VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	
vcat reference No. Z574/2024	
CATCHWORDS	
Review and Regulation List – Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 71 – Review of rejection of application for review of decision of Information Commissioner – Whether decision to refuse access to documents – Whether deemed refusal.	

APPLICANT	Manu Chopra	
RESPONDENT	Victorian Institute of Teaching	
WHERE HELD	Melbourne	
BEFORE	R Tang AM, Senior Member	
HEARING TYPE	Section 71 Hearing	
DATE OF HEARING	26 November 2024	
DATE OF ORDER and reasons	10 December 2024	
CITATION	Chopra v Victorian Institute of Teaching (Review and Regulation) [2024] VCAT 1172	

Orders

For the reasons given, under section 71(5)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the Principal Registrar’s rejection of the application is confirmed.

R Tang, AM
Senior Member			

APPEARANCES:		
For Applicant	In person	

Reasons
1	On 24 June 2024, Dr Manu Chopra lodged an application for review seeking review of a decision of the Information Commissioner made on 2 May 2024 (‘IC Decision’).  
2	In his application, Dr Chopra indicated that it was being made under section 50(1)(b) of the Freedom of Information Act 1982 (Vic) (‘FOI Act’).  That section allows an applicant to apply to VCAT for review of ‘a decision of the Information Commissioner refusing to grant access to a document in accordance with a request’.  
3	The IC Decision was made following a review, conducted under section 49F of the FOI Act, of the decision made by the Victorian Institute of Teaching (‘VIT’) to refuse access to certain documents requested by Dr Chopra under section 25A(5).  That section permits an agency to refuse to grant access to documents where ‘it is apparent from the nature of the documents as described in the request that all of the documents to which the request is expressed to relate are exempt documents’.
4	In the Notice of the Decision, the Information Commissioner advised that he was:
not satisfied that the requirements for the application of section 25A(5) are met in relation to [Dr Chopra’s request].  
The effect of my decision is that the [VIT] is required to make a new decision on [Dr Chopra’s] request without considering the application of section 25A(5).
5	The Information Commissioner went on to indicate that his decision would ‘not take effect until the Agency’s 14 day review period expires’. That is a reference to an application for review of a decision of the Information Commissioner made by an agency under section 50(3D), with section 52(9) providing that any such application must be made within 14 days.  Relevantly, on 9 May 2024, the VIT applied for review of the IC Decision (proceeding Z436/2024).
6	An accompanying letter sent by the Information Commissioner to Dr Chopra dated 3 May 2024 advised him that ‘under section 50(1)(b), you have a right to apply to [VCAT] for review of my decision’.  However, on 4 September 2024, the Information Commissioner sent a letter to Tribunal, which he copied to Dr Chopra, indicating that the statement was erroneous because his decision ‘was not a decision to refuse access to documents’ (and included an apology to Dr Chopra for the error and any inconvenience caused).
7	On 9 July 2024, the Acting Registrar for VCAT’s Administrative Division rejected the application (‘Rejection Decision’) under section 71(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’).  The accompanying letter indicated that this was on the basis that it ‘does not otherwise comply with the Act, the regulation or rules.  This was because the Acting Registrar was not satisfied that the Information Commissioner ‘has refused to grant access to a document in accordance with the request’ as required by section 50(1)(b) of the FOI Act. 
8	On the same day, Dr Chopra emailed the Tribunal registry to reconsider the matter in light of the Information Commissioner’s letter of 3 May 2024.  This was treated as an application for review by the Tribunal of the Rejection Decision.
Framework for review 
9	Under section 71(5) of the VCAT Act, on review, the Tribunal may either confirm the rejection of an application or order the principal registrar to accept the application.  
10	The Tribunal undertakes a fresh review having regard to the evidence before it, with a view to making the correct or preferable decision in the circumstances.
11	Under section 71(1), an application to the Tribunal may be rejected in various circumstances, including where the application ‘is made by a person not entitled to make it’.  The only issue for determination in this proceeding is whether Dr Chopra is entitled to make an application to VCAT in respect of the IC Decision.
