Grass v Slattery

[2018] FCA 1719

FEDERAL COURT OF AUSTRALIA

Grass v Slattery [2018] FCA 1719

File number:

NSD 1301 of 2016

Judge:

BROMWICH J

Date of judgment:

13 November 2018

Catchwords:

TORTS – misfeasance in public office – elements of the tort – whether actions of administrative officials constituted exercise of public power – whether administrative decision‑makers actions’ and officials’ actions pursued with malice – whether administrative decision-makers actions’ and officials’ actions pursued with knowledge of, or reckless indifference to, whether the actions were in excess of power and knowledge of, or reckless indifference to, the possibility that the actions would cause or be likely to cause injury – whether Commonwealth of Australia vicariously liable – whether applicants suffered damage – held: tort of misfeasance in public office not established – vicarious liability not established – application dismissed with costs

Legislation:

Archives Act 1983 (Cth) s 24(1)

Australian Citizenship Act 2007 (Cth) ss 24, 25, 26, 27, 37, 47

Freedom of Information Act 1982 (Cth) ss 48, 50

Migration Act 1958 (Cth)

Privacy Act 1988 (Cth)

International Covenant on Civil and Political Rights. Opened for signature 19 December 1996. 999 UNTS 171. 6 ILM 386 art 25. (entered into force 23 March 1976)

Cases cited:

Calveley v Chief Constable of Merseyside [1989] AC 1228

Canon v Tahche [2002] VSCA 84; 5 VR 317

Chapel RoadPty Ltd v Australian Securities Investments Commission (No 10) [2014] NSWSC 346; 285 FLR 14

Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53; 2 NZLR 679

Deputy Commissioner of Taxation v Frangieh (No 3) [2017] NSWSC 252

Emanuele v Hedley (1998) 179 FCR 290

Farah Custodians Pty Limited v Commissioner of Taxation [2018] FCA 1185

Grass v Minister for Immigration [2013] FMCA 74

Grass v Minister for Immigration and Border Protection [2015] FCAFC 44; 231 FCR 128

Grimwade v Victoria (1997) 90 A Crim R 526

Leerdamv Noori [2009] NSWCA 90; 227 FLR 210

Leinengav Logan City Council [2006] QSC 294

MJL v the State of Western Australia [2015] WASC 348

Moder v Commonwealth of Australia [2012] QCA 92; 261 FLR 396

Northern Territory v Mengel (1995) 185 CLR 307

Nyoni v Shire of Kellerberrin [2017] FCAFC 59; 248 FCR 311

Obeid v Lockley [2018] NSWCA 71; 355 ALR 615

Pintarich v Deputy Commissioner of Taxation [2018] FCAFC 79

Sanders v Snell [1998] HCA 64; 196 CLR 329

Sanders v Snell (No 2) [2003] FCAFC 150; 130 FCR 149

Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422

Semunigus v Minister for Immigration and Multicultural Affairs [2000] FCA 240; 96 FCR 533

Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1

Watkins v Home Secretary [2006] 2 AC 395

Heuston RFV and Buckley RA, Salmond & Heuston on the Law of Torts (21^st ed, Sweet & Maxwell Ltd, 1996)

Dates of hearing:

5, 6, 7, 8 February 2018, 6 June 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

277

Counsel for the Applicants:

The Applicants appeared in person

Counsel for the Respondents:

Mr Scott Nixon SC with Ms V Thomas on 5, 6, 7, 8 February 2018

Mr Scott Nixon SC on 6 June 2018

Solicitor for the Respondents:

Ashurst Australia

ORDERS

NSD 1301 of 2016

BETWEEN:

CORAZON ELAURIA GRASS

First Applicant

JOHN GRASS

Second Applicant

AND:

MEGAN SLATTERY

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

ADRIAN BURN (and others named in the Schedule)

Third Respondent

JUDGE:	BROMWICH J
DATE OF ORDER:	13 NOVEMBER 2018

THE COURT ORDERS THAT:

1.The amended originating application and the amended statement of claim be dismissed.

2.The applicants pay the respondents’ costs of and incidental to this proceeding as assessed or agreed.

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

REASONS FOR JUDGMENT

BROMWICH J:

INTRODUCTION	[1]
OVERVIEW	[10]
The respondents	[10]
Applicable Legislation	[11]
Key events and allegations	[16]
FACTS AND EVIDENCE	[25]
The conflicting information available to the Department prior to 2009	[29]
Issues arising in relation to FOI applications to amend personal records	[40]
Practices and procedures relevant to citizenship applications in 2009	[45]
The approval of Mrs Grass’ application comes to Ms Slattery’s attention	[51]
Ms Slattery’s “hold” on Mrs Grass’ citizenship ceremony in the ICSE system – May 2009	[55]
The investigation regarding Mrs Grass in 2009	[65]
The Department’s communications with Mr Grass – December 2009	[70]
Legal advice within FOI Section – January 2010	[76]
Notice of consideration of cancellation – February 2010	[78]
Request for assistance made to the Australian Embassy in Manila – March 2010	[82]
Changing Mrs Grass’ date of birth in the ICSE system – April 2010	[83]
Updated notice of consideration of cancellation – 11 May 2010	[89]
Interview with Mr and Mrs Grass – 4 June 2010	[90]
Citizenship cancellation decision – 5 July 2010	[92]
Commonwealth Ombudsman’s Investigation	[96]
The applicants’ challenge in the Federal Magistrates Court to the citizenship cancellation decision	[99]
8 April 2013 cancellation decision	[107]
Cross-examination of Ms Slattery	[115]
Cross-examination of Ms Penhaligon	[127]
THE APPLICANTS’ CASE	[133]
The evidence relied upon by the applicants	[139]
The applicants’ evidence of loss or damage	[140]
Events in the proceeding leading to the adducing of evidence of loss or damage	[140]
Evidence adduced on loss or damage	[146]
THE TORT OF MISFEASANCE IN PUBLIC OFFICE	[152]
A public officer	[158]
The exercise or purported exercise of a public power or duty	[159]
The tortfeasor must have acted with the requisite intent	[166]
Targeted malice	[167]
Acting beyond power	[171]
Damage	[174]
CONSIDERATION	[176]
The claim against Ms Slattery	[184]
(1) The “hold conferral” entry in the ICSE system on 29 May 2009	[186]
(2) The “reversal” of Mrs Grass’ approval in the ICSE system on 29 May 2009	[197]
(3) The direction to staff to “deceive” the applicants	[207]
(4) The change to Mrs Grass’ principal/preferred date of birth in the ICSE system	[210]
(5) The cancellation of the approval of Mrs Grass’ application for citizenship	[219]
Conclusion in relation to Ms Slattery	[225]
The claim against Ms Parker	[226]
The claim against Mr Callow	[237]
The claim against Ms Penhaligon	[247]
The claim against Mr Burn	[256]
The claim against Mr Vikneson	[262]
The claim against Mr Dwyer	[267]
The claim against the Commonwealth	[272]
CONCLUSION	[274]

INTRODUCTION

1. The applicants in this proceeding seek damages for misfeasance in public office that is alleged to have been perpetrated by seven Commonwealth public servants who were employed at the relevant times by the Department of Immigration and Border Protection (now known as the Department of Home Affairs).  Related breaches of various Commonwealth statutes are also alleged, but do not appear to represent any separate cause of action.  The Commonwealth is joined as the second respondent on the basis that it is alleged to be vicariously liable.  Vicarious liability is not disputed by the Commonwealth if misfeasance by the individual public servant respondents is established.

