounds of application” and nine numbered paragraphs in the text of the applicant’s supporting affidavit filed 8 December 2020 under the heading “Facts on which the applicant relies”. None of those paragraphs reveal any jurisdictional error, genuine procedural error, or error of law. These paragraphs, at their highest, can be understood as asserting that the Decisions were made ultra vires or contrary to law. Further, these paragraphs merely set out the applicant’s disagreement with the Decisions on the basis that they are “incorrect”.

115    The respondent further submitted:

    It was clear from the letters of the delegate advising the applicant of her decision to decline to undertake the IC Reviews that the delegate considered and took into account all material supplied by the applicant in his six requests for IC review.

    The delegate was satisfied on all six occasions that the IC Review applications were lacking in substance.

    The delegate gave reasons for the exercise of her discretion under the FOI Act not to undertake an IC Review.

116    The respondent concluded by submitting that it would be open to the Court to find that those findings were open to the delegate of the respondent on the evidence and material before her, and for the reasons she gave. In the circumstances, the decisions could not be said to lack an evident and intelligible justification.

Consideration

117    The approach the Court should adopt in considering an application for extension of time was explained by Wilcox J in Hunter Valley at 348-349 as follows:

1.     Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do. The "prescribed period" of twenty-eight days is not to be ignored (Ralkon Agricultural Co. Pty Ltd v. Aboriginal Development Commission (1982) 43 A.L.R. 535 at 550). Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucie v. Nolan (1982) 45 A.L.R. 411 at 416). It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time (Duff at 485; Chapman v. Reilly unreported (Federal Court of Australia, Neaves J., 9 December 1983) at 7).

2.     Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not "rested on his rights": per Fisher J in Doyle v Chief of Staff (1982) 42 A.L.R. 283 at 287) and a case where the decision-maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon and Douglas v. Allen (1984) I F.C.R. 287 with Lucic at 414-415 and Hickey v. Australian Telecommunications Commission (1983) 48 A.L.R. 517 at 519. The reasons for this distinction are not only the "need for finality in disputes" (see Lucic at 410) but also the "fading from memory" problem referred to in Wedesweiller v. Cole (1983) 47 A.L.R. 528.

3.     Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension: see Doyle at 287, Duffat 484-485, Hickey at 525-527 and Wedesweiller at 533-534.

4.     However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas, Lucic at 416, Hickey at 523. In this context, public considerations often intrude (Lucic, Hickey). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at 550, Becerra at 12-13) or of established practices (Douglas) is likely to prove fatal to the application.

5.     The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic at 417, Chapman at 6.

6.     Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion: Wedesweiller at 534-535.

118    These principles have been adopted many times over the years. The Full Court summarised them in BVG17 v BVH17 (2019) 268 FCR 448; [2019] FCAFC 17 at [134] as:

(1)     An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so.

(2)     The length of the delay is a relevant factor.

(3)     The applicant must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time.

(4)     Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time.

(5)     The merits of the substantive [application]… are properly to be taken into account.

119    Having regard to the three key issues of delay, prejudice and merits of the substantive application, I make the following findings.

Did the applicant show an acceptable explanation for the delay in filing the substantive application?

120    In relation to Decisions 1 and 2 I find that the applicant has provided an acceptable explanation for the delay in filing the substantive application. Indeed, quite properly no issue was taken by the respondent in relation to the applicant’s evidence that he experienced logistical difficulties in filing material by reference to the lock down of the correctional facility in which he resides, due to the COVID-19 pandemic in 2020.

121    However, I do not consider that the applicant has provided an acceptable explanation for the substantial delay in relation to Decisions 3, 4, 5 and 6 to filing the substantive application.

122    While the applicant submitted that it was not extraordinary that a self-represented litigant in his position, particularly when incarcerated, could make the error of assuming that these Decisions could be reviewed by the AAT, the applicant has conceded at [27] of his affidavit filed on 8 December 2020 that “it should have been apparent from the OAIC decisions that I needed to apply to the Federal Court of Australia for review and not the AAT, but I was unsure”.

123    The annexures to each Decision plainly stated that the applicant could apply under the ADJR Act to the Federal Court of Australia or the Federal Circuit Court for a review of the decision.