12	It is important to observe, at the outset, that, unlike the Supreme Court of Victoria, the Tribunal does not have any inherent jurisdiction to hear matters or undertake judicial review.  Rather, applications for review of decisions are made in the Tribunal’s ‘review jurisdiction’ under sections 42 and 48 of the VCAT Act.  Relevantly, the sections refer to jurisdiction being conferred on the Tribunal ‘under an enabling enactment’ and require that jurisdiction be invoked by ‘a person who is entitled to do so by or under an enabling enactment’.  
13	As then Deputy President Lambrick observed in Helmer v The Secretary to the Department of Health and Human Services, ‘unless and until the application is accepted by the Tribunal, there is no proceeding on foot’.  
The scope of Dr Chopra’s submissions
14	Dr Chopra failed to comply with the Tribunal’s orders dated 2 August 2024 to provide an outline of his submissions by 12 November 2024.  The Tribunal’s registry followed up on 22 November 2024 and also to confirm if Dr Chopra was ready to proceed, given he had indicated in other VCAT matters that he was not well enough to proceed to hearing. 
On 24 November 2024, Dr Chopra emailed the Tribunal confirming that he wished to proceed and provided an outline of submissions.  He also indicated that he wished to rely on the ‘reasons for application’ set out in his application for review, as well as an email sent to the Tribunal on 9 July 2024.
15	Dr Chopra made detailed oral submissions on 26 November 2024.  
16	Without leave, Dr Chopra sent a further email to the Tribunal on 5 December 2024, purporting to add an additional basis for his application, being section 49J(2) of the FOI Act, ‘[i]f the [Information Commissioner] did not make a timely decision as it now claims’. He requested that his application be amended in this regard, suggesting that he had ‘submitted this on 2 November 2024 and this should not be overlooked’.  
17	I record that I am not aware of (and the Tribunal’s registry has been unable to locate) any communications from the Dr Chopra to the Tribunal on 2 November 2024.  Further, if he is referring to his oral submissions on 26 November 2024, no (or no clear) application to amend his application for review to rely on section 49J(2) was made during the hearing.
18	At the end of the 5 December 2024 email, Dr Chopra states ‘[n]one of my Submissions which have been seriously advanced should be overlooked … because this would be a denial of natural justice’.  He added that he ‘fear[s] that at times, “inconvenient” arguments made by [him] are ignored by the Tribunal’.
19	I observe that, if it true that the Tribunal has failed to respond to some arguments Dr Chopra considers he has made in other matters (of which there is no evidence before me), this may well be a result of: 
•	his failure in those matters to comply with orders of the Tribunal as to the timing and length of submissions (including by continually referencing other documents); and/or
•	the argumentative and circumlocutory manner in which he tends to present his oral submissions.
20	In this proceeding, I have endeavoured as best as I can to address the substance of Dr Chopra’s arguments as I understood them.
Procedural failures by the Acting Registrar
21	In his written submissions, Dr Chopra complains that, in the Rejection Decision, the Acting Registrar has failed to explain various matters including ‘which provision of the VCAT Act or the VCAT regulations or rules’ his application fails to comply with.  
22	Dr Chopra also contends that the Acting Registrar has failed to act in a manner which is compatible with the ‘proper interpretation’ of the FOI Act and in accordance with his human rights under sections 15(2) and 32(1) of the Charter of Human Rights and Responsibilities Act 2005 (Vic) (‘Charter’).
23	Dr Chopra also disagrees with the Acting Registrar’s statement that the Information Commissioner did not refuse to grant access to the documents he requested, suggesting that this is just a ‘conclusion’, without reasoning.  He adds:
just a simple ‘thought experiment’ on the logical outcome of the [Rejection Decision] would show that the decision … cannot be correct as a matter of law under the correct interpretation of the FOI Act and the VCAT Act.
24	Finally, Dr Chopra suggests the Rejection Decision was ‘unlawful and likely also invalid’, referencing various provisions of the Charter.  During the hearing, Dr Chopra made reference to various cases about the human right to seek information and the right to work (to which the documents he seeks are suggested to be relevant).