2. The elements of the tort of misfeasance in public office have been crafted carefully to ensure that they do not encompass the negligent or unintentional acts or omissions of a public officer: Nyoni v Shire of Kellerberrin [2017] FCAFC 59; 248 FCR 311. As North and Rares JJ stated in Nyoni (with agreement by Dowsett J in relation to the principles) at [97]:

   … The tort requires, first, a misuse of an office or power, secondly, the intentional element that the officer did so either with the intention of harming a person or class of persons or knowing that he, she or it was acting in excess of his, her or its power, and thirdly, that the plaintiff (or applicant) suffered special damage or, to use Lord Bingham’s more modern characterisation, “material damage” such as financial loss, physical or mental injury, including recognised psychiatric injury (but not merely distress, injured feelings, indignation or annoyance): see Watkins at [7], [27] …

   This case falls to be determined by the application of the above principles, discussed further below.

3. The applicants are Mrs Corazon Elauria Grass and her husband, Mr John Grass.  They represented themselves at the trial, with Mr Grass taking the active role and Mrs Grass adopting, without qualification, what her husband did during the hearing in her constant presence. 

4. Broadly speaking, the dispute concerns the Department’s response to an application made by Mrs Grass in 2009 to become an Australian citizen.  The applicants have a long history of dealings with the Department, which has been animated by a controversy over Mrs Grass’ true date of birth.  Put in neutral terms, there is information available to the Department which has led some officers to the view that Mrs Grass was born in 1954.  For her part, Mrs Grass maintains that she was born in 1966, and nominated this year of birth in her application for citizenship. 

5. Although Mrs Grass’ application for citizenship was initially approved, it later came to the attention of the first respondent, Mrs Megan Slattery, in her capacity as a Manager in the Department, who took steps to delay the allocation of Mrs Grass to a local council citizenship ceremony (and thus the conferral of citizenship) while the issue of her date of birth was investigated.  Ultimately, Mrs Grass’ approval for citizenship was cancelled by two different delegates of the Minister for Immigration and Border Protection in 2010 and 2013 (the first decision having been set aside by the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia)).  In both instances, the relevant officer was satisfied that Mrs Grass had provided false or misleading information about her date of birth.  Both officers considered that Mrs Grass had in fact been born in 1954, which was the date specified on Mrs Grass’ passport when she first entered the country. 

6. In various ways, the applicants say that it was unlawful for the respondents to have acted upon their doubts about the correctness of Mrs Grass’ asserted date of birth.  They attach great importance to the fact that, in 2008, a Freedom of Information (FOI) officer acceded to a request for Mrs Grass’ departmental records to be amended and advised her that the “Department will now refer to your date of birth as 13/11/1966”.  In this regard, the applicants’ case does not go much further than suggesting that it was unlawful in a general sense for some of the respondents to have reached a conclusion that was inconsistent with that FOI decision.  The real question, however, is whether the tort of misfeasance in public office is made out in accordance with the elements set out above.

7. As will be discussed in greater detail below, the applicants’ case also concerns a practice that continues to be used in the Department, whereby an applicant who has been approved for citizenship might have an administrative or informal “hold” placed on them being referred to a local council citizenship ceremony pending further enquiries into their case. Significantly, this practice does not involve any express or formal invocation of the power under s 26(3) of the Australian Citizenship Act 2007 (Cth) (Citizenship Act) to suspend an applicant’s eligibility to take the pledge of commitment and become a citizen. 

8. It is not in dispute that this practice was used in Mrs Grass’ case, without telling her, to delay her from making the pledge while her case was investigated.  This led to Mrs Grass waiting over a year for a citizenship ceremony that did not eventuate.  The Department’s conduct in this regard has been criticised at several points, including by this Court in a prior case brought by the applicants, which has doubtless fuelled their perceptions that Mrs Grass was targeted maliciously.  However, there is a need to distinguish between conduct that might fall short of best practice and conduct that is tortious.  It also cannot be said, as any abstract conclusion, that such a practice is inherently and in all cases improper even in that more limited sense.  It is fact- and context-specific.

9. For the reasons that follow, no conduct constituting the necessary elements of misfeasance in public office on the part of any of the seven individual respondents has been established.  It follows that no conduct giving rise to vicarious liabilty on the part of the Commonwealth has been established.  Further, even if this is the incorrect conclusion to reach, the applicants did not prove any loss or damage, such that the claim of misfeasance in public office must fail on that independent basis as well.

   OVERVIEW

   The respondents

10. The natural person respondents and their roles in the Department at the material times were as follows:

    (1)Ms Megan Slattery, the first respondent, was the Manager of the Parramatta office of the Citizenship Section of the Department.

    (2)Mr Adrian Burn, the third respondent, was the Director of the Citizenship Policy Section of the Department.

    (3)Mr Jim Callow, the fourth respondent, was the Director of Citizenship in the Parramatta office of the Department.

    (4)Ms Dana Parker, the fifth respondent, was a citizenship officer in the Department’s Melbourne regional office who made the decision on 8 April 2013 to cancel Mrs Grass’ citizenship approval.

    (5)Ms Heather Penhaligon, the sixth respondent, was an Executive Level 1 officer of the Department, and manager of the Citizenship Helpdesk.

    (6)Mr Vik Vikneson, the seventh respondent, was a Senior Legal Officer in the Enforcement and Citizenship Litigation Section of the Department.

    (7)Mr Peter Dwyer, the eighth respondent, was the Director of the Enforcement and Citizenship Litigation Section of the Department.

    Applicable Legislation

11. As the tort of misfeasance in public office concerns the use or abuse of a public power or duty, regard must be had to the legislative framework of the Citizenship Act relating to the cancellation of the approval of Australian citizenship by conferral.  The key provisions are as follows.

12. Section 25 relevantly provided (and still provides) as follows:

    25  Minister may cancel approval

    (1)The Minister may, by writing, cancel an approval given to a person under section 24 if:

    (a)the person has not become an Australian citizen under section 28; and

    (b)either of the following 2 situations apply.

    Eligibility criteria not met

    (2)       The first situation applies if:

    (a)       the person is covered by subsection 21(2), (3) or (4); and

    (b)the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:

    (i)        not a permanent resident; or

    (ii)not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or

    (iii)      not of good character.

    Failure to make pledge of commitment

    (3)       The second situation applies if:

    (a)the person has failed to make a pledge of commitment within 12 months after the day on which the person received notice of the approval; and

    (b)the person’s reason for the failure is not one that is prescribed by the regulations for the purposes of this subsection.

    …

    Effect of cancellation

    (5)If the Minister cancels an approval given to a person, the approval is taken never to have been given.

    Note:A person cannot become an Australian citizen under this Subdivision unless the Minister approves the person becoming an Australian citizen. This subsection has the effect that the person will need to make another application if the person wants to become an Australian citizen.

13. Section 26 at the relevant time provided as follows:

    26  Pledge of commitment must be made

    (1)A person must make a pledge of commitment to become an Australian citizen unless the person:

    (a)       is aged under 16 at the time the person made the application to     become an Australian citizen; or

    (b)has a permanent or enduring physical or mental incapacity, at the time the person made the application to become an Australian citizen that means the person is not capable of understanding the nature of the application at that time; or

    (c)       is covered by subsection 21(6), (7) or (8).