124    No real explanation was provided by the applicant as to why he decided to apply to the AAT in these circumstances, other than his alleged belief arising from an alleged comment of a delegate of the respondent during an unidentified teleconference that he could “apply directly” to the AAT (para [19] of the 8 December 2020 affidavit). I do not consider this evidence persuasive, or supportive of the applicant’s explanation for the delay in respect of Decisions 3, 4, 5 and 6.

Would the respondent suffer prejudice as a result of the grant of an extension of time to file the substantive application?

125    The respondent has conceded that she would not suffer prejudice as a result of the Court granting an extension of time.

126    The respondent also contended, relying on Lucic, that the mere absence of prejudice was inadequate to warrant an order favouring an extension of time, and the Court should also take account of other matters of public concern, including the need for finality in disputes, the efficient use of public resources, the appropriate allocation and expenditure of public funds.

127    While I agree that the mere absence of prejudice to the respondent does not warrant an order for extension of time, I am not persuaded that Lucic stands for the extended principle submitted by the respondent in this context. His Honour in Lucic at 416, in discussing other matters of public concern, was referring to the legislative intention that certain standards are to be observed in respect of reviewing administrative decisions, and that the legislative intention was not the only public interest to be served in so doing. It is unclear to me that Fitzgerald J in that case was suggesting that other matters of public concern were of relevance in determining whether an application for an extension of time ought to be granted. Certainly, his Honour went on to state that the applicant seeking an extension of time maintained throughout the burden of showing why, in all the circumstances, the extension of time should be granted, and noted that there will often be no question of prejudice to a respondent decision-maker.

128    In my view the absence of prejudice to the respondent is a factor to weigh in considering whether an extension of time should be granted.

Does the substantive application have reasonable prospects of success?

129    The Full Court has made it plain that appropriate caution is required at this interlocutory stage of the proceedings in assessing the merits of a substantive application, and that the question for the Court is whether the applicant’s case has reasonable prospects of success. As the Full Court observed in BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33]

(e) The merits of the substantial application are to be taken into account in considering whether an extension is to be granted. Leave will not be granted where there are no reasonable prospects of success on the appeal: Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]. The applicant will have no real prospects of success where the case is devoid of merit or clearly fails; is hopeless; or is unarguable. In making an assessment the Court is not required to go into too great a detail, but is to “assess the merits in a fairly rough and ready way”: Jackamarra v Krakouer (1998) 195 CLR 516 at [7] – [9].

130    Turning now to the substantive application and whether the applicant has reasonable prospects of success, I note first that the applicant relied primarily on s 54W of the FOI Act which provides:

54W Decision to review—discretion not to review

    The Information Commissioner may decide not to undertake an IC review, or not to continue to undertake an IC review, if:

(a)     the Information Commissioner is satisfied of any of the following:

(i)     the IC review application is frivolous, vexatious, misconceived, lacking in substance or not made in good faith;

(ii)     the IC review applicant has failed to cooperate in progressing the IC review application, or the IC review, without reasonable excuse;

(iii)     the Information Commissioner cannot contact the IC review applicant after making reasonable attempts; or

(b)     the Information Commissioner is satisfied that the interests of the administration of this Act make it desirable that the IC reviewable decision be considered by the Tribunal; or

(c)     the IC review applicant fails to comply with a direction of the Information Commissioner.

Note 1:     The Information Commissioner may make a decision under this section to review only part of an IC reviewable decision (see section 54U).

Note 2:     If the Information Commissioner makes a decision under paragraph (b), an application for review may be made to the Tribunal for review of the IC reviewable decision (see section 57A).

Note 3:     Division 1 of Part VIII sets out the circumstances in which a vexatious applicant declaration may be made in relation to a person. A declaration may permit the Information Commissioner to refuse to consider an IC review application if the person makes the IC review application under this section without the written permission of the Information Commissioner

131    Section 3 of the FOI Act provides that its objects are to give the Australian community access to information held by the Government of the Commonwealth, by:

(a)    requiring agencies to publish the information; and

(b)    providing for a right of access to documents.

132    Part III of the FOI Act governs a person’s right to access documents on request, and which categories of types of documents are exempt from disclosure should such a request be made. An individual who wishes to obtain access to a document of an agency may request access to the document under s 15 of the FOI Act. There are various formal requirements that ought to be followed in doing so, including that the request must be in writing.

