The Department of Immigration and Border Protection has denied suggestions it sought to delay access to information about asylum seekers on Nauru after receiving a letter from the Nauruan government, saying a six-month lag was due to a mistake made by a “junior officer.”
At a public hearing of the Administrative Appeals Tribunal, which reviews government decisions, lawyers for the department attributed the delay in fulfilling a freedom of information application to a simple error.
But they argued the FOI should be appealed on the grounds it could reasonably be expected to damage Australia’s international relations, a concern that “had arisen” since March.
“I can categorically deny that there’s any inference that can be taken from the evidence before the tribunal that there’s been some sort of deliberate tactic to delay proceedings,” the department’s lawyer, Elena Arduca, said.
It comes two weeks after a department official accidentally sent an email to Guardian Australia about the “freezing” of Nauru-related freedom of information requests.
The department is seeking an extension to appeal the information commissioner’s decision on a freedom of information request made by the Melbourne lawyer Alex Cuthbertson about the number of asylum seekers or refugees on Nauru who identify as a specific language group, religion and nationality.
Cuthbertson is representing a woman who was raped and became pregnant during her time as an asylum seeker on Nauru. She made the FOI in July 2015 to assist in a high court application to prevent the woman, who was flown to Australia to have the pregnancy terminated, from being returned to Nauru.
She argued that the delay in receiving information prejudices her client, who could be deported to Nauru on 72 hours’ notice.
The 28-day appeal period on the information commissioner’s decision expired in April but the department did not lodge its application with the tribunal until 14 September.
Arduca, reading from a statement by Karen Tulloch, the assistant director of the department’s FOI division, said the file had been “inadvertently closed” by a “junior officer” and that Tulloch only became aware of the mistake when Cuthbertson sent a follow-up letter on 18 August.
She referred to the information being sought as “statistics” and said it was both private personal information, which the information commissioner rejected, and too impersonal to be relevant to Cuthbertson’s client.
Liz Bennett, counsel for Cuthbertson, said a “sophisticated litigant” like the department ought to be able to meet procedural requirements.
“Any other litigant, in my respectful submission, would not be given the indulgence of referring to and blaming a nameless third party for failing to take appropriate steps,” she said.
Bennett said the move to block the release of the information under section 33 of the Freedom of Information Act, which refers to international relations, was not substantiated.
Concern about the diplomatic impact of the information appears to coincide with Guardian Australia’s publication on of the Nauru files, a collection of more than 2,000 documents that catalogued alleged abuse and mistreatment of asylum seekers in the island’s Australian offshore processing centre.
On 26 August, the tribunal heard, two weeks after the Nauru files were published, the Nauruan government sent a letter requiring they be informed of information requests about the offshore processing.
“The Nauruan government ought to be given the opportunity to have something to say about what the consequences might be for itself and for the third party if the information was to be released,” Arduca said.
The tribunal’s deputy president, Stephanie Forgie, hearing the case, reserved her decision.