    Note:     See section 27 for how the pledge is to be made.

    (2)A person must not make a pledge of commitment before the Minister approves the person’s application to become an Australian citizen. A pledge of commitment made by the person before that time is of no effect.

    Delayed making of pledge

    (3)If the person is required to make a pledge of commitment and has not done so, the Minister may determine, in writing, that the person cannot make the pledge until the end of a specified period if the Minister is satisfied that:

    (a)a visa held by the person may be cancelled under the Migration Act 1958 (whether or not the person has been given any notice to that effect); or

    (b)the person has been or may be charged with an offence under an Australian law.

    (4)The Minister must not specify a period that exceeds, or periods that in total exceed, 12 months.

    (5)       The Minister may, by writing, revoke a determination.

    (6)If a determination is in force in relation to a person, the person must not make a pledge of commitment before the end of the period specified in the determination. A pledge of commitment made by the person before that time is of no effect.

14. Section 27 relevantly provided (and still provides) as follows:

    27  How pledge of commitment is to be made

    Form of pledge

    (1)A pledge of commitment must be made in accordance with either of the forms set out in Schedule 1.

    Prescribed arrangements

    (2)A pledge of commitment must be made in accordance with the arrangements prescribed by the regulations.

    Note:     The regulations may provide for a pledge of commitment to be made in public.

    Persons who may receive pledge

    (3)       A pledge of commitment must be made before:

    (a)       the Minister; or

    (b)       a person authorised under subsection (4); or

    (c)a person who is included in a class of persons authorised under subsection (5).

    (4)The Minister may, by writing, authorise a person for the purposes of paragraph (3)(b).

    (5)The Minister may, by legislative instrument, authorise a class of persons for the purposes of paragraph (3)(c).

15. Section 47 relevantly provided (and still provides) as follows:

    47  Notification of decisions

    (1)If the Minister makes a decision under this Act in relation to a person, the Minister must give the person notice of the decision.

    Child

    (2)If the person is a child, the Minister satisfies the requirement in subsection (1) if the Minister gives a parent of the child notice of the decision.

    Reasons for adverse decision

    (3)If the decision is an adverse decision, the notice must include the reasons for the decision.

    Form of notice

    (4)The Minister must give the notice in the manner prescribed by the regulations (which includes electronic form).

    Procedural defect does not affect validity of decision

    (5)A failure to comply with subsection (3) or (4) does not affect the validity of the decision.

    Key events and allegations

1. The key events are largely undisputed and may be summarised as follows before turning to the evidence.

2. Mrs Grass is a citizen of the Philippines.  In 2009, she applied to become an Australian citizen.  On 21 May 2009, Mrs Grass’ application for citizenship was approved.  Under the Citizenship Act, however, she would not become an Australian citizen until she had taken a pledge of commitment in a mandated form.  As remains the case, it was the practice of local councils to facilitate the making of the pledge at public ceremonies, which are arranged based on groups of approved persons provided by the Department.  Although routine, the use of ceremonies for the making of the pledge did not reflect any legislative requirement.  Mrs Grass did not have to wait for a ceremony, although, as will be seen, it seems that she was not aware that attendance at a ceremony was not required.  Once approved, it is open to a person, as it was to Mrs Grass, to take the pledge at any time before a person prescribed by the Citizenship Act. It is only when satisfied of certain matters that the Minister can formally delay a person from making the pledge: see s 26(3) of the Citizenship Act.

3. It is not in dispute that Ms Slattery, who was a Manager in the Citizenship Section of the Department, was first alerted to Mrs Grass’ case in December 2008 during a conversation with a Counter Supervisor at Citizenship Parramatta in relation to the decision of the FOI Section to amend Mrs Grass’ date of birth in the Department records.  Following the approval of Mrs Grass’ application by a citizenship officer on 21 May 2009, Ms Slattery became concerned that Mrs Grass might have falsely stated in her application that her date of birth was 13 November 1966, which was inconsistent with other information available in the Department’s records.  Acting on that concern, Ms Slattery placed an administrative hold on Mrs Grass being allocated to a citizenship ceremony and made arrangements for her correct date of birth to be investigated.  Ms Slattery told departmental staff that Mrs Grass should not be informed of the fact of the investigation or that her ceremony was on hold.  Out of concern that Mrs Grass might nonetheless be sent to a ceremony, Ms Slattery also reversed the record of the “approval” of Mrs Grass’ citizenship application in the Department’s record-keeping system, although this record-keeping change was undone shortly thereafter. 

4. The intended effect of these actions by Ms Slattery was that Mrs Grass would be delayed from making the pledge of commitment while her case was investigated. This was evidently on the basis that the approval of Mrs Grass’ application could be cancelled before her citizenship was perfected by making the pledge, but not afterwards. At no time did Ms Slattery expressly invoke the power in s 26(3) of the Citizenship Act, which authorised her as a delegate to suspend Mrs Grass’ entitlement to take an oath or affirmation of allegiance; indeed, on her evidence, at the relevant time she was not aware that such a power existed. From what follows, nor did Ms Slattery inadvertently invoke s 26(3).

5. Ultimately, Mrs Grass waited for over a year to be allocated to a citizenship ceremony.  This did not eventuate and she did not seek to take the pledge independently before a prescribed person, as was open to her to do.  In all likelihood, this is because neither she nor Mr Grass were aware of that possibility until it was too late. 

6. On the basis of her further enquiries, Ms Slattery formed the view that Mrs Grass had provided false or misleading information to the Department about her date of birth.  On 29 April 2010, Ms Slattery amended Mrs Grass’ departmental records to reflect what she believed to be Mrs Grass’ correct date of birth, namely, 13 November 1954.  On 5 July 2010, Ms Slattery decided, as a delegate of the Minister, to cancel the approval of Mrs Grass’ application for citizenship.  Following a challenge by the applicants to that decision in the Federal Magistrates Court of Australia, orders were made by consent setting aside that decision by reason of apprehended bias.  Mrs Grass’ citizenship approval was reinstated, but this was ordered to take effect at a later date, enabling the issue of the cancellation of her citizenship approval to be reconsidered. 

7. The applicant’s key assertions are that Ms Slattery wrongfully:

   (1)delayed the conferral of Mrs Grass’ citizenship without any lawful authority and contrary to the Citizenship Act;

   (2)reversed the approval of Mrs Grass’ application for citizenship without any lawful authority and contrary to the Citizenship Act;

   (3)directed other departmental officers to lie to the applicants about the reasons for the delay in Mrs Grass’ ceremony to conceal the fact of the investigation into her citizenship approval;

   (4)altered Mrs Grass’ personal record to change her date of birth from 13 November 1966 to 13 November 1954; and

   (5)cancelled the approval of Mrs Grass’ application for citizenship in a process that demonstrated a lack of impartiality.

8. On 8 April 2013, the fifth respondent, Ms Parker, made the decision to cancel again the approval of Mrs Grass’ citizenship application. A challenge to the validity of the second cancellation decision was brought in this Court but was unsuccessful. An appeal to the Full Federal Court was dismissed. It follows that, as a matter of law, there has never been any approval of Mrs Grass’ application for citizenship by reason of the operation of s 25(5) of the Citizenship Act.