133    Section 93A of the FOI Act provides:

Guidelines

(1) The Information Commissioner may, by instrument in writing, issue guidelines for the purposes of this Act.

Note: For variation and revocation of the instrument, see subsection 33(3) of the Acts Interpretation Act 1901.

(2) For the purposes of the performance of a function, or the exercise of a power, under this Act, regard must be had to any guidelines issued by the Information Commissioner under this section including, but not limited to, guidelines issued for the purposes of the following provisions:

(a) paragraph 9A(b) (information publication scheme);

(b) subsection 11B(5) (public interest factors);

(c) subsection 15(5A) (decisions on requests).

(3) Guidelines are not legislative instruments.

134    I also note s 9A of the FOI Act which provides:

Functions and powers under this Part

In performing a function, or exercising a power, under this Part, an agency must have regard to:

(a) the objects of this Act (including all the matters set out in sections 3 and 3A); and

(b) guidelines issued by the Information Commissioner for the purposes of this paragraph under section 93A.

135    Part 3 of the Freedom of Information Guidelines (FOI Guidelines) outlines the steps and considerations that ought to be undertaken when processing and deciding on requests for access, such as what is reasonable in the circumstances, and how decisions in this context are to be made. In particular, guideline 3.89 of the FOI Guidelines provides:

3.89    Agencies and ministers should undertake a reasonable search on a flexible and common sense interpretation of the terms of the request. What constitutes a reasonable search will depend on the circumstances of each request and will be influenced by the normal business practices in the agency’s operating environment or the minister’s office. At a minimum, an agency or minister should take comprehensive steps to locate documents, having regard to:

•    the subject matter of the documents

•    the current and past file management systems and the practice of destruction or removal of documents

•    the record management systems in place

•    the individuals within an agency or minister’s office who may be able to assist with the location of documents, and

•    the age of the documents.

(Footnotes omitted).

136    This guideline is consistent with s 24A of the FOI Act, which relevantly provides:

24A     Requests may be refused if documents cannot be found, do not exist or have not been received

Document lost or non‑existent

(1)     An agency or Minister may refuse a request for access to a document if:

     (a)     all reasonable steps have been taken to find the document; and (b)     the agency or Minister is satisfied that the document:

(i)     is in the agency’s or Minister’s possession but cannot be found; or

(ii)     does not exist.

    …

137    With this legislative framework in mind, I now turn to the substantive application annexed to the applicant’s affidavit filed on 8 December 2020. Relevantly, this application states as follows:

The Applicant applies to the Court to review the decisions of the Respondent:

•    Decision dated IO August 2020 not to continue to undertake a review under s. 54 W of the Freedom of Information Act 1982 (Cth) (the FOI Act) of my Information Commissioner review (IC Review) application of an FOI decision made by the Attorney-General's Department on 9 January 2019 (Office of the Australian Information Commissioner (the OAIC) reference: MRI 8/00814, Agency reference: FOI18/l03);

•    Decision dated IO August 2020 not to continue to undertake a review under s. 54W of the FOI Act of my IC Review application of an FOI decision made by the Attorney General's Department on 9 January 2019 (OAIC reference: MR18/00816, Agency reference: FOI18/107);

•    Decision dated 29 May 2020 not to continue to undertake a review under s. 54W of the FOIAct of my IC Review application ofan FOI decision made by the Department of Foreign Affairs and Trade (DFAT) on 27 July 2018 (OAIC reference: MRI8/00603, Agency reference: I 807-Fl994);

•    Decision dated 29 May 2020 not to continue to undertake a review under s. 54W of the FOI Act of my IC Review application of an FOI decision made by DFAT on 31 May 2018 (OAIC reference: MR18/00552, Agency reference: 1807-Fl877);

•    Decision dated 26 May 2020 not to continue to undertake a review under s. 54W of the FOI Act of my IC Review application of an FOI decision made by the Australian Transaction Reports and Analysis Centre (AUSTRAC) on 6 July 2018 (OAIC reference: MRI 8/00599, Agency reference: PIAT-1260); and

•    Decision dated 26 May 2020 not to continue to undertake a review under s. 54W of the FOI Act of my IC Review application of an FOI decision made by AUSTRAC on 21 June 2018 (OAIC reference: MRI 8/00552, Agency reference: PIAT-1124).

