Balbir Singh v Australian Information Commissioner

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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…

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Details
Case
[2025] FedCFamC2G 280
Decision Date

CaseChat Overview and Summary

In the case of Balbir Singh v Australian Information Commissioner, Balbir Singh sought judicial review of a decision by the Australian Information Commissioner (OAIC) not to investigate her privacy complaint against Avant. The application was dismissed, as Balbir Singh did not establish that the Commissioner's decision was affected by any of the alleged errors. Balbir Singh's privacy complaint alleged that various agencies, including the Australian Police, New Zealand Police, and Avant, had conspired to cause her harm and damage her reputation. The OAIC decided not to investigate her complaint, finding it lacking in substance. Balbir Singh alleged that the OAIC breached the rules of natural justice, exercised its discretion improperly, and failed to consider relevant considerations. The court considered these claims under the Administrative Decisions (Judicial Review) Act 1975 (Cth). Balbir Singh argued that she was denied procedural fairness, that the OAIC did not give her adequate flexibility to provide necessary information, and that she was not asked clear questions by the Commissioner. The court found that procedural fairness concerns the process used to make the decision, not the fairness of the outcome. Balbir Singh's claims that she was denied natural justice as a result of the decision could not succeed, as the concept of fairness is grounded in practical justice, aimed at avoiding practical injustice. The court also found that Balbir Singh had not demonstrated any of the asserted errors under s 5 of the ADJR Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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 BACKGROUNDMs 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 COURTThe 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.

Ratio Decidendi

Legal Principle Established

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 APPLICATIONDid 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.