9. For the most part, the applicants’ claims appear to also be made in relation to the other respondents only to the extent that they had knowledge of, or were involved in some way with, what was done by Ms Slattery and Ms Parker.

   FACTS AND EVIDENCE

10. There was very little dispute about the facts of the key events in this matter.  To this end, the Court is really faced with a question of the characterisation of the respondents’ actions, motives and states of mind, based on the available evidence.  The applicants say that the impugned conduct was wrongful in the tortious sense and has caused them loss and damage.  The respondents deny this. 

11. Several observations should be made about the nature of the evidence in these proceedings.  The applicants’ case was essentially a documentary one, clearly based on the assumption that their claims of misfeasance could be established on the face of the departmental and inter‑agency correspondence before the Court.  As such, the applicants did not adduce any other direct evidence of any of the matters in issue.  While the respondents highlighted various difficulties with the applicants’ evidentiary approach, they did not dispute that most of the documents in question could be accepted by the Court generally, either as evidence that the relevant communications had taken place or in other limited ways.  I note that a particular problem in the applicants’ approach was to assume that the assertion of a fact in a document of some kind could establish, without more, the truth of that assertion.

12. The respondents relied upon affidavit evidence of Ms Slattery and Ms Penhaligon as to their actions and states of mind at the relevant times.  While the applicants raised nebulous objections to this evidence in its entirety, they did not meaningfully challenge the accounts given of the events in question, save that it was put repeatedly to the witnesses in cross-examination that their actions were without lawful authority and undertaken with improper motives.  Those propositions were denied to the extent that they were put as questions in a form that could be answered.  What matters is that no admission of the necessary kind was forthcoming.

13. The key events giving rise to the dispute have been set out below, together with the direct evidence of Ms Slattery and Ms Penhaligon.  The respondents’ summary of the general facts has been adopted where appropriate, noting that no express objection was made as to its accuracy.  The cross-examination of each of Ms Slattery and Ms Penhaligon has been considered separately below.

    The conflicting information available to the Department prior to 2009

14. Mrs Grass is a Philippine national.  She was born Corazon Elauria.  In 1979, she married a Mr Barreda in the Philippines.  She had two children with Mr Barreda: Elvira Barreda, who was born in 1979, and Edzon Barreda, who was born in 1982. 

15. In 1998, Mrs Grass first entered Australia on a tourist visa.  At the time, she was travelling under a Philippine passport issued in the name of Corazon Elauria Barreda that stated that her date of birth was 13 November 1954. 

16. Mrs Grass’ tourist visa expired in 1999 and she remained in Australia unlawfully until 26 January 2002, when she was detained and removed.  She met Mr Grass while in Australia.  Prior to her removal from the country, she was interviewed by an officer of the Department.  The record of this interview, signed by Mrs Grass, stated that her date of birth was 13 November 1954 and her marital status was “separated”.

17. On 27 August 2003, Mrs Grass lodged a fiancée visa application sponsored by Mr Grass at the Australian High Commission in London. In that application, she stated that her year of birth was 1966. She also stated, falsely on one view, that she had never been married. The reason for uncertainty in this regard is that, if she was in fact born in 1966, it seems unlikely that any marriage on 20 September 1979 (the date on the marriage certificate) could be lawful in the Philippines as she would then have been a 12-year-old child herself. However, there was no evidence that conclusively established that legal proposition either way. Mrs Grass was granted a fiancée visa. However, as made evident at [34] below, Mrs Grass did, unambiguously, falsely state in her fiancée visa application that Elvira and Edzon Barreda were her siblings, when they were in fact her children. There was no evidence from Mrs Grass on this or any other topic.

18. Mr and Mrs Grass were married in Australia in April 2004.  On 1 June 2004, Mrs Grass was issued with a spouse visa. 

19. In August 2004, Edzon and Elvira Barreda lodged applications at the Australian Embassy in the Philippines for extended eligibility visas as dependent children of Mrs Grass.  This was brought to the attention of an officer of the Department in Sydney.  Ultimately, the view was formed by the Department that Mrs Grass had provided false information and bogus documents in support of her fiancée and spouse visa applications.  On 9 November 2006, Mrs Grass’ spouse visa was cancelled. 

20. Mrs Grass applied to the former Migration Review Tribunal (MRT), now a part of the Administrative Appeals Tribunal (AAT), for a review of the decision to cancel her spouse visa.  In her application, she conceded that Elvira and Edzon Barreda were her children rather than her siblings.  However, she claimed that she was born in 1966.  According to the record of the MRT’s decision, Mrs Grass claimed that she had been forced to marry Mr Barreda when she was 12 years old and that her father had backdated her birth certificate to conceal the fact that she was a minor at the time of the marriage.  Being a minor when she was married to Mr Barreda would mean that Mrs Grass’ marriage to him would not have been recognised in Australia, and thus there would have been no impediment to her marriage to Mr Grass in 2004 on that basis.

21. On 28 May 2007, the MRT concluded, after reviewing the evidence, including the answers provided by Mrs Grass in the course of an examination regarding her evidence, that Mrs Grass’ correct date of birth was more likely to be 1954 than 1966 and that her visa applications had included incorrect information pertaining to her date of birth, her marital status, and her family members.  However, the MRT decided to set aside the visa cancellation decision on compassionate grounds.

22. On 7 February 2008, Mrs Grass was granted a permanent spouse visa.  That visa remains in force.

23. On or about 6 May 2008, Mrs Grass made an application under s 48 of the Freedom of Information Act 1982 (Cth) (FOI Act) to amend the Department’s records of her date of birth so that it would be recorded as 13 November 1966, rather than 13 November 1954.

24. On 30 June 2008, an officer within the FOI Section of the Department, Ms Reema Lath, decided that the “Department will now refer to your date of birth as 13/11/1966”.  As a result, entries were made in the Department’s electronic recordkeeping system, known as the Integrated Client Services Environment (ICSE) system, so that Mrs Grass’ “principal/preferred” date of birth was recorded as 13 November 1966.  For reasons that will become clear, the FOI officer’s decision was, in light of facts that later emerged, distinctly troubling, as was the rather belligerent attitude of the FOI Section of the Department to any suggestion that reconsideration of this decision might have been warranted under any circumstances.  Much of the troubles that culminated in this litigation might not have occurred had the FOI Section of the Department been more open to the possibility that an error might have been made in granting Mrs Grass’ FOI application. 

    Issues arising in relation to FOI applications to amend personal records

25. Ms Slattery’s evidence was that, from time to time after September 2008, the work she performed as a Manager in the Parramatta office of the Department meant that she needed to look into decisions that had been made by other officers to amend clients’ personal records, in response to applications by clients under the FOI Act.  Ms Slattery said that she became concerned around that time that some clients might have been requesting amended citizenship certificates for the purpose of creating a new identity in order to perpetrate what she understood to be a Centrelink fraud or other type of fraud.  That was a serious concern, and one which warranted proper attention.

26. Ms Slattery was also concerned that many amendment applications had been approved by FOI officers based on limited evidence and that the officers did not always recall the necessary departmental files relating to the applicant before approving the amendment request.  This too was a serious concern warranting proper attention.  As a result of discussions with a number of departmental officers about the issue, it was Ms Slattery’s understanding that other officers in the Department shared her concerns about the issue of changes to departmental records being procured improperly, thereby casting doubt on the integrity of such records.  Ms Slattery also gave evidence of correspondence with the Department’s Fraud Control and Investigations Section in New South Wales on this topic.