Details of claim

The Applicant is aggrieved by the decisions because:

1.    Procedures that were required by law to be observed in connection with the making of the decisions were not observed;

2.     The decisions involved an error of law;

3.    The decisions were affected by and reflect jurisdictional error; and

4.     The decisions were otherwise contrary law.

Grounds of application

1.    Contrary to subsection 54W(a), the decision to not continue to undertake a review of the Applicant's IC Review applications:

a)    was not based on evidence that suggested the relevant Departments and Agencies had conducted adequate searches or taken all reasonable steps to find the documents; and

b)    was not based on evidence that suggested the Applicant's IC Review applications were frivolous, vexatious, misconceived, lacking in substance or not made in good faith.

2.    A denial of procedural fairness occurred in connexion with the making of the decisions:

a)    in that the Applicant's further IC Review submissions in relation to the adequacy of the searches, excessive redactions, and the existence of additional documents were not properly considered; and

b)    in that the Applicant was not properly heard in relation to the decisions not to continue to undertake a review of the Applicant's IC Review applications.

3.    The decisions were infected by unreasonableness or serious irrationality or illogicality:

a)    in that there was a failure to properly consider the evidence provided by the Applicant which proved further additional documents must exist (including file cover pages for the relevant files containing documents captured);

b)     in all the circumstances no reasonable decision-maker could have come to those decisions, so the "reasoning process" was unreasonable, irrational or illogical.

Orders sought

1.    A Writ of Prohibition and other ancillary orders to quash, and to prohibit further enforcement of the said decisions made by the Respondent.

2.     An injunction to restrain the OAIC from:

a)    Giving effect to the said decisions; or

b)    Making or purporting to make further decisions to like effect otherwise than in accordance with s. 54W of the FOI Act.

3.     A Writ of Mandamus to compel a delegate of the Information Commissioner, other than Emma Liddle, to re-determine and remake the decision under s. 54W(b ), to allow the Administrative Appeals Tribunal to conduct a review of the FOI decisions referred to, or alternatively continue the IC Review process at the OAIC to its completion.

4.    Costs

138    I also have regard to the applicant’s written submissions and supporting affidavits, to ascertain whether further particularisation of his grounds is evident in that material. Relevantly the applicant contends, in summary:

    The substantive application has merit because it was not reasonable for the respondent to make the six decisions under s 54W of the FOI Act (Applicant’s Outline of Submissions filed on 13 April 2021 (AOS) para 12).

    The consequences of a decision to discontinue an IC Review are severe for the applicant (AOS para 13).

    The issue under review is important as it entails denial to the applicant of relevant documents in relation to his challenge of a determination under the Extradition Act 1988 (Cth) (AOS para 18).

    The issue under review is an important legal issue for the future of administrative law, and a matter of public interest, in circumstances where the documents sought by the applicant have been lost by DFAT and AUSTRAC, and where a schedule of documents was refused to be produced by the Attorney-General’s Department for a list of documents they had already located (AOS paras 19 and 21).

    In her submissions the respondent has travelled far beyond what could reasonably be considered as an impressionistic view of the merits of the applicant’s substantive application (Applicant’s Submissions in Reply filed on 6 May 2021 (ASR) para 15).

    The applicant intends to call witnesses from the Attorney-General’s Department to provide evidence as to the capabilities of the Attorney-General’s Department electronic document management system “Content Manager” and that of their associated database software “MAX” particularly regarding the issue of creating a spreadsheet with selected fields without manual population (ASR para 26).

    The material provided to the respondent during the IC Review process confirmed that the Attorney-General’s Department, DFAT, and AUSTRAC in making their FOI decisions did not adequately conduct searches and that additional documents within the scope of the relevant FOI requests exist (Affidavit of Baron Matson filed 8 December 2020 (2020 Affidavit) paras 6 and 7).

    In relation to Decisions 1 and 2, the Attorney-General’s Department conceded that it may have created a schedule of documents for the two FOI decisions in question (2020 Affidavit para 8).

