Balbir Singh v Australian Information Commissioner
[2025] FedCFamC2G 280
•28 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Balbir Singh v Australian Information Commissioner [2025] FedCFamC2G 280
File number: PEG 143 of 2024 Judgment of: JUDGE LADHAMS Date of judgment: 28 February 2025 Catchwords: ADMINISTRATIVE LAW – whether a ground in s 5 of the Administrative Decisions (Judicial Review) Act 1975 (Cth) is established – whether the Australian Information Commissioner denied the applicant natural justice – whether the Commissioner’s decision involved an improper exercise of power because the Commissioner relied on irrelevant considerations or failed to take into account relevant considerations – whether the Commissioner applied a rule or policy without considering the merit of the case – whether the Commissioner’s decision was induced or affected by fraud
PRIVACY LAW – decision of the Australian Information Commissioner not to investigate a privacy complaint made by the applicant on the basis that the privacy complaint was lacking in substance
Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Privacy Act 1988 (Cth) ss 36, 40, 41
Cases cited: CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
HT v The Queen (2019) 269 CLR 403; 93 ALJR 1307; [2019] HCA 40
Madzikanda v Australian Information Commissioner [2023] FCA 1445
Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 (2020) 271 CLR 550; [2020] HCA 46
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365; [2006] FCAFC 142
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65; [2023] HCA 15
R v Australian Broadcasting Tribunal; Ex Parte Hardiman (1980) 141 CLR 13; [1980] HCA 13
Simjanovska v Department of Human Services [2019] FCA 499
Division: Division 2 General Federal Law Number of paragraphs: 90 Date of last submission: 23 December 2024 Date of hearing: 13 November 2024 Place: Perth Applicant: The applicant appeared in person Counsel for the Respondent: Mr B Tomasi Solicitor for the Respondent: Australian Government Solicitor ORDERS
PEG 143 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JASBIR BALBIR SINGH
Applicant
AND: AUSTRALIAN INFORMATION COMMISSIONER
Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
28 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The application before the Court is an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) for judicial review of a decision made by a delegate of the Australian Information Commissioner (Commissioner) under s 41 of the Privacy Act 1988 (Cth) (Privacy Act) not to investigate a complaint made by the applicant, Ms Balbir Singh, in relation to Avant Mutual Group Limited (Avant).
Broadly, Ms Balbir Singh alleges that the Commissioner’s decision is affected by the following types of errors:
(a)the Commissioner breached the rules of natural justice: s 5(1)(a) of the ADJR Act;
(b)the making of the decision was an improper exercise of power because the Commissioner took into account irrelevant considerations or failed to take into account relevant considerations: s 5(1)(e), (2)(a) and (2)(b) of the ADJR Act;
(c)the Commissioner exercised the power in accordance with a rule or policy without considering the merits of the case: s 5(1)(e) and (2)(f) of the ADJR Act; and
(d)the Commissioner’s decision was induced or affected by fraud: s 5(1)(g) of the ADJR Act.
For the reasons explained below, Ms Balbir Singh has not established that the Commissioner’s decision is affected by any of the errors she alleges. The application to this Court is therefore dismissed.
RELEVANT FACTUAL BACKGROUND
Ms Balbir Singh’s privacy complaint
On 7 June 2023 Ms Balbir Singh submitted a privacy complaint to the Office of the Australian Information Commissioner (OAIC) about Avant. The form used by Ms Balbir Singh to make the complaint invited her to provide details of how her privacy had been interfered with, and indicated that it would assist if she could explain:
•What happened
•When it happened (including dates)
•What personal information of yours was affected
•Who did it (include names of individuals involved if known)
•How and when you found out about it
•What response, if any, you have received from the Respondent?
Ms Balbir Singh described her complaint in the following way:
I believe that the lawyers involved were working with the Australian Police and New Zealand Police and other agencies to cause me losses and damages, an innocent woman whose entire life has been destroyed by corrupt and fraudulent agencies. My anaesthesia training with ANZCA (Australia New Zealand College of Anaesthetists), another corrupt agency has been destroyed. Every part of my life has been destroyed and damaged as a woman and doctor. I believe that my personal and private information has been leaked around.
A letter from Avant dated 9 October 2019 was submitted with the privacy complaint. It was headed ‘Re: Internal Dispute Resolution’ and referred to a complaint by Ms Balbir Singh about Avant’s management of a claim she made to Avant.
Communications between Ms Balbir Singh and the OAIC about her complaint
On 22 March 2024 a delegate of the Commissioner wrote to Ms Balbir Singh by email expressing a preliminary intention to exercise the Commissioner’s discretion to close Ms Balbir Singh’s complaint without investigation:
(a)under s 41(1)(c) of the Privacy Act, on the basis that the complaint was made more than 12 months after Ms Balbir Singh became aware of the act or practice the subject of the complaint; and
(b)under s 41(1)(d) of the Privacy Act, and the basis that the complaint was lacking in substance.
Ms Balbir Singh was invited to respond to the information in the email of 22 March 2024 before any final decision was made. The response was to be provided by 5pm AEDT on 29 March 2024 and Ms Balbir Singh was advised that in order for the OAIC to assist her, she would need to provide the following information about how Avant mishandled her personal information:
•a detailed description about what happened
•when your concerns occurred or originated
•what types of personal information were affected (for example, your name, email address, date of birth)
•who was involved (include names if known)
•how and when you found out about the concerns
•a copy of your complaint to Avant about your privacy concerns, along with any response you received from Avant.
Ms Balbir Singh replied to this email on 22 March 2024 indicating that she would like to respond and on 25 March 2024 the delegate of the Commissioner advised Ms Balbir Singh by email that the time frame for her to respond had been extended to 2 April 2024 to take into account public holidays.
On 28 March 2024 Ms Balbir Singh provided a partial response to the Commissioner’s request for further information and requested an extension of time to 5 April 2024 to provide further information. In relation to the concerns raised by the delegate of the Commissioner about the delay in making the complaint, Ms Balbir Singh provided information about medical conditions that prevented her from lodging claims in a timely manner, explained that her concerns were previously dismissed when she raised them, allegedly due to the fraudulent, racist and corrupt conduct of agencies, and said that she has only recently, in 2024, learned some relevant information. In relation to the request for information about how Avant mishandled her personal information, Ms Balbir Singh expressed the view that Avant manipulated her and the information she provided in 2017 and 2018 for the purposes of her case and provided the information to government agencies in Australia and New Zealand that caused her harm and losses. She said that Avant was not honest with her about what it was using her information for, did not properly acquire accurate information and did not properly advocate for her best interest in Australia and New Zealand. Ms Balbir Singh expressed the belief that Avant mishandled her personal information in 2017 and 2018 causing her financial loss in relation to prospective compensation claims and allowing large amounts of funds to be embezzled by perpetrators of harm against her. Ms Balbir Singh also provided information about her belief that Avant mishandled her workplace matters.