27. Ms Slattery’s evidence was that in December 2008, she was alerted to the case of Mrs Grass in a conversation with a counter supervisor at Citizenship Parramatta, Ms Mamta Sethi.  Importantly, the issues concerning Mrs Grass occurred in the context of a broader concern about accurate record-keeping by the Department.  The following day, Ms Slattery was copied into an email from the counter supervisor, which stated that an FOI officer had changed Mrs Grass’ date of birth to 1966, but that “it is clearly evident from the client of interest note that the client[’]s DOB is 1954 and not 1966.”  The email requested that this be investigated.

28. Ms Slattery’s evidence was that, at some point after receiving the email, she looked through the Department’s records relating to Mrs Grass in the ICSE system.  Mrs Grass’ entry included a “Client of Interest” note, which stated: “DIAC & MRT RECOGNISE 13.11.54 AS APPLICANT’S TRUE DATE OF BIRTH”, that is, not as 1966.  As a result of her review of the ICSE system, Ms Slattery became concerned that the FOI officer who had amended the records to show that Mrs Grass’ date of birth was in 1966, rather than in 1954, might have placed greater weight on material that Mrs Grass had presented with her FOI amendment application than the previous applications, events and decisions which suggested that her correct date of birth was 1954.  This was a legitimate concern in my view.

29. Ms Slattery said that in 2008 and 2009, her understanding was that an application for Australian citizenship should be refused if the decision-maker was not satisfied of the applicant’s identity. Among other things, this was based on an awareness of the absolute requirement in s 24(3) of the Citizenship Act that the Minister must not approve a person for citizenship unless the Minister is satisfied of the identity of the person. 

    Practices and procedures relevant to citizenship applications in 2009

30. Ms Penhaligon gave evidence that her role in the Department as the manager of the Citizenship Helpdesk was to support the citizenship network by providing policy advice on citizenship matters, performing verification of citizenship status, and processing complex cases.

31. Ms Penhaligon’s evidence was that, in 2009, when the Department approved a client’s application for Australian citizenship by conferral, the practice was to make relevant entries in the ICSE system.  Ms Penhaligon’s understanding at the time was that regular citizenship ceremonies were held by local councils.  Each council was required to advise the Department in advance of the dates when it would hold citizenship ceremonies.  Each council also informed the Department of the number of people it was able to accommodate at each ceremony.  This enabled officers in the Department to create a ceremony group for that council in the ICSE system.  Officers filled those ceremony groups progressively from a list of clients who had nominated that council as their local council and whose applications for citizenship had been approved.

32. Ms Penhaligon said that she was aware that, once a person was put in a ceremony group, it might take six months before a conferral ceremony for that person was held.  She said that there had been times when this period was longer than six months for some local councils due to the volume of applications and councils’ capacity to arrange ceremonies. 

33. Ms Penhaligon gave evidence that, in 2009, there was a practice within the Department whereby an officer who formed the view that further information should be considered before citizenship was conferred on an approved applicant could remove a person’s name from a ceremony group while that information was being considered.  The applicants did not identify any provision of the Citizenship Act that rendered this approach improper, let alone illegal.  That is not surprising.  The arrangement for citizenship ceremonies to be conducted by local councils was a creature of purely administrative arrangements, rather than legislative or regulatory arrangements.  Not every administrative action must, or even can, be specifically authorised by statute.  The administration of government would be unworkable in many areas if that were attempted.

34. Ms Penhaligon’s evidence was that it was not the practice of officers in the Department to use the power under s 26(3) of the Citizenship Act to undertake further investigation of information relevant to the question of whether a person’s approval to become an Australian citizen should be cancelled. Ms Penhaligon said that she regarded the step of removing a person’s name from a ceremony group as an administrative process, rather than the exercise of a statutory power. She said that her belief was that an officer with a delegation to make decisions under s 25 of the Citizenship Act was authorised to take such a step.

35. Ms Penhaligon gave evidence that it was not the practice in 2009, pending reconsideration of a client’s citizenship approval, for officers in the Department to disclose to a client that they had been placed in a hold group pending further investigations. Ms Penhaligon said that she understood that it was common practice for call centre operators to advise such applicants waiting for ceremonies that there was a backlog of applicants waiting for citizenship ceremonies. Such a communication might be literally correct but contextually apt to mislead if the true reason for delay was to conduct an investigation. It is probably better in such circumstances to make use of the formal power in s 26(3) of the Citizenship Act, rather than risk engaging in any practice which has the capacity to actively mislead.  However, the live issue in this proceeding is whether such conduct constitutes, either on its own or in the context of other actions, misfeasance in public office.

    The approval of Mrs Grass’ application comes to Ms Slattery’s attention

1. On 21 May 2009, Mrs Grass’ application for citizenship was approved.

2. On 29 May 2009, Ms Slattery checked Mrs Grass’ ICSE records and saw that Mrs Grass’ application had been approved.  Ms Slattery gave evidence that she was concerned that the person who had approved the application may not have reviewed all the relevant files.  It was her belief at the time that if the officer had reviewed those files, and particularly the decision of the MRT, then the officer would have had reason to doubt the truth of Mrs Grass’ assertion that her date of birth was 13 November 1966.  It would seem that this belief was well-founded.

3. Ms Slattery’s evidence was that after discovering that Mrs Grass’ application for citizenship had been approved, she had a discussion with Mr Callow, the Director of Citizenship in the Parramatta office of the Department.  He told her that she could place Ms Grass’ ceremony on hold while her true date of birth was investigated, and that she could ask the Citizenship Policy Section of the Department for advice.  Mr Callow also told her to “look into the case”, but to try to do it within the time that Mrs Grass would ordinarily be waiting for a citizenship ceremony to come up.  Absent any issue of Mrs Grass being misled, I cannot see anything wrong with what Mr Callow told Ms Slattery to do, especially as it would not involve misleading anyone, let alone Mrs Grass.

4. Ms Slattery followed this advice and discussed the case with Ms Penhaligon.  She told Ms Penhaligon that she intended to place Mrs Grass’ citizenship ceremony on hold while she carried out further investigations.  Ms Penhaligon gave evidence that she regarded Ms Slattery’s concerns about the case as being well-founded and reasonable, and that she agreed with Ms Slattery’s proposed course of action.  She also gave evidence that Ms Slattery did not say to her that she proposed to cancel the approval of Mrs Grass’ application for Australian citizenship.

   Ms Slattery’s “hold” on Mrs Grass’ citizenship ceremony in the ICSE system – May 2009

5. On 29 May 2009, following her discussions with Mr Callow and Ms Penhaligon, Ms Slattery made an entry in the ICSE system to place Mrs Grass’ citizenship ceremony on “hold”.  To that end, Ms Slattery altered the “ceremony preferences” section of Mrs Grass’ ICSE file by selecting the option “hold conferral” from a drop down list. 

6. Ms Slattery’s evidence was that she had not previously placed a “hold” on a citizenship ceremony in the ICSE system, and therefore sought assistance from another member of staff from the Ceremonies Team at the time, Mr Nguyen.  Mr Nguyen told her (being evidence of the fact of what was said to her to explain what she subsequently did, rather than evidence of the truth) that the “on hold” procedure was not entirely effective and that some clients had been taken off the “on hold” list and put through to a council citizenship ceremony without any liaison with the Ceremonies Team.