    The Attorney-General’s Department’s electronic document record management system “Content Manager” and their database software “MAX” both have the capability to automatically generate spreadsheets based upon selected “fields” (2020 Affidavit para 9);

    The Attorney-General’s Department’s statement that their departmental officers need to manually populate every spreadsheet is incorrect (2020 Affidavit para 10).

    No evidence of the destruction of the AUSTRAC reports or associated documents in relation to the applicant’s father or the applicant have been provided by AUSTRAC (2020 Affidavit para 12).

    DFAT confirmed that various officers and foreign posts have had involvement in matters concerning both the applicant’s father and the applicant, but have failed to locate the relevant DFAT email records and other associated documents (2020 Affidavit para 13).

    No evidence of the destruction of DFAT emails or associated documents in relation to the applicant’s father or the applicant have been provided by DFAT (2020 Affidavit para 14).

139    I also note that the applicant filed a further affidavit on 15 March 2021 annexing documents he described as:

    Annexure “BPM-7”, being a copy of the documents provided to him by the AAT Canberra Registry in relation to AAT matter Baron Matson and Department of Foreign Affairs and Trade – 2020/3930;

    Annexure “BPM-8”, being a copy of the documents provided to him by the AAT Canberra Registry in relation to AAT matter Baron Matson and Department of Foreign Affairs and Trade – 2020/3931;

    Annexure “BPM-9”, being a copy of the documents provided to him by the AAT Canberra Registry in relation to AAT matter Baron Matson and Chief Executive Officer, AUSTRAC – 2020/3932; and

    Annexure “BPM-10”, being a copy of the documents provided to him by the AAT Canberra Registry in relation to AAT matter Baron Matson and Chief Executive Officer, AUSTRAC – 2020/3933.

140    I note that these annexures essentially comprise the decisions, the applicant’s correspondence with the AAT, and several sets of reasons of the AAT of 12 August 2020 finding that the decision in question was not reviewable by the AAT,

141    In his submissions and affidavit the applicant is strongly insistent that his substantive application has merit. However the strength of the applicant’s belief in the merits of his case does not necessarily translate into a finding that his case has reasonable prospects of success for present purposes.

142    Having considered the applicant’s material, and examined his substantive application, I have concluded that the substantive application does not have reasonable prospects of success. I have formed this view for the following reasons.

Ground 1(a)

143    First, in relation to ground 1(a) of the substantive application, the applicant claimed that the respondent’s decision was

not based on evidence that suggested the relevant Departments and Agencies had conducted adequate searches or taken all reasonable steps to find the documents.

144    This ground appears referable to s 24A of the FOI Act in relation to the conduct of the Attorney-General’s Department and DFAT (the Departments) and AUSTRAC following the applicant’s FOI requests, and in turn (I understand) s 54W of the FOI Act insofar as the respondent was satisfied that the review application should not be continued because adequate searches and reasonable steps had been taken by those Departments and AUSTRAC.

145    The extent to which, or manner in which, the evidence on which the respondent based her decisions was “inadequate” was not particularised, and is unclear in the absence of particularisation. However, on even a superficial examination of the material before me it is clear that, in each decision, the respondent referred to extensive evidence produced by the relevant department or agency, leading to her finding that adequate searches or reasonable steps had been taken to find the documents the applicant requested.

146    The detail provided by the respondent in Decision 4 is an example. In that decision the respondent referred to a communication from DFAT following its own internal review in the following terms:

In reviewing the decision, I have established that Ms Frech Cardenas has correctly identified all documents held by the Department that are relevant to your request. The Department has undertaken extensive searches within the Department (Australian Passport Office; Transnational Crime Section, Parliamentary Media Branch; Consular Operations; Corporate Records Branch) and at our overseas post in Washington. I am satisfied that no further documents are held. I note that the FOI Act only captures documents in this Department’s possession at the date your FOI request was received. It does not capture documents held by other agencies. I understand from your communication you have separately sought documents under FOI from other agencies.

…

As the Department is not the lead agency in extradition matters, we are not obliged to hold documents beyond the disposal date as set out in the Administrative Functions Disposal Authority or the Departmental Agency Functions Disposal Authority (issued under the Archives Act 1982 (Cth)). As such, consistent with the Department’s record destruction guidelines, general correspondence would have been destroyed.