Also on 28 March 2024 the delegate of the Commissioner granted Ms Balbir Singh the requested extension of time to 5 April 2024 and again reiterated the type of information she would need to provide.
On 29 March 2024 Ms Balbir Singh requested a further extension of time to 8 April 2024 and on 2 April 2024 the Commissioner’s delegate granted this request.
On 8 April 2024 Ms Balbir Singh provided a further response to the Commissioner’s request for information. The information was provided in an attachment to the email. Some of the information was similar to the information provided by Ms Balbir Singh on 28 March 2024. Ms Balbir Singh further explained that she engaged Avant between 2016 and 2018 to assist her in relation to her anaesthesia training and provided relevant information to Avant about incidents that occurred in New Zealand and Australia, including in her workplace and in training. Ms Balbir Singh expressed the view that it is possible that Avant worked with corrupt agencies to cause her damage. Ms Balbir Singh said that she was not aware of Avant’s mishandling of her personal information until recently and that the types of personal information affected were her name, email address, date of birth and health information regarding issues that occurred in her work and personal life. Ms Balbir Singh also indicated that she was still looking for the complaint to Avant about her privacy concerns and Avant’s response and she would provide them within 24 hours.
The decision of the delegate of the Commissioner
On 12 April 2024 a delegate of the Commissioner found that Ms Balbir Singh’s privacy complaint was lacking in substance and exercised the discretion in s 41(1)(d) of the Privacy Act not to investigate her complaint.
The delegate provided the following reasons for this view:
Within your emails of 28 March 2024 and 8 April 2024, you express your belief that Avant mishandled your personal information in 2017 and 2018. You claim Avant were not honest with you about what they were using your personal information for and that Avant ‘…did not properly acquire accurate information…’ about your claim.
You claim Avant caused you harm and/or loss by allowing ‘…large amounts of fund to be embezzled by perpetrators of harm against me…’. You further claim Avant allowed fraud and corruption to occur with regards to your workplace injury matter involving your employer in New Zealand.
While I acknowledge the seriousness of your claims and the harm and/or loss you claim to have experienced, you have not presented specific information or evidence to support your claims, or to explain what specific acts or practices Avant has engaged in to cause you to experience said harm and/or loss. You have also not provided your original complaint to Avant, along with any response you may have received from Avant in response to lodging your complaint with them.
Therefore, the information you have provided has not changed my view that your complaint is lacking in substance.
The delegate did not rely on s 41(1)(c) of the Privacy Act in making this decision. Rather, the delegate acknowledged the information that Ms Balbir Singh provided about her personal circumstances which she claimed prevented her from submitting her claims in a timely manner and her assertion that she only recently became aware that Avant had mishandled her personal information. Based on the information Ms Balbir Singh provided, the delegate was not satisfied that it would be suitable to decline to investigate the complaint on the basis that Ms Balbir Singh had been aware of the acts or practices the subject of the complaint for more than 12 months.
Communications between the OAIC and Ms Balbir Singh after the delegate’s decision
On 12 April 2024, after the delegate had delivered the decision in this matter, Ms Balbir Singh provided additional information to the OAIC.
On 16 April 2024 the Commissioner’s delegate responded to Ms Balbir Singh’s email, noting that three of the four documents provided by Ms Balbir Singh appear to comprise information provided by Ms Balbir Singh on 8 April 2024 which was considered in the decision and that the fourth document contained additional information which had not previously been provided to the OAIC. The delegate expressed the view that the additional information did not provide a basis to reconsider the decision made on 12 April 2024 that the privacy complaint was lacking in substance.
THE APPLICATION TO THIS COURT
The grounds of application
Ms Balbir Singh commenced proceedings in this Court by way of an application for judicial review of the Commissioner’s decision filed on 1 May 2024.
Ms Balbir Singh relies on an amended application filed on 29 September 2024. The amended application contains the following details of claim and grounds of application:
The Applicant applies to the Court to review the decision of the Australian Information Commissioner (OAIC) and its delegate who decided not to investigate my complaints against AVANT under Section 41(1)(d) of the Privacy Act 1988 (Cth) (the Privacy Act). The delegate of the OAIC stated that my complaint lacked substance and that is untrue. The Appellant believes that the OAIC’s decision is tainted with fraud, racism and corruption. Procedural fairness has been denied to the appellant, preventing fair outcomes for the appellant in this case in Australia. The appellant asks the court to review the decisions made by the OAIC, and overturn these decisions under the Administrative Decisions (Judicial Review) Act 1977, so that this matter can be properly investigated.
Details of claim
The Applicant is aggrieved by the decision because :
1.The appellant believes that the OAIC has evaluated this case wrongly. It is not lacking in substance and the appellant has only been made aware in 2024 of the extent of fraud/corruption involving Agencies of Australia and New Zealand, including AVANT.
2.The OAIC has not considered the appellants serious physical and mental injuries resulting in the delays to bring her complaints forward.
3.The OAIC should consider investigating AVANT because of the extent of damages and harm the appellant has suffered. She has suffered serious health injuries and multimillion dollar losses.
4.Natural Justice has been obstructed as a result of this decision by the OAIC.
Grounds of application
1. Fraud and Corruption. Miss Balbir Singh is not convinced that the OAIC considered all the information provided to it. The OAIC has not given adequate flexibility to the appellant to provide all the information necessary. The appellant was also not aware of the level of fraud, racism and corruption involved in her cases years ago, because she has only gained insight about this now, in 2024.
2. Procedural fairness has been denied to the appellant, preventing fair outcomes for the appellant in this case in Australia. It is an abuse of process, that a breach of the rules of natural justice occurred in connection with the making of the decision by the respondent and that the decision was induced or affected by fraud.