7. Ms Slattery gave evidence that on the same day that she made the “hold” entry in the ICSE system, she noticed a highlighted field on the screen that appeared to give her the option of reversing the approval of Mrs Grass’ citizenship application.  She selected that option and entered a note reading “Approval undone pending further investigation into client’s ID – DOB”, together with a further note requesting that any enquiries be forwarded to her. 

8. Ms Slattery said that she made the later entries in the ICSE system for the sole purpose of avoiding the possibility that another departmental officer might take Mrs Grass off the “on hold” list before her application had been investigated further.  In her evidence, Ms Slattery said that she regarded it as a temporary administrative step taken to reinforce the “hold conferral” entry.  She said that she did not make those further entries in the belief that she was exercising a power to formally cancel the approval of Mrs Grass’ citizenship application.  She said that at the time, she believed that she had the authority to make the further entries because she had the option of making the entry in the ICSE system.  She said that the availability of the particular functionality gave her assurance that she had personal authorisation to do so.

9. Ms Penhaligon’s evidence was that on 29 May 2009, she had a discussion with Ms Slattery concerning the “reversal” entry in the ICSE system.  According to Ms Penhaligon, she told Ms Slattery that she had, in effect, vacated the former decision by altering the record, and that this was not an action that she was able to take unless there was “a jurisdictional record or cancellation of approval”.  In my view, this was almost certainly an overstatement of the effect of the “reversal” entry, although it doubtless had the appearance of something more substantial than merely changing a departmental record of citizenship approval having been given.  The actual approval itself would have remained legal and effective at that time.

10. On 1 June 2009, Ms Slattery received an internal email from Ms Hanny Kassab, who was identified by her email signature as “Manager, NSW Citizenship – Sydney”.  The email, which was copied into the ICSE system, relevantly stated as follows:

    [A]ccording to ICSE, you seem to have reversed the approval on a conferral application. This action is not within the appropriate delegation in the Citizenship Act. There are appropriate avenues within the scope of the Act and the role delineation in NSW Citizenship to deal with information that may impact on an approval of an application for Australian Citizenship by conferral. As you are aware, the complex conferral application[s] are managed in Sydney. I would appreciate it if you would redirect the case to Sydney, as we have the expertise and the role to manage any complex conferral matters, including any ID.

    In the future, I would greatly appreciate it if you would speak to me before directing any of my staff on any matters on which they report to me, in the first instance …

11. Ms Slattery gave evidence that she went immediately to discuss the email with Mr Callow.  In her account of the conversation, Mr Callow said words to the effect of “Don’t worry about it, leave it with me and I will arrange to have that email taken out of ICSE”.  Ms Slattery said that she understood that Mr Callow proposed this because he thought it was inappropriate for an internal communication such as Ms Kassab’s email to be entered into the ICSE system and because he knew that it had not been Ms Slattery’s intention to make a legal decision regarding the cancellation of Mrs Grass’ citizenship approval. 

12. Ms Slattery said that very shortly after making the entries on 29 May 2009, she became aware that she should not have taken this extra step of reversing the record of the approval of Mrs Grass’ citizenship application.  She said that at no time did anyone in the Department suggest to her that she should not have made the “hold conferral” entry, and that at no time did she form the view that she was not authorised to make the “hold conferral” entry.

13. Ms Slattery said that she attempted to reverse the cancellation entry but was unable to do so, and informed other officers in the Department of the position. 

14. The record of the approval of Mrs Grass’ application was reinstated in the ICSE system on 4 June 2009, six days after Ms Slattery had changed the entry recording the reversal of citizenship approval.  There is no suggestion that either of the applicants had any awareness that this had taken place until well after the event.  There is no evidentiary basis for concluding that this had, by and of itself, caused any harm.

    The investigation regarding Mrs Grass in 2009

15. It appears that in June 2009, Ms Slattery sought legal opinions about Mrs Grass’ case, although her recollection of the details was poor.  A file note on the ICSE system for 23 September 2009 by a Mr Jackson, who was an Acting Assistant Manager for NSW Citizenship Sydney, records Mr Jackson’s note of a conversation with Ms Slattery about the case, including his comment that “[i]f it appeared to be one where the pledge might be formally delayed or the approval cancelled then I suggested that it may be appropriate to refer it back to Sydney”. 

16. Ms Slattery’s evidence was that, around the time she received Mr Jackson’s note, she became aware that there was a process by which the Minister could exercise a formal statutory power to delay the making of a pledge.  She said that she understood that a client could only be prevented from making the pledge for a period of up to 12 months, and would need to be informed of the decision.  Ms Slattery said that she did not regard the making of a “hold conferral” entry in the ICSE system as having the same effect as such a formal decision.  For reasons that will be explained in further detail below, that understanding was correct.

17. On 24 September 2009, Ms Slattery received an email from one of her staff members, Ms Olga Yakovchyts, who was a Citizenship Integrity Officer in the Parramatta office.  That email provided a case history of Mrs Grass for referral to the Fraud Control and Investigations Section of the Department, which Ms Slattery recalled having asked the officer to prepare.  Based on the case history, Ms Slattery said that she was aware of the following:

    (1)Mrs Grass (then Ms Barreda) first entered Australia on a Filipino passport bearing a date of birth of 13 November 1954. 

    (2)Mrs Grass was removed from Australia as an unlawful non-citizen in January 2002, on the same Filipino passport.

    (3)In August 2003, Mrs Grass, this time with a passport stating that her date of birth was 13 November 1966, applied for and was granted a fiancée visa at the Australian High Commission in London.

    (4)Mrs Grass subsequently entered Australia on 7 January 2004 on a Filipino passport bearing a date of birth of 13 November 1966.

    (5)In Mrs Grass’ application for a fiancée visa, she listed two siblings, Edzon Adrienne Barreda and Elvira Marie Barreda, born in 1982 and 1979 respectively.  However, when these two persons made applications for extended eligibility, they stated that Mrs Grass was their mother.  They also provided birth certificates that showed that she had been born in 1954, and not in 1966.

    (6)The Department had three different birth certificates for Mrs Grass, all of which had different details of her parents and variations of her name.  There were also two marriage certificates showing that Mrs Grass had been married to Mr Barreda, first on 20 September 1979, solemnised by a judge, and for a second time on 7 October 1981, solemnised by a priest.

    (7)Mrs Grass’ permanent residence visa had been cancelled on 9 November 2006.  Although this had been re-instated by the MRT, the MRT concluded that Mrs Grass’ correct date of birth was 13 November 1954 and not 13 November 1966.

    (8)Notwithstanding the MRT’s findings, an FOI officer within the Department had changed the date of birth based on dental reports, statutory declarations, one of the birth certificates, the new Filipino passport and certification from a Mr Ariola, all of which Ms Yakovchyts regarded as “questionable”.

    (9)Ms Yakovchyts suspected that not all of the information available to the Department had been considered by the FOI officer.

18. On 25 September 2009, Ms Yakovchyts confirmed by email to the Fraud Control and Investigations Section that she was transferring the seven files of Mrs Grass’ case to them.  Ms Slattery was copied to that email.

19. Ms Slattery’s evidence was that she believed that no officers in the Department should disclose to or alert Mrs Grass to the fact that she was being investigated.  No legal basis for an obligation to notify a person that they are being investigated by a government department was identified, and I am not aware of any such obligation.  It is possible to imagine circumstances in which it would not be sensible to warn somebody that they are being investigated, especially if that might adversely affect the investigation in some way.  As already noted, this is in a different category to someone being actively misled, which will turn on the particular facts and circumstances and any justification for that taking place, an issue to which I now turn.