25	There is a simple response to all of Dr Chopra’s complaints about the Rejection Decision.  As indicated at the outset, the Tribunal’s role is to conduct a merits review and consider afresh the question of whether Dr Chopra was entitled to make the application.  
26	The Tribunal has no jurisdiction to engage in judicial review as to whether the decision was erroneous.  As such, those arguments are simply misconceived.
Information Commissioner made a decision refusing to grant access to documents
27	Dr Chopra contends that, in making the IC Decision, the Information Commissioner has made a decision refusing to grant access to documents in accordance with his request, therefore enlivening his review rights under section 50(1)(b) of the FOI Act.
28	As best I can ascertain, the basis for this contention is as follows:
•	He made a request for ‘[a]ll documents showing legal expenses invoiced to or incurred by the [VIT] in relation to him’ for a specified period.
•	The VIT refused to provide access to those documents, without processing the request on the basis that all of the documents, should they exist, would be exempt under sections 32(1), 33(1), 34(1)(b) and 34(4)(a)(ii).
•	Instead of making a ‘fresh decision’ as required under section 49P(1), the Information Commissioner sent it back to the VIT for reconsideration.  This is based on the Information Commissioner’s statement that the effect of his decision was that the VIT ‘is required to make a new decision on [Dr Chopra’s] request without considering the application of section 25A(5)’ (rather than, for example, directing the VIT to process the FOI request).  Dr Chopra submits that the only power of the Information Commissioner to refer a matter back to an agency is under section 49L.  He also suggests that the Information Commissioner could have required the VIT to process or identify a reasonable sample of documents under section 49KA(2) (but failed to do so).
•	He has not received the documents he requested and, having regard to the statement referred to, the VIT may make a fresh decision not to process his request under section 25A(1), or might even choose to do nothing.
29	At the outset, I observe there is some complexity with respect to a review of a decision to refuse access to documents which is based on section 25A.  These complexities were discussed to some extent in my decision in Victorian Legal Services Commissioner v Grahame (No 2) (‘Grahame’) and arise from the fact that, by definition, the FOI request has not been processed and documents responding to that request may not have even been identified.  
30	It is notable that, in Grahame: 
•	the Acting Public Access Deputy Commissioner had determined that section 25A(5) did not apply to the decision and required the applicant agency to process the respondent’s FOI request; and
•	the applicant agency raised an issue as to the power of the Information Commissioner to require an agency to process a request.
31	In that case, as the Tribunal was also not satisfied that section 25A(5) applied, the applicant agency was directed to process the request. As I observed in Davis v Department of Health, while the Tribunal does not have an ‘explicit power to require an agency to process documents’ when overturning a section 25A decision, that is what is routinely done to progress the FOI request. 
32	Importantly, however, it necessarily follows that: 
•	the agency must make a new or fresh decision on the FOI request after completing its processing; 
•	the decision would not necessarily result in the original FOI applicant obtaining any or all of the documents sought.  This is because the processing of an application necessarily includes consideration of whether any exemption applies (in part or in whole) to the actual documents identified as responding to the request; and
•	if the agency claimed that some or all of the documents (or parts thereof) were exempt, and the original FOI applicant was dissatisfied with that decision, this would re-enliven a right to seek review by the Information Commissioner (and then VCAT if the Information Commissioner agreed with the agency). 
33	I accept the general proposition that the object set out in section 3(2) of the FOI Act is to promote access to documents ‘promptly and at the lowest reasonable cost’.  I also accept that it is apparent that there may well be an extended delay before an original FOI applicant gets access to the documents he or she sought where the exemption in section 25A(5) (or section 25A(1)) has been asserted.  However, that is a natural consequence of the legislature allowing agencies to make decisions refusing to process requests.  
34	Returning to the issue at hand, I do not accept Dr Chopra’s submissions that the Information Commissioner made a decision refusing to grant access to a document in accordance with his request.