3. Significant apprehension of bias against the appellant Miss Balbir Singh, resulting in the OAIC not considering Miss Balbir Singh’s serious health injuries or extraordinarily bad circumstances properly. The only consideration which appears has been given regard to, is the desire to wrongfully persecute the claimant and not provide her with justice/assistance. Discretionary powers may have been exercised in bad faith by the respondent because of the wrongful unsavoury rumours spread about Miss Balbir Singh everywhere by a corrupt agency. This has realistically significantly affected the services available to her in the community and in all levels of hierarchy/agency. There are high levels of agency involvement in Miss Balbir Singh’s, day to day activities as well as in the fraudulent negative outcomes of her serious injury compensation claims even till now in 2024, thus it is very possible that even the OAIC’s decision making is biased against Miss Balbir Singh.
4. There appears to be an element of inflexibility and an error of law whereby injured Citizens are expected to comply with rigid timeframes which they cannot possibly undertake. This would be serious discrimination and would constitute a violation of the Human Rights Act as well as a violation of the United Nations Convention on disability, racial and sex discrimination. The appellant has suffered serious deprivation of her liberties in Australia and New Zealand, and these appear to be extended to the decision making of the OAIC.
5. There has been an improper exercise of power because relevant considerations about this specific case have been disregarded. Miss Balbir Singh has been through extraordinarily harmful circumstances and these circumstances as well as the merits of this case, have not been considered properly by the decision makers.
Although the application confirms that it is brought under the ADJR Act, as can be seen from the extract above, in setting out the grounds of the application, Ms Balbir Singh did not identify the specific paragraphs of s 5 of the ADJR Act upon which she relies.
The Commissioner in her submissions identified the grounds in s 5 of the ADJR Act that the Commissioner believes correspond to the applicant’s grounds. The Commissioner’s submissions at [11] read:
The grounds of review alleged by the Applicant in her Amended Application do not precisely correspond with errors of the kind found in s 5 of the ADJR Act. However, it appears that the Applicant raises at least the following:
(a)by grounds 1, 2 and 3, a breach of the rules of natural justice (ADJR Act, s 5(1)(a));
(b)by grounds 1, 3 and 5, the making of a decision in an improper exercise of power by taking into account irrelevant considerations or failing to take into account relevant considerations (ADJR Act, s 5(1)(e) and (2)(a) and (b));
(c)by ground 4, the exercise of power in accordance with a rule or policy without considering the merits of the case (ADJR Act, s 5(1)(e) and (2)(f)).
At the commencement of the hearing before the Court, I arranged for Ms Balbir Singh to be shown a copy of s 5 of the ADJR Act by having it displayed on screen via Microsoft Teams and referred her to the grounds in her application and the Commissioner’s characterisation of those grounds in [11] of her submissions.
Ms Balbir Singh agreed with the Commissioner’s characterisation of her grounds, save for that she also queried whether there was a ground of fraud pursuant to s 5(1)(g) of the ADJR Act. I address the fraud issue below.
The relief claimed by Ms Balbir Singh
In her amended application, Ms Balbir Singh seeks the following relief:
1.The appellant would like for the OAIC to investigate AVANT thoroughly.
2.The appellant would like for adequate financial compensation for the extensive damages she has suffered.
For the reasons explained in the section below headed ‘The role of the Court’, the Court cannot require the Commission to investigate her privacy complaint. The Court has no power in this application to order the Commissioner to conduct any investigation into Avant.
Even if I were to find that Ms Balbir Singh established one of the asserted errors under s 5 of the ADJR Act, there would be no basis to award her any financial compensation. The only issue properly before the Court is the lawfulness of the Commissioner’s decision not to investigate her privacy complaint. If I find that Ms Balbir Singh has established that the Commissioner made one of the errors asserted, the appropriate relief would be to quash the Commissioner’s decision and require the Commissioner to reconsider the matter according to law. This is not an appropriate forum to consider whether Ms Balbir Singh has suffered damage as a result of the past conduct of other agencies or organisations, or whether she might be entitled to any financial compensation arising out of other causes of action against other persons.
The information before the Court
The documents before the Court comprise:
(a)the originating application and the amended application;
(b)an affidavit of Ms Balbir Singh filed with the originating application;
(c)the Commissioner’s response;
(d)the application book filed on behalf of the Commissioner (exhibit 1);
(e)six affidavits of Ms Balbir Singh filed on 17 September 2024;
(f)submissions of both parties filed before the hearing; and
(g)supplementary submissions of both parties filed after the hearing, addressing Ms Balbir Singh’s allegation of fraud.
Some of Ms Balbir Singh’s communications to the Court contain information which might properly be characterised as submissions. It is not appropriate for a party to litigation to provide submissions by way of letters and emails. I have reviewed the communications to the Court, the most substantial being a letter dated 22 November 2024. To the extent that any issues raised in the communications are relevant to the determinative issues in this proceeding, the information is contained in the filed materials and oral submissions and it is appropriate for me to have regard in this judgment to the filed materials and oral submissions rather than other communications made to the Court.
There are a few observations to make about the information before the Court and the submissions of the parties.
First, in accordance with the observations of the High Court in R v Australian Broadcasting Tribunal; Ex Parte Hardiman (1980) 141 CLR 13; [1980] HCA 13, the Commissioner did not take the role of an active contradictor, but rather provided submissions to assist the Court. This was an appropriate course for the Commissioner to take and the Commissioner’s submissions were thoughtful and considered and assisted the Court.
Second, the documents that were before the Commissioner at the time of the decision are set out in the application book, exhibit 1.
Third, Ms Balbir Singh, in her affidavits to the Court, provided many documents that relate to matters for which (I infer) she sought Avant’s assistance or which otherwise relate to her interactions with other government agencies or her belief that she is entitled to assistance or compensation from government agencies. Most of these documents were not provided to the OAIC prior to the delegate’s decision. The Commissioner did not object to the admissibility of any of the affidavits filed by Ms Balbir Singh, although Counsel for the Commissioner submitted that they might not be afforded much weight. In circumstances where Ms Balbir Singh represented herself throughout the hearing and where there was no objection to the admissibility of the affidavits, I allowed them to be read into evidence. I did, however, indicate to Ms Balbir Singh that the affidavit evidence might not be given weight in determining the issues relevant to the resolution of this proceeding, and invited her in her submissions to identify any documents that she considered to be particularly relevant to the issues before the Court and to explain why they are relevant.