I also note that you refer to documents which you believe should have been found at the overseas post in Washington. A diplomatic mission or consulate has no legal standing and is not a legal entity. Rather it houses various government agencies. For FOI purposes, each government agency represented at an overseas post is a separate FOI entity. The Department’s obligations to search for documents at post does not extend to documents held by other agencies at overseas posts.

I am satisfied thorough searches of this Department’s documents at Washington have been conducted. If you have concerns about the adequacy of document searches conducted by other agencies, you should direct your concerns to those agencies. Officers of other agencies (eg AGD and AFP) who are based in an overseas mission, are physically located within this mission and may use letterhead and email addresses which would not distinguish them from officers are not held by the Department – they are held by that agency.

After careful consideration of the material provided to me, I am confident that the Department has undertaken extensive searches and holds no further documents relevant to your FOI request.

147    In response to the respondent’s further request for information, DFAT provided submissions to the respondent dated 20 September 2019. The respondent noted in Decision 4 that DFAT submitted:

The Department has provided Mr Matson with all the documents held with regards to his FOI requests and regarding passport applications. This includes correspondence with the AFP in relation to both his and his father's passport applications. ·

I note that Mr Matson says in his application for IC review that no documents were released to him disclosing "information regarding when Department of Foreign Affairs and Trade Officers access my 'Passport holder details', nor were any Department of Foreign Affairs and Trade "internal" emails or communications in relation to 'my Passport holder details' disclosed ... " Mr Matson also states that the Department also did not provide any documents detailing which "Sections or Divisions of the Department of Foreign Affairs and Trade has previously requested access to my passport holder details" or documents regarding other entities that had requested access to his passport holder details. Mr Matson provided the OAIC with similar submissions in relation to his father (MRI8/00552).

Mr Matson did not request this information as part of FOIs MRI8/00551 and MR18/00552. The Department does have the capability to audit access logs on passport records but does not typically generate and store logs. For these reasons1 there was no basis for the Department to conduct searches or provide this information.

…

In his IC review applications, Mr Matson says that an attachment is missing from an email released to him by the Department.

…

Mr Matson's passport history attachment was included at pages 4-6 of the documents provided to Mr Matson. This document is included in the document schedule at Attachment A.

…

In his IC review application, Mr Matson contends that the-Department would be in possession of more correspondence with the AFP than the emails dated 29 September 2015 that were released to him in matters MRI8/00551 and MRI8/00552. In particular, Mr Matson contends that the Department would have corresponded with the AFP in relation to his and his father's 'change of name' deed poll documents filed with the DFAT Passport Office for a new passport in 2003.

…

No additional correspondence between the Department and AFP was located in the processing of these requests. The Department does not typically consult with AFP on name changes.

148    On 22 November 2019, the respondent sought further submissions from DFAT in relation to the searches it undertook to find documents within the scope of the applicant’s request. The respondent noted that DFAT provided submissions on 19 December 2019 including:

Mr Matson's FOI request (paragraph three) makes specific reference to the Australian Embassy in Washington. D.C, U.S.A. Mr Matson's FOI request does not mention or refer to the Australian High Commission in Port Vila or the Australian Consulate General in Geneva. Based on a common sense interpretation of the FOI request, the department undertook searches in areas it reasonably expected would hold documents related to the request. This included the following line areas, as set out in the department's internal review decision to Mr Matson on 31 May 2018:

Australian Passports Office (APO) and the Consular Operations Section (CNB): as Mr Matson had requested communications, correspondence, requests and reports in relation to his father, the department identified APO and CNB as areas that may hold relevant documents;

Transnational Crime Section (TSB): noting the law enforcement nature of the agencies listed by Mr Matson in his FOI request, the department identified TSB as a line area that may hold relevant documents;

Australian Embassy in Washington: as Mr Matson specifically mentioned the embassy in his FOI request; and Parliamentary and Media Branch (PRB) and Corporate Records Branch (COR): for completeness, the department also identified the PRB and COR as potential areas, which could assist with identifying other line areas in the department that may hold relevant documents.

Accordingly, the department tasked these areas (APO, CNB, TSB, PRB, COR and the Australian Embassy in Washington) to undertake reasonable searches to identify any documents pertaining to Mr Matson's request.