    The Department’s communications with Mr Grass – December 2009

20. It appears that in December 2009, Mr Grass called the Melbourne Contact Centre of the Department regarding the citizenship ceremony of his wife.  Two departmental file notes record details of interactions with staff.

21. The first file note, which is from 21 December 2009, reads:

    Client called MCC regarding ceremony as has been waiting over 6 months since approval.  Megan Slattery contacted by HCC TL – Catherine Brown – have been advised client ceremony still on hold pending investigation.  Client NOT to be advised of investigation or that ceremony on hold.  Please speak to Megan Slattery if there are further questions.  Client advised that there is currently a big waiting list for ceremony, and they will be contacted in due course.

22. Ms Slattery’s evidence was that she recalled having a conversation with somebody in the Melbourne Contact Centre, but did not remember it being with Ms Brown specifically.  She said that she remembered saying to the particular staff member words to the effect of “don’t tell them that the matter has been referred to Investigations”.  She said that, although there was a big backlog of people waiting for ceremonies at the time, she did not tell Ms Brown to provide that explanation to Mr or Mrs Grass.  She said that a minute dated 22 December 2011 of an investigation by the Workplace Relations and Conduct Section is incorrect insofar as it records that “Ms Slattery also stated that she instructed the call centre to advise Mr Grass that there was a long waiting list for conferral …”.  There is no reason to doubt Ms Slattery’s evidence.

23. The second file note apparently records an email by Ms Ordette Assey to Ms Slattery the following day.  It relevantly reads:

    Hi Megan

    I contacted the client’s husband Mr John Grass in response to the email recd and gave him the same information I told the client yesterday that at this stage Ryde Council have not provided any ceremony dates for next year.  He was quite persistent about knowing approximately when her ceremony would be as he had found out from the council that they hold ceremonies every month for 100 clients and he was sure his wife would be somewhere on the top of the list.  I advised him that there were still clients who were approved about the same time as his wife waiting for a ceremony.  Without advising him about the pending investigation, I said that the clients who were approved about May would be invited about Feb or March.  I also advised him that 100 clients per ceremony did not mean the first 100 on the list.  Some families had many children included in their application and the more number of children the number of main applicants would diminish.  He said we should do something about clients waiting for citizenship so long.  His wife was depending on her citizenship as she had travel plans.  He then thanked me for responding to his enquiry.

24. Ms Slattery said that she could not recall any conversation with Ms Assey around that time.  Ms Slattery said that, to the best of her recollection, she did not give her any instructions regarding what the person she spoke to should say to Mr or Mrs Grass.

25. Ms Slattery’s evidence was that she understood at the time that the practice within the Department was not to disclose to a client the fact that an issue relating to that client was being investigated.  She said that this understanding was based on her experience in dealing with clients who were the subject of investigations, particularly when she worked as a Compliance Officer and in the Citizenship Section of the Department.  Ms Slattery said that she had had involvement in a number of such cases where the fact of the investigation had not been disclosed to the client.

    Legal advice within FOI Section – January 2010

26. It appears from the documents in evidence that on 4 January 2010, the Acting Director of the FOI and Privacy Policy Section of the Department, Mr David Turner, sent an email to Ms Karen Kinsela, the Acting Manager of the FOI Section at the time, forwarding legal advice applicable to, but not specifically about, Mrs Grass’ case.  The original advice, which was dated 18 June 2008, was from an officer at the Australian Government Solicitor and concerned the ability of a departmental officer to revisit an amendment decision made in respect of a client’s records.  It appears that the impetus for the advice being forwarded to Ms Kinsela was a request from the Citizenship Section that the FOI decision in relation to be Mrs Grass be revisited.  The substance of the advice is to the effect that the FOI decision could only be revisited in limited circumstances.  The advice appears to be relied upon by the applicants to say that it was unlawful for Ms Slattery to have reached a conclusion that was inconsistent with the FOI decision, and to have later made her own changes to the record. 

27. It is not necessary to decide whether or not the advice from the Australian Government Solicitor was correct, because Ms Slattery’s evidence was that she had no recollection of ever seeing that legal advice. 

    Notice of consideration of cancellation – February 2010

28. On 8 February 2010, Ms Slattery sent a letter to Mrs Grass advising that the Department was considering cancellation of the approval of her application for Australian citizenship on character grounds. 

29. Ms Slattery said that she could recall being informed, prior to 8 February 2010, that the Fraud Control and Investigations Section was not going to investigate Mrs Grass’ case.  I note that the applicants appear to rely upon the position taken by that section of the Department to suggest that it was unlawful for Ms Slattery to take any further action in relation to Mrs Grass.  It is not apparent why that should be so.  A decision not to commence a criminal investigation does not necessarily have any bearing on administrative actions more generally, and there was nothing to suggest that this situation was in a different category to that general position.

30. Ms Slattery said that at the time she wrote her letter to Mrs Grass, she had reviewed six files relating to Mrs Grass, each of which was in evidence.  Ms Slattery said that she recalled being satisfied from those files and the case history she had requested from Ms Yakovchyts that Mrs Grass had provided false and misleading information to the Department.

31. After communications with Mr Grass in relation to the letter of 8 February 2010, Ms Slattery stated in an email to Mr Grass dated 12 February 2010 that she would document the reasons why she was considering cancellation of the approval of Mrs Grass’ Australian citizenship and that she would provide Mrs Grass with a further 28 days to respond to the new letter.

    Request for assistance made to the Australian Embassy in Manila – March 2010

32. It appears that on 17 March 2010, Ms Yakovchyts made a request by email to staff at the Australian embassy in Manila for assistance with verifying Mrs Grass’ identity, background, and birth and marriage details.  Ms Slattery was copied to that email.

    Changing Mrs Grass’ date of birth in the ICSE system – April 2010

33. On 29 April 2010, Ms Slattery changed Mrs Grass’ date of birth from 1966 to 1954 in the ICSE system.  The change made was to nominate the 1954 date of birth as the “principal/preferred” date of birth.  It did not entail deletion of the details of the 1966 date of birth, which remained recorded.

34. Ms Slattery gave the following evidence about her understanding of the ICSE entries:

    (1)The ICSE system contained an entry for a “principal/preferred” date of birth along with aliases, which might include the same name but with a different date of birth.  One person might have many aliases.  Officers above APS3 [Australian Public Service Level 3] were able to change an alias to a “principal/preferred” identity or add other aliases.  Ms Slattery had done so on a number of other occasions before April 2010.  In making those changes, the ICSE system provided a list of standard reasons, which included “forms”, “informed by client” and “other documents”.  That is, the reasons for making a change were not confined to FOI amendment applications.

    (2)Ms Slattery said that she had observed that officers who were APS3 or above routinely updated the records as new information about clients became available.

    (3)In Ms Slattery’s ICSE system training, which she had received before 2010, she had been instructed that the ICSE system should record the most accurate identity details within the “principal/preferred” field.