Fourth, much of the information provided by Ms Balbir Singh in her affidavit evidence and in her written and extensive oral submissions to the Court relating to the reasons she was dissatisfied with Avant, other issues she has faced and information about her history of problems in both Australia and another country was not directly relevant to the issues to be determined by the Court and contained detailed personal information, including sensitive information, about Ms Balbir Singh. The disclosure of so much personal information and sensitive information in open Court, where that information is not directly relevant to the issues to be determined, appears somewhat incongruous with the apparent purpose of this application and the complaint to the Commissioner relating to Ms Balbir Singh’s desire to protect her personal information. I have reviewed all documents that Ms Balbir Singh has provided to the Court, listened to her oral submissions and reviewed the transcript after the hearing. I understand and appreciate that the matters raised by Ms Balbir Singh are very important to her. However, I have chosen not to summarise Ms Balbir Singh’s submissions or evidence in this judgment other than where I consider it to be directly relevant to the issues to be determined. I intend no disrespect by this approach, but rather wish to avoid unnecessarily referring to sensitive information in a judgment that will be published on publicly available websites.
Ms Balbir Singh’s request for a further hearing
Following the hearing, Ms Balbir Singh wrote to my chambers and requested a further hearing. I have determined that a further hearing in this matter is not necessary because I am satisfied that Ms Balbir Singh has had an adequate opportunity to present her case. In reaching this view, I have had regard to the following matters:
(a)Ms Balbir Singh’s affidavit and evidence were referred to me before they were accepted for filing. When I first reviewed the documents that Ms Balbir Singh electronically lodged on 17 September 2024, I formed some concerns that Ms Balbir Singh may not properly appreciate the limited nature of this proceeding. I listed the matter for a directions hearing at which I explained to Ms Balbir Singh the role of the Court in this proceeding and the types of matters that the Court can consider in a judicial review proceeding. I afforded Ms Balbir Singh an opportunity to amend her documents prior to them being accepted for filing and afforded her additional time to do this, which necessitated changing the hearing date of the matter.
(b)When the matter came before the Court for hearing on 13 November 2024, I again made explanations to Ms Balbir Singh about the nature of the proceeding and the role of the Court and showed Ms Balbir Singh a copy of s 5 of the ADJR Act, which sets out the relevant grounds that can be raised in a proceeding of this nature.
(c)Ms Balbir Singh provided some 28 pages of written submissions (excluding annexures) to the Court in total, and well over 400 pages in additional evidence to that contained in the application book.
(d)Ms Balbir Singh made extensive oral submissions to the Court. After Ms Balbir Singh concluded her oral submissions, Counsel for the Commissioner indicated that he proposed to rely on the Commissioner’s written submissions without making further oral submissions. Ms Balbir Singh then indicated that she wished to make further oral submissions. Although Ms Balbir Singh had already had an extensive opportunity to make submissions, in circumstances where I had indicated at the start of the hearing that, after Counsel for the Commissioner made his oral submissions, she would have an opportunity to respond, I gave Ms Balbir Singh a further opportunity to make submissions in response to anything in the Commissioner’s written submissions. Ms Balbir Singh gave further oral submissions to the Court, raising many matters that were not in response to the Commissioner’s written submissions. After several largely unsuccessful attempts to confine Ms Balbir Singh’s further oral submissions to responses to the Commissioner’s written submissions, I indicated to Ms Balbir Singh that I would stand the matter down for a short period to enable her to consider her best points, and would then give her a further opportunity of only 10 minutes to make any further oral submissions. Ms Balbir Singh successfully confined her further oral submissions to the 10 minute limit that I afforded her.
(e)Ms Balbir Singh’s application contained an unparticularised assertion of fraud. I first raised this with Ms Balbir Singh at the directions hearing on 24 September 2024. I explained to her that a finding of fraud cannot be made lightly, and there would need to be a clear articulation and evidence of what act or action is said to be fraudulent, who it was conducted by, why it was fraudulent and how it impacted the Commissioner’s decision. Despite Ms Balbir Singh being afforded an opportunity to file an amended application, she did not provide any more detailed assertion of fraud. When it became apparent at the hearing that Ms Balbir Singh continued to press a vague and unparticularised assertion of fraud, I again explained the need to clearly articulate and provide evidence to support any such assertion and gave Ms Balbir Singh an opportunity after the hearing to provide further evidence and written submissions in relation to her assertion of fraud. I indicated to the parties that I would consider whether a further hearing would be required upon reviewing the documents. The main reason a further hearing would be necessary would be if there was evidence that the Commissioner sought to test in cross-examination. However, Counsel for the Commissioner indicated at the hearing that the Commissioner would be unlikely to cross-examine the applicant and, after having an opportunity to review Ms Balbir Singh’s submissions, the Commissioner did not seek any opportunity to cross-examine. Having reviewed the submissions and annexures that Ms Balbir Singh provided in relation to fraud, I do not consider that a further hearing in relation to fraud is necessary. For the reasons explained later in this judgment, Ms Balbir Singh has not clearly articulated an assertion that the Commissioner’s decision is induced or affected by fraud and, even if I were to accept all her evidence (which it is not appropriate to determine), it would not establish that the Commissioner’s decision is induced or affected by fraud.
(f)Ms Balbir Singh indicated in correspondence to the Court that she feels she was not afforded an opportunity to discuss certain matters, including a past incident in which she was the victim of a crime, the harm, violations and discriminations she has experienced in Australia and the merits of her case. Ms Balbir Singh already addressed these matters in her submissions and, in any event, they are not matters that are directly relevant to the issues for the Court’s determination in an application for judicial review of the decision of the Commissioner not to investigate Ms Balbir Singh’s privacy complaint. I do not consider that a further hearing is required to discuss these matters.
While I acknowledge that Ms Balbir Singh may feel that she would like to make further submissions to the Court, I am not satisfied that such a course is required as a matter of procedural fairness or that such a course would be consistent with the overarching purpose of the Court’s civil practice and procedure provisions as set out in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). Procedural fairness requires that parties to litigation be given a meaningful opportunity to be heard and present their case in relation to the issues to be determined by the Court: see, for example, HT v The Queen (2019) 269 CLR 403; [2019] HCA 40 at [17] (Kiefel CJ, Bell and Keane JJ); Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29 at [82]-[83]. Ms Balbir Singh has had that opportunity in this case. In the light of the opportunities that Ms Balbir Singh has already had to present her case, I do not consider that the just resolution of the dispute according to law requires that a further hearing be afforded and it would not be conducive to the quick, inexpensive and efficient resolution of this proceeding to hold a further hearing.