On the face of Mr Matson’s FOI request, there was no indication the Australian High Commission in Port Vila and the Australian Consulate-General in Geneva would hold documents. Based on the ordinary interpretation of Mr Matson’s FOI request, it had no reason to believe that the Australian High Commission in Port Vila and the Australian Consulate General in Geneva would be potential areas to task to undertake searches. Therefore, it did not task the Australian High Commission in Port Vila and the Australian Consulate-General in Geneva to undertake searches at the time of processing Mr Matson's FOI request.

Had the outcome of the department's searches in any of the six areas mention in paragraph 5 indicate that the Australian High Commission in Port Vila or the Australian Consulate-General in Geneva held documents captured by Mr Matson’s request, the department would have tasked these missions to undertake searches.

…

The offices of whole government agencies co-located with the department in Australian high commissions, embassies and consulates overseas are not an extension of the department. Accordingly, in undertaking searches, it would not be reasonable for the department to task whole of government agencies co-located in Australian high commissions, embassies and consulates overseas to undertake searches as they are separate Government agencies. This is consistent with the department's usual approach to processing FOI requests. Where the department's searches identify documents relevant to another whole of government agency, the department's usual practice would be to consult with that agency, where appropriate.

(Emphasis in original).

149    Reference to Decisions 1, 2, 3, 5 and 6 reveal similarly extensive investigations by the respondent, and similarly detailed answers and evidence from the respective Department/agency. In relation to the applicant’s inquiries concerning electronic records held by DFAT for example, in Decision 3 the respondent noted the evidence of DFAT concerning its electronic records, including the following:

Up until 2013, Lotus Notes was the department's email system and any emails saved were predominantly held on paper files. While the department did not have a centralised electronic filing system at the time, the department did have shared group drives. As part of the transition process emails saved on the shared group drives that were required to be retained were imported to EDRMS. .

In searching for the emails relevant to Mr Matson's request, the department searched EDRMS. This was the appropriate location to search, because it is the department's system for electronic filing. In line with the department's Records Management Policy, departmental officers are required to keep a record of business transactions conducted as part of their duties for the department. The department's Records Management Policy requires records (as defined in the Archives Act 1983 (Cth)) to be filed in EDRMS. No records were found through this search. As noted above, in accordance with the department's obligations under its Agency Functions Disposal Authority, if the department has any emails requested by Mr Matson, the department would most likely have destroyed those records five years after the action was completed. ·

As noted above, EDRMS is the department's official record keeping system. The department's Record Management Policy requires records (as defined in the Archives Act 1983 (Cth)) to be captured into a contextually relevant file (for example, a file with relevant function and activity descriptors from the Business Classification Scheme in EDRMS). In line with this policy, departmental officers have an obligation to keep a record of business transactions conducted as part of their duties for the department.

In 2011, the department migrated all its operations to EDRMS and all documents previously saved by the department on group and shared drives were migrated to EDRMS. In processing FOI requests, the department - typically through relevant line areas, overseas missions or the Corporate Records Section - undertake searches for documents held on EDRMS to identify documents relevant to an individual’s FOI request.

The department submits that in light of paragraph 3.92 of the OAIC FOI Guidelines, it is not necessary for the Department to undertake searches of its back-up systems, as its back-up system merely duplicates documents that are retrievable from EDRMS, its main records system.

150    Ultimately, in ground 1(a) the applicant cavils with the respondent’s assessment of the evidence before her, and her view of whether the searches and/or steps taken by the relevant Department or agency were adequate. In the absence of particularisation, it is entirely unclear to me on what basis the applicant alleged in the substantive application, that the evidence before the respondent suggested that the respective Departments and AUSTRAC had failed to conduct adequate searches or taken all reasonable steps to find the documents he sought.

151    I also note that, in his affidavit of 8 December 2020, the applicant made various assertions, including by reference to the alleged capabilities of the Attorney-General’s Department’s electronic management systems, and the absence of evidence of destruction of records by AUSTRAC and DFAT as they stated to the respondent. However even taking as an example Decisions 1 and 2, in both decisions the respondent noted and accepted the Department’s evidence concerning the limitations of its electronic management systems, the requirement that its officers would need to manually populate every spreadsheet, and problems with the creation of a schedule of documents.