35	In reality, the IC Decision was a decision to set aside the VIT’s decision to ‘refuse to grant access to the documents in accordance with the request without having identified any or all of the documents’.  However, there is nothing in the IC Decision that could be construed as a decision to refuse access to documents, whether under section 25A(1) or under Part IV of the FOI Act.
36	While there are some cases where both an agency and a FOI applicant may file an application seeking review of a decision of the Information Commissioner, this would be in a situation where, for example, the Information Commissioner releases some documents that the agency had claimed to be exempt (enlivening the agency’s review rights under section 50(3D)) and confirmed the agency’s decision that other documents were exempt (enlivening the FOI applicant’s review rights under section 50(1)(b)).  
37	However, there is nothing to support a legislative intention to allow competing applications in the case of a binary decision whether to confirm a decision under section 25A(5) (or section 25A(1)) or require a new decision without regard to that provision.  
38	Accordingly, in my view, Dr Chopra was not a person entitled to make an application to the Tribunal under section 50(1)(b) by reason of the IC Decision.
Failure by the Information Commissioner to make a decision
39	Section 49J provides that, if the Information Commissioner fails to complete a review of an agency’s decision within 30 days after a FOI applicant has made a request for review (or any extended period allowed), then he is taken to have made a decision refusing to grant access to the document.  This then enlivens the ability of the FOI applicant to seek review by VCAT under section 50(1)(b).
40	As best I understand it, Dr Chopra is contending that, if the Information Commissioner has not made a decision refusing to grant access to documents, then he has not made any decision and so his review rights are enlivened by reason of the combined operation of section 49J and 50(1)(b).
41	I think it is doubtful that the Tribunal’s powers to amend a document under section 127 of the VCAT Act would allow such a fundamental change to the basis for an application given: 
•	what was said by Deputy President Lambrick in Helmer as to the status of the proceeding pending review of a rejection (see [13]); and 
•	a section 71 review is ordinarily conducted ex-parte (i.e. without the other named party).  This is the case because the application has not been accepted and, unless and until it is accepted, there is in fact no respondent.  Indeed, in most cases, the named respondent is not even notified of the application (although in the present case, it seems the VIT was made aware of it).  If the Tribunal were to allow the basis of the application to be amended, without hearing from the named party, it might well be acting in breach of the rules of natural justice
42	In any event, I am not satisfied that section 49J operated in this case.  
43	This is because I consider that the Information Commissioner did make a ‘decision’, being the decision to require the VIT to make a decision on Dr Chopra’s FOI request without considering the application of section 25A(5).  
44	As noted at the outset, the IC Decision enlivened the right of VIT to apply to VCAT for review under section 50(3D) which it has, in fact, exercised.  Of course, Dr Chopra knows that because, in accordance with the Tribunal’s ordinary practices, he is the named respondent (noting the Information Commissioner cannot be a party) and participated in a directions hearing concerning that application.  
45	Dr Chopra has all the rights of a respondent to participate in the hearing and, in due course, will no doubt press the orders he claims to be appropriate.  As I understand it, the relief he seeks is an order directing VIT to process his FOI request.  As already indicated that is what the Tribunal routinely orders if the preconditions to a section 25A(5) claim have not been satisfied.
46	In my view, the legislature did not intend – and the legislation should not be construed so as to allow – inconsistent applications, namely:
•	an application by an agency to seek review of a decision under section 50(3D); and 
•	an application by the person who made the FOI request to seek review of a deemed decision to the opposite effect under the combined operation of 49J and 50(1)(b).
Conclusion
47	For these reasons, I consider that the Acting Registrar made the correct or preferable decision to reject Dr Chopra’s application, which must be confirmed. 

R Tang, AM
Senior Member