RELEVANT LEGISLATION
Part V of the Privacy Act relates to investigations by the Commissioner.
Pursuant to s 36(1) of the Privacy Act, an individual may complain to the Commissioner about ‘an act or practice that may be an interference with the privacy of the individual’. Subject to certain exceptions, the Commissioner is required by s 40 of the Privacy Act to investigate an act or practice if the act or practice may be an interference with the privacy of the individual and a complaint about the act or practice has been made under s 36. Section 40 of the Privacy Act has effect subject to s 41: see s 40(3) of the Privacy Act. Section 41(1) provides:
The Commissioner may decide not to investigate, or not to investigate further, an act or practice about which a complaint has been made under section 36 if the Commissioner is satisfied that:
(a) the act or practice is not an interference with the privacy of an individual; or
(c)the complaint was made more than 12 months after the complainant became aware of the act or practice; or
(d)the complaint is frivolous, vexatious, misconceived, lacking in substance or not made in good faith; or
(da)an investigation, or further investigation, of the act or practice is not warranted having regard to all the circumstances; or
(db)the complainant has not responded, within the period specified by the Commissioner, to a request for information in relation to the complaint; or
(dc)the act or practice is being dealt, or has been dealt with, with by a recognised external dispute resolution scheme; or
(dd)the act or practice would be more effectively or appropriately dealt with by a recognised external dispute resolution scheme; or
(e)the act or practice is the subject of an application under another Commonwealth law, or a State or Territory law, and the subject‑matter of the complaint has been, or is being, dealt with adequately under that law; or
(f)another Commonwealth law, or a State or Territory law, provides a more appropriate remedy for the act or practice that is the subject of the complaint.
The complaints scheme under the Privacy Act and the role of the Commissioner was considered by Wheelahan J in Madzikanda v Australian Information Commissioner [2023] FCA 1445 at [50] (Madzikanda), where his Honour said:
The Act provides for a means of complaining about an alleged interference with privacy. The role of the Commissioner is as an administrative gatekeeper of complaints about interferences with privacy. The Commissioner has powers of investigation, but a discretion on a number of grounds not to investigate, or not to investigate further.
As Perry J explained in Simjanovska v Department of Human Services [2019] FCA 499 (Simjanovska) at [122], ‘the apparent purpose of s 41(1) is to empower the Commissioner to decide not to investigate a complaint or to terminate a complaint at any stage when she or he reaches the requisite state of satisfaction, thereby ensuring that public funds and resources are directed towards resolving potentially meritorious complaints’.
In the context of the application presently before the Court, it is worthwhile to note that the Commissioner’s investigative powers were relevantly limited to investigations about an act or practice that may be an interference of the privacy of an individual, in this case, Ms Balbir Singh. The complaint was made against Avant. It was not open to the Commissioner in this matter to investigate Ms Balbir Singh’s complaint against Avant’s handling of her claims more broadly, or to address Ms Balbir Singhs concerns about the conduct of other agencies. I make this point because much of the information that Ms Balbir Singh provided to the Commissioner and to the Court did not directly relate to Avant’s handling of Ms Balbir Singh’s personal information, but rather related to Ms Balbir Singh’s dissatisfaction about Avant’s handling of her claim and her dissatisfaction with the conduct of various other (sometimes unnamed) agencies. The Commissioner did not have the power to investigate these other matters, and it is not appropriate for the Court to address those other matters in this judgment.
THE ROLE OF THE COURT
In Simjanovska, Perry J noted the limited jurisdiction of a court on judicial review and explained at [108] that:
The discretion in s 41(1) of the Privacy Act is vested only in the Commissioner or a delegate and not the Court. The jurisdiction of the Federal Court is confined to deciding whether the Assistant Commissioner’s decision was made lawfully under the Privacy Act, that is, whether the Commissioner’s decision is invalid by reason of a jurisdictional error or tainted by a reviewable error specified in s 5(1) of the ADJR Act…
The Court cannot decide to investigate Ms Balbir Singh’s complaint in relation to her privacy (or any other of her complaints), nor can the Court find that the Commissioner should have investigated her complaint. Rather, the role of the Court is limited to considering the lawfulness of the Commissioner’s decision. In this case, that requires the Court to consider whether, in making the decision under s 41(1)(d) of the Privacy Act not to investigate Ms Balbir Singh’s privacy complaint, the Commissioner (or the Commissioner’s delegate) made one of the asserted errors under s 5 of the ADJR Act.
CONSIDERATION OF THE GROUNDS IN THE APPLICATION
Did the Commissioner breach the rules of natural justice?
There are two limbs to the rules of natural justice. The first concerns the right to a fair hearing and the second relates to the need for a decision to be free from bias. Mr Balbir Singh alleges that the Commissioner breached both limbs of the rules of natural justice. I deal with these in turn.
The right to a fair hearing
Having regard to Ms Balbir Singh’s amended application, written submissions and oral submissions, it appears that the reasons Ms Balbir Singh claims that she was denied procedural fairness in relation to the hearing of the matter include:
(a)she has been denied natural justice as a result of the decision;
(b)a denial of procedural fairness has prevented a fair outcome for her in this case;
(c)she was not given adequate flexibility to provide all necessary information;
(d)she was never asked clear questions by the Commissioner; and
(e)she has a legitimate expectation that the Commissioner would want to investigate Avant for their misconduct and misuse of Ms Balbir Singh’s personal information.
The first assertion, namely that Ms Balbir Singh has been denied natural justice as a result of the decision, cannot succeed as natural justice, or procedural fairness, is focused on the process used to make the decision, rather than whether the outcome was fair. As Wheelahan J explained in Madzikanda at [30]:
An obligation to afford procedural fairness is therefore concerned with a fair procedure, and not with a fair outcome: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [25] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). What is involved includes a general requirement to give a person who is the subject of a decision the opportunity to put information and submissions to the decision-maker in support of an outcome that supports his or her interests, including “to rebut or qualify … adverse material from other sources which is put before the decision maker”: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576 at 591–2, cited with evident approval in SZBEL at [29] and in BRF038 v Republic of Nauru [2017] HCA 44; 349 ALR 67 at [59] (Keane, Nettle and Edelman JJ). Further, the concept of fairness is grounded in practical justice, as explained by Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37] –
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
While Ms Balbir Singh may feel that a preferable outcome for her would have been for the Commissioner to investigate her privacy complaint, that, of itself, is insufficient to amount to a breach of the rules of natural justice.