152    Section 54W of the FOI Act permits the respondent to not continue an IC Review if she is satisfied, inter alia, that the application lacks substance. The word “satisfied” in the context of judicial review was the subject extensive discussion by the High Court in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16, however ultimately error must be pleaded and demonstrated in respect of the manner in which the relevant decision-maker reached the relevant state of satisfaction. No error in the respondent’s treatment of this evidence, and her state of satisfaction, is identified in respect of these Decisions on this ground (other than assertions of the applicant).

153    In the absence of such particularisation, this ground of review has no reasonable prospect of success.

Ground 1(b)

154    In ground 1(b) the applicant claimed that the decision of the respondent to not continue to undertake a review of his applications:

was not based on evidence that suggested the Applicant’s IC Review applications were frivolous, vexatious, misconceived, lacking in substance or not made in good faith.

155    However, even at a high level, the following is clear:

    The respondent decided not to continue the reviews, specifically because she concluded that the applications were lacking in substance. Contrary to ground 1(b), the respondent plainly did not make a decision on the basis that the evidence suggested the applicant’s applications were frivolous, vexatious, misconceived, or not made in good faith.

    In the absence of particularisation, the basis of ground 1(b) is entirely unclear. Rather, it appears an assertion.

    The respondent in each case stated that she found the applications lacking in substance because she considered the relevant Department/Agency had taken all reasonable steps to find documents falling within the scope of the applicant’s request within the meaning of s 54W of the FOI Act. How the respondent erred in so concluding is not particularised in this ground of review.

    Prima facie, given the apparent volume of explanations provided by the relevant Departments and AUSTRAC to the respondent, as set out in each of the respondent’s decisions, it was open to the respondent to be satisfied that those Departments and AUSTRAC had taken all reasonable steps to find documents, and that the applicant’s IC Review applications were lacking in substance.

156    This ground of review has no reasonable prospect of success.

Ground 2

157    The applicant contended in ground 2 that he had been denied procedural fairness by the respondent in that his submissions were not properly considered, and he was not properly heard.

158    These allegations are not particularised. It is difficult to ascertain how the applicant claims that his submissions were not considered by the respondent, in circumstances where it appears on the face of each decision that the respondent painstakingly set out

    the applicant’s submissions to her,

    her responses to him during the course of consideration of his applications, and

    details of the teleconferences the applicant had with staff of the respondent. Indeed the applicant acknowledged in his evidence that he had had “teleconference meetings” with the OAIC (2020 Affidavit para 19).

159    In the absence of particularisation, it appears that ground 2 is simply an assertion by the applicant that he was denied procedural fairness because the respondent did not accept his submissions. The applicant does not particularise how he was not “properly heard”.

160    This is not a proper basis for a claim of denial of procedural fairness. Ground of review 2 has no reasonable prospects of success.

Ground 3

161    In ground of review 3 of the substantive application the applicant alleged that the decisions were infected by unreasonableness or serious irrationality or illogicality, because:

(a)    the respondent failed to consider evidence provided by the applicant proving that further additional documents must exist; and

(b)    no reasonable decision-maker could have come to those decisions.

162    In so alleging, the applicant clearly relies on principles explained in such decisions as Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 and Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28.

163    In the absence of particularisation it is difficult to understand the basis on which the applicant makes this claim. I understand that, in Decision 5 for example, the respondent referred to submissions by the applicant concerning documents he had obtained from government agencies, on the basis of which the applicant believed that additional AUSTRAC documents existed. However, as matters presently stand, there is no material of substance before me to gauge the prospects of success of this ground of review.

164    Certainly it is unclear to me how the respondent could not have rationally reached the conclusions she did in each decision, noting what appears to be the lengthy and detailed treatment of the applicant’s submissions and material before her in each decision.

165    In my view this ground has no reasonable prospect of success.

CONCLUSION

166    In circumstances where the substantive application has no reasonable prospects of success, the application for extension of time in which to file it should be dismissed.

167    The respondent submitted that, in the event she was successful, there was no reason to depart from the general rule that costs should follow the event. The applicant submitted that if he were successful, any question as to costs should be reserved.

168    As the respondent has been successful, costs should follow the event. The applicant should pay the respondent’s costs, to be taxed if not otherwise agreed.

Associate:

Dated:    23 June 2021