The balance of the assertions by Ms Balbir Singh relate to the process adopted by the Commissioner and I have also considered more generally whether she was denied procedural fairness or natural justice.
I am satisfied that Ms Balbir Singh has had a fair opportunity to be heard in the present case.
As can be seen from the summary of the facts set out above, Ms Balbir Singh was expressly invited to comment on the delegate’s preliminary view to close the complaint without investigation pursuant to s 41(1)(c) of the Privacy Act, on the basis that the complaint was made more than 12 months after Ms Balbir Singh became aware of the act or practice the subject of the complaint or s 41(1)(d) of the Privacy Act, and the basis that the complaint was lacking in substance.
Each time Ms Balbir Singh requested additional time to provide the relevant information, the delegate agreed to her request. The delegate even considered whether there were grounds to reopen the decision when Ms Balbir Singh provided additional information after the decision was made. In these circumstances, I am satisfied that Ms Balbir Singh was afforded adequate flexibility to provide the necessary information.
Ms Balbir Singh was clearly told the types of information that she was required to provide. This was clear not only on the privacy complaint form, but also in the correspondence from the OAIC sent on 22 March 2024 and 28 March 2024. There was no obligation on the delegate to ask any more specific questions of Ms Balbir Singh. In her oral submissions, Ms Balbir Singh submitted that the Commissioner could have asked her for more information about specific events, which I will describe as events that formed part of the background subject-matter of the matters for which she sought Avant’s assistance. Ms Balbir Singh also submitted that she was just asked to provide a detailed description of what happened, which she did, and the Commissioner, or the delegate, never asked about any specific event or incident or specific behaviours of Avant. This does not establish any failure to afford Ms Balbir Singh a meaningful opportunity to be heard. The Commissioner did not need information about these types of background matters to decide whether or not to investigate Ms Balbir Singh’s privacy complaint, because it was not relevant to the alleged interference with her privacy by Avant. The specific type of information sought by the Commissioner’s delegate was the type of information that is relevant to a privacy complaint.
Some of Ms Balbir Singh’s oral submissions regarding the questions asked of her amount to a complaint that Avant should have asked her more specific information during the period she had engaged them and should have given different weight to the information she provided. These submissions do not assert any error in the Commissioner’s decision and are beyond the scope of this application.
Ms Balbir Singh’s assertion that she had a legitimate expectation that the Commissioner would want to investigate Avant for their misconduct and misuse of her personal information does not establish any breach of the natural justice hearing rule. As explained above, the Commissioner’s role was limited to investigating a privacy complaint and not any allegation of misconduct more generally. Whether the Commissioner wished to investigate or not is entirely irrelevant to the question of whether the delegate failed to afford Ms Balbir Singh a meaningful opportunity to be heard. It is clear from the terms of s 41 of the Privacy Act that the Commissioner is not required to investigate every single complaint that is made about a person’s privacy. If, after being given several opportunities to provide information, Ms Balbir Singh did not articulate her complaint or provide relevant information in a way that satisfied the Commissioner’s delegate that there was substance to the complaint, it was open to the Commissioner not to investigate.
Further, it is clear that in making the decision the delegate took into account the information provided by Ms Balbir Singh. The delegate changed her preliminary view, insofar as it related to a decision not to investigate because the complaint wasmade more than 12 months after the relevant conduct, based on the information that Ms Balbir Singh provided.
The need for a decision to be free from bias
Ms Balbir Singh has alleged that:
(a)the decision is tainted by fraud, racism and corruption;
(b)the Commissioner had a significant apprehension of bias against her, which resulted in the Commissioner not properly considering Ms Balbir Singh’s health injuries and extraordinary bad circumstances;
(c)the only matter the Commissioner considered is the desire to wrongfully persecute Ms Balbir Singh and not provide her with justice or assistance; and
(d)discretionary powers have been exercised in bad faith by the Commissioner because of the wrongful unsavoury rumours spread about Ms Balbir Singh everywhere by a corrupt agency.
An allegation of bias is a serious allegation which must be distinctly raised and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [72].
The allegations made by Ms Balbir Singh are serious. The allegation of fraud is raised as a separate ground and I address that below. The communications from the delegate to Ms Balbir Singh are in evidence before the Court. There is nothing in those communications that suggest that the delegate was racist or corrupt in any way. The communications are all courteous and polite and appear to have been intended to assist Ms Balbir Singh to provide relevant information.
Ms Balbir Singh’s communications to the Commissioner made clear that she feels that she has been subject to racism and corruption in the past. Ms Balbir Singh’s raising of these concerns does not, however, mean that the delegate should be imputed to be racist or corrupt. Ms Balbir Singh has not pointed to any specific act or communication by the Commissioner or the Commissioner’s delegate that indicates any express or implied racism or corruption on the part of the Commissioner or the Commissioner’s delegate.
The helpful and polite communications from the delegate demonstrate no desire to persecute Ms Balbir Singh or any deliberate denial of justice or assistance.
There is no evidence before the Court to suggest that the delegate had any pre-existing state of mind which rendered her unwilling to undertake a proper review of the materials or which was not open to persuasion. There is therefore no evidence before the Court to support a finding of actual bias.
The test for whether a decision is affected by apprehended bias is whether a fair-minded and well-informed lay observer might reasonably apprehend that the decision-maker might not have brought an impartial mind to their task: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]; CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 at [17]; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65; [2023] HCA 15 at [37].
There is nothing in the circumstances of the present case that might cause a well-informed lay observer to reasonably apprehend that the delegate might not have brought an impartial mind to the decision. A bare assertion of fraud, racism or corruption, where there is no evidence of any particular act on the part of the Commissioner or the Commissioner’s delegate that might suggest that the Commissioner or the Commissioner’s delegate has acted in a fraudulent, racist or corrupt way is not sufficient to give rise to a reasonable apprehension of bias. A fair-minded and well-informed lay observer would comprehend that any investigation by the Commissioner could only relate to a privacy complaint, and not Avant’s conduct more generally or the underlying matters that caused Ms Balbir Singh to approach Avant in the first place. A fair-minded and well-informed lay person would also comprehend the nature of the decision that was in fact made. There is nothing in the manner in which the delegate communicated with Ms Balbir Singh, the nature of the decision, or the matters taken into account in reaching the decision that gives rise to reasonable apprehension of bias.
There is also an assertion that the Commissioner acted in bad faith because of unsavoury rumours that had been spread about Ms Balbir Singh. There is no evidence before the Court to suggest that the delegate or any other person acting on behalf the Commissioner was even aware of any rumours about Ms Balbir Singh or had any knowledge of her outside of the information that she herself provided. To the extent that it might form part of Ms Balbir Singh’s assertion of bias, it does not amount to bias.
Did the Commissioner take into account irrelevant considerations or fail to take into account relevant considerations?
Ms Balbir Singh alleged that:
(a)the Commissioner did not consider all information given to the OAIC and did not consider Ms Balbir Singh’s serious health injuries or extraordinary bad circumstances;
(b)relevant considerations about the specific case were disregarded, including that she has been through extraordinarily harmful circumstances and these circumstances, as well as the merits of this case, have not been considered properly by the delegate;
(c)the only consideration taken into account was the desire to wrongfully persecute her and not provide her assistance; and
(d)the Commissioner took into account irrelevant considerations such as the fact that she only came to the Commissioner in 2024, which could be irrelevant considering the serious issues she has faced.
As Wheelahan J explained in Madzikanda at [65]:
A claim under s 5(1)(e) and (2)(a) and (b) of the ADJR Act that the making of a decision under an enactment was an improper exercise of power on the ground that a relevant consideration was not taken into account involves establishing that the decision-maker was bound by the statute to take the matter into account. This can arise as a result of the express terms of the statute, or by necessary implication. Conversely, a challenge on the ground that an irrelevant consideration was taken into account involves establishing that the decision-maker was precluded from taking the matter into account. Judicial review on these grounds is not an invitation to a court to take account of different considerations, or to place more weight on or no weight on considerations that were taken into account. The principles were discussed by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39-40 and by Gleeson CJ in Neat Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; 216 CLR 277 at [20].
Ms Balbir Singh provided information to the Commissioner that she considered was relevant to the delegate’s decision.
Ms Balbir Singh alleges that the delegate failed to consider her serious health injuries and extraordinarily bad circumstances, the harmful circumstances she has faced and the merits of the case. Ms Balbir Singh has not indicated with any degree of specificity the information that she believes the delegate was required to, but did not, take into account. Having reviewed the delegate’s decision, I am satisfied that the delegate had regard to the information about Ms Balbir Singh’s health conditions, as part of the ‘personal circumstances which [Ms Balbir Singh claimed] have prevented [her] from submitting [her] claims in a timely manner’, in finding that it was not suitable to decline to investigate the complaint on the basis that she had been aware of the acts or practices subject to the complaint for more than 12 months. Further, insofar as the information referred to Ms Balbir Singh’s bad circumstances or harm she had faced, the delegate expressly acknowledged Ms Balbir Singh’s claim that Avant had caused her harm by allowing large amounts of funds to be embezzled by perpetrators of harm, and that they allowed fraud and corruption to occur in relation to her workplace injury matter and acknowledged that these were very serious claims. It cannot be said that the Commissioner failed to consider these matters.
There was a substantial volume of material provided to the Court that was not before the Commissioner at the time of the decision. The Commissioner was not required to take into account information that was not provided prior to the decision being made.
Insofar as Ms Balbir Singh’s assertion that the Commissioner did not have regard to the merits of the case is properly understood as disagreeing with the outcome of the Commissioner’s decision, it cannot establish any of the grounds in s 5 of the ADJR Act. This Court cannot review the merits of the delegate’s decision. Otherwise, it is apparent that the delegate considered the information provided by Ms Balbir Singh and based on that information was not satisfied that there was any substance to her privacy complaint.
The information taken into account by the delegate in reaching the decision was information provided by Ms Balbir Singh and it was information that the Commissioner was entitled to take into account. There is no evidence to support Ms Balbir Singh’s assertion that the delegate had or took into account any desire to persecute her or any desire not to assist her. Having regard to the material before the delegate, the delegate’s finding that Ms Balbir Singh’s privacy complaint lacked substance was open to it.
Ms Balbir Singh’s assertion that it was irrelevant to take into account that she only approached the Commissioner in 2024 does not establish error in the Commissioner’s approach. Section 41(1)(c) of the Privacy Act clearly directs consideration to when the privacy complaint was made, as well as when the person making the complaint became aware of the act or practice the subject of the complaint. It was open to the delegate, having regard to the terms of s 41(1)(c) of the Privacy Act, to consider the timing of Ms Balbir Singh’s privacy complaint. In any event, as discussed above, having regard to the information that Ms Balbir Singh provided, the delegate did not rely on s 41(1)(c) in deciding not to investigate the privacy complaint, and instead relied only on s 41(1)(d).
Did the Commissioner exercise power in accordance with a rule or policy without having regard to the merits of the case?
Ms Balbir Singh alleged that there was an element of inflexibility and an error of law by expecting her to comply with rigid timeframes that could not possibly be met.
This does not amount to any inflexible application of a rule or policy. First, as discussed above, each time Ms Balbir Singh requested an extension of time, it was granted to her. Second, Ms Balbir Singh has not identified any rule or policy that was applied by the Commissioner. I accept the Commissioner’s submission that even if there was a policy (and in the absence of evidence I make no finding on this) of seeking comment and further information from complainants and giving them an opportunity to comment on preliminary views before determining complaints, that would simply be a process of promoting consistency and rationality in decision-making.
Ms Balbir Singh has not established that the Commissioner exercised power in accordance with a rule or policy without having regard to the merits of the case.
Was the Commissioner’s decision induced or affected by fraud?
The unparticularised assertion of fraud in Ms Balbir Singh’s amended application is that the Commissioner did not consider all information provided to it, that the decision was induced or affected by fraud, many decisions by many agencies regarding Ms Balbir Singh have been induced or affected by fraud and most healthcare providers do not want to assist her with her health injuries or compensation claims because they have been affected by fraud involving a very corrupt agency.
Ms Balbir Singh believes that Avant has allowed large amounts of funds to be embezzled by perpetrators of harm against her due to mismanagement, fraud, racism and corruption and that Avant allowed fraud and corruption to occur with regards to her serious workplace matter in New Zealand.
Ms Balbir Singh also asserted in her oral submissions that the allegedly wrongful manner in which Avant handled her information appears to be to some degree influenced by fraud.
In her post hearing submissions, Ms Balbir Singh again addressed her claims of fraud. Due to the sensitive nature of the matters discussed in those submissions, I do not summarise them in this judgment. It is sufficient to note that the allegation of fraud arises in the following way:
(a)Ms Balbir Singh claims to be the victim of a past crime and of past adverse incidents in her previous workplaces and believes she should be entitled to compensation as a result of this and that various agencies in Australia and New Zealand should have assisted her;
(b)Ms Balbir Singh engaged Avant to assist her; and
(c)Ms Balbir Singh believes that Avant and various government agencies have engaged in fraudulent and corrupt conduct.
Critically, Ms Balbir Singh does not allege that the Commissioner’s decision itself was the result of fraud or that it was induced or affected by fraud. Rather, the allegation of fraud appears to be the subject matter of the issues regarding which she sought Avant’s assistance and possibly the subject matter of her complaint against Avant. An assertion of fraud as the direct or indirect subject matter of the privacy complaint is insufficient to establish that the Commissioner’s decision was induced or affected by fraud.
The Commissioner, in her post hearing submissions, helpfully explained to the applicant the type of information she would need to clearly provide to raise a claim of fraud. The Commissioner said in her post-hearing submissions at [2]:
Any finding of fraud would require the Court to specify (and therefore the applicant needs to at least identify):
(a)the fraudulent conduct (for example, information that had been provided to the respondent’s delegate that the applicant purportedly provided but was, not in fact, provided by the applicant);
(b)how it was fraudulent (for example, because no consent had been given for the third-party to do what they did, because the third-party did it for an improper purpose, because it was done when it was known to be incorrect/untruthful); and
(c)how it was acted upon (for example, what the ‘fraud’ led the respondent’s delegate to do).
Despite Ms Balbir Singh having an opportunity to file reply submissions, she filed no further submissions and did not provide any more specific information.
In Madzikanda, Wheelahan J explained at [70]:
An administrative decision may be affected by jurisdictional error where the decision-maker exercises powers fraudulently, and where a decision-maker is defrauded in the exercise of statutory powers: Minister For Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550 at [15] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ). A ground of this type requires a focus upon the manner in which the fraud adversely affected the exercise of the relevant statutory powers. Section 5(1)(g) of the ADJR Act provides for a statutory ground of review on the ground that “the decision was induced or affected by fraud”. Fraud, for the purposes of s 5(1)(g), involves a deliberate misrepresentation: Burragubba v Queensland [2017] FCAFC 133; 254 FCR 175 at [27], [29] (Dowsett, McKerracher and Robertson JJ). In the case of third party fraud on a decision-maker, what is required to make out the ground is that there be actual inducement or affectation by fraud: Wati v Minister for Immigration and Ethnic Affairs [1996] FCA 1043; 71 FCR 103 at 111-112 (Lindgren J), cited in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189 at [25]-[26], concerning the cognate provision in s 476(1)(f) of the Migration Act 1958 (Cth), as then in force.
The High Court explained in Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 (2020) 271 CLR 550; [2020] HCA 46 the need for the focus of a ground of fraud in an administrative law context to focus on the manner in which the alleged fraud affected the decision-making process, having regard to the relevant statutory scheme. The High Court said at [15] (footnotes omitted):
The insistence by this Court in SZFDE [(2007) 232 CLR 189; [2007] HCA 35] that a ground of review for fraud requires a focus upon the manner in which the fraud adversely affected the operation of the particular system of review, and therefore the statutory functions and powers of the Tribunal, was appropriate because grounds of judicial review arise by implication from the statute which provides the jurisdiction to make the decision . Just as it is usually implied that a decision will be invalid if a decision-maker exercises their powers fraudulently, so too it will usually be implied that a decision will be invalid if a decision-maker is defrauded in the exercise of statutory powers. The implication requires that some aspect of the operation of the legislative scheme be affected by actual fraud or dishonesty, not merely negligence. As this Court said in SZFDE, “there are sound reasons of policy” why an administrative decision is not vitiated merely by bad or negligent advice or some other mishap that leads to detriment to an applicant.
Having regard to the manner in which Ms Balbir Singh has articulated her allegation of fraud, she has not identified anything that could possibly suggest that the Commissioner’s decision has been induced or affected by fraud.
There is no clear allegation that the Commissioner or her delegate exercised their powers fraudulently and no evidence before the Court that would give rise to such an assertion. To the extent that Ms Balbir Singh’s assertion of bad faith by the Commissioner in the exercise of discretionary powers (considered in the context of the bias ground above) might overlap with her assertion of fraud, there is no evidence before the Court to suggest that the Commissioner, or the Commissioner’s delegate, had any awareness of any other matters regarding Ms Balbir Singh, other than the information she provided herself, or that the Commissioner or the delegate acted in any dishonest way or had any motivation that was not consistent with the duties under the Privacy Act.
The allegations of fraud by third parties, which appear to form part of the subject matter of Ms Balbir Singh’s request to Avant for assistance or which otherwise form part of the injustice which Ms Balbir Singh believes she has experienced, do not assert or establish any actual inducement or affectation by fraud in relation to the delegate’s decision. Ms Balbir Singh has not identified any way in which the alleged fraud has induced or affected the exercise of the Commissioner’s power to not investigate her privacy complaint.
It is not appropriate in this judgment to make any comment or finding about the assertions of fraud against Avant or any other named or unnamed agency. I would simply note that even if all of the factual assertions made by Ms Balbir Singh were accepted, in the absence of any clear allegation of fraud that has induced or affected the Commissioner’s decision, her claim under s 5(1)(g) of the ADJR Act cannot succeed.
Bad faith
As can be seen from the above discussion, Ms Balbir Singh asserted that the Commissioner acted in bad faith because of unsavoury rumours that had been spread about her. Although ‘the exercise of a discretionary power in bad faith’ is referred to in s 5(2)(d) of the ADJR Act as a type of conduct that can amount to an improper exercise of power for the purposes of s 5(1)(e), neither party treated it as a separate ground and I have considered the allegations in the context of assessing the bias and fraud grounds. I note for completeness that even if I were to treat the bad faith ground as a separate ground it would not be established.
CONCLUSION
Ms Balbir Singh has not established any of the grounds s 5 of the ADJR Act. It follows that her application to this Court must be dismissed.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 28 February 2025
0
21
3