1. Ms Penhaligon also gave evidence about practices concerning amendment of records in the ICSE system.  She said that it was her understanding, based on the Privacy Act 1988 (Cth), that officers were expected to ensure that ICSE records were kept up to date. She said that it was her understanding in 2010 that, if an officer had a reasonable view that information about a client recorded in the ICSE system was misleading or inaccurate, the officer was authorised in most cases to alter the record in the system by adding or amending notes, so that the record was not misleading or inaccurate. The basis for this power in 2010 was Principle 7 of the Information Privacy Principles, as then set out in s 14 of the Privacy Act.

2. In her evidence, Ms Penhaligon said that it was her personal view in 2010 that if there was information recorded in the ICSE system as a result of changes to the ICSE records made under the FOI Act, then the Information Privacy Principles did not authorise further change.  She also said, however, that other officers within the Department whom she spoke to at the time expressed to her a different view.

3. Ms Slattery said that she had made the change to Mrs Grass’ records in ICSE because she believed that Mrs Grass’ year of birth was 1954, rather than 1966.  This belief was based on the information available to her at the time, which included, in particular, information that she had received by email from an integrity officer, Ms Melody Subagan, who was based in the Australian Embassy in Manila.  Ms Subagan had advised that:

   (1)the verification checks of Mrs Grass’ three different birth certificates revealed only one genuine birth certificate, bearing a date of birth of 13 November 1954;

   (2)the tax identification number verification and social security system verification confirmed Mrs Grass’ correct date of birth as 13 November 1954;

   (3)the results obtained from Manila also included information about Mrs Grass’ three siblings, including one who was born on 23 November 1966, ten days after Mrs Grass’ claimed date of birth of 13 November 1966;

   (4)staff in Manila had also carried out birth certificate verification checks on Mrs Grass’ children’s birth certificates, which again confirmed 13 November 1954 as her correct date of birth; and

   (5)both of Mrs Grass’ educational certificates, from Lipa City Colleges and Far Eastern University respectively, were non-genuine.

4. On 23 July 2010, Ms Slattery received an email from Ms Linda Rossiter, Director of the FOI and Privacy Policy Section of the Department, which referred to Ms Slattery’s change to the ICSE system and relevantly stated:

   Can you please advise on what grounds you made this amendment, given there are no reasons attached to the ICSE record and that the previous change to Ms Grass’ date of birth was made by a departmental officer delegated to do so under the FOI Act?

   Updated notice of consideration of cancellation – 11 May 2010

5. On 11 May 2010, Ms Slattery sent an updated letter to Mrs Grass with details of evidence of adverse character.  Ms Slattery said that this letter was based on her review of all of the files relating to Mrs Grass available to her at that date, together with the information received from the Australian Embassy in Manila.  Mrs Grass provided three separate responses but did not address the Department’s concerns in respect of her character.  It is not necessary to detail those responses for the purposes of these reasons.

   Interview with Mr and Mrs Grass – 4 June 2010

6. On 4 June 2010, Ms Slattery conducted an interview with Mr Grass and Mrs Grass.  The transcript of the interview was in evidence.

7. Mr Grass provided a letter at the interview.  Following the interview, Mrs Grass also provided that letter by email, together with several attachments in support of her good character. 

   Citizenship cancellation decision – 5 July 2010

8. On 5 July 2010, Ms Slattery sent a letter to Mrs Grass with an attached decision record that recorded her decision to cancel Mrs Grass’ citizenship approval. 

9. Ms Slattery’s evidence was that, in coming to that decision, she had considered all of the documents which were available to her at the time, including the dental records Mr and Mrs Grass had provided and the statutory declaration of a school principal at a school Mrs Grass claimed to have attended.

10. On 12 July 2010, Ms Slattery sent an email to the Visa Cancellations team of the Department requesting an investigation as to the cancellation of Mrs Grass’ visa. 

11. On 19 July 2010, Ms Slattery emailed Ms Kinsela, informing her of the cancellation decision and requesting that the FOI decision to change Mrs Grass’ date of birth be reviewed.

    Commonwealth Ombudsman’s Investigation

12. It appears from the documents in evidence that:

    (1)at some point following receipt of Ms Slattery’s letter of 8 February 2010, the applicants made a complaint to the Commonwealth Ombudsman; and

    (2)the Department prepared responses to requests by the Commonwealth Ombudsman’s Office for further information relating to the complaint. 

13. The Department’s response to the Ombudsman included an email drafted by Ms Slattery in response to a proposal by the Ombudsman’s Office to record administrative deficiency in Mrs Grass’ case.  Ms Slattery’s evidence was that the email was cleared by the Global Manager of Citizenship, Settlement and Multicultural Affairs at the time.  The final response was sent by the Department.

14. Ms Penhaligon said that she was copied to the email sent in response to the Ombudsman’s notice but did not have any involvement in its drafting or approval, as this was not part of her role. 

    The applicants’ challenge in the Federal Magistrates Court to the citizenship cancellation decision

15. On 2 November 2012, Mrs Grass commenced proceedings against the Minister in the Federal Magistrates Court, seeking orders that the 5 July 2010 decision by Ms Slattery to cancel her citizenship approval be set aside.

16. Shortly afterwards, on 16 January 2013, the Minister’s solicitors informed Mrs Grass by email that he would consent to orders setting aside this decision.  The consent orders attached to this email included a note that the Minister “concede[d] that the decision of the Respondent’s delegate dated 5 July 2010 is affected by a reasonable apprehension of bias”.

17. In early 2013, shortly after the Minister had agreed that the 5 July 2010 decision to cancel the May 2009 approval should be set aside, Ms Penhaligon asked Ms Parker, a citizenship officer based in the Department’s Melbourne regional office (and sixth respondent), to review Mrs Grass’ citizenship application.  At this time, Ms Parker was a senior decision-maker with considerable policy experience who had had no previous exposure to Mrs Grass’ case.  There is no evidence to suggest that Ms Penhaligon, or anyone else in the Department, gave any directions to Ms Parker as to any decision she should make in relation to Mrs Grass’ application.

18. It is important to note two emails that were sent at the time of the proceedings in the Federal Magistrates Court, as they form what appears to be the main basis for allegations against those involved that they unlawfully consulted and collaborated to bring about the cancellation of Mrs Grass’ citizenship approval.

19. The first email was sent on 7 February 2013 by Mr Vikneson, a Senior Legal Officer in the Enforcement and Citizenship Litigation Section of the Department (and seventh respondent).  It was sent to Ms Penhaligon and Mr Burn, Director of the Citizenship Policy Section of the Department (and third respondent), copying Mr Dwyer, the Director of the Enforcement and Citizenship Litigation Section of the Department (and eighth respondent), and is in the nature of a report on the proceedings in the Federal Magistrates Court:

    By way of an update, despite our attempts, this case was not resolved by our earlier proposed Consent Orders.  As such, the matter proceeded to a hearing (as listed), before the Federal Magistrate yesterday afternoon.  I enclose a copy of the hearing report from our solicitor for your attention.

    In summary, after hearing arguments from the parties[’] representatives, the Court has reserved judgment.  I also subsequently spoke to our solicitor who advised that the Magistrate did not indicate a time by which he may hand down judgment [the following lines are redacted].

    Meanwhile, as we discussed at the last meeting in Peter’s office, I assume that arrangements have been put in place and processing is underway in regards to Mrs Grass’ citizenship application.

20. The second email was sent by Ms Penhaligon later that day, forwarding Mr Vikneson’s email to Ms Parker, and relevantly copying Mr Burn:

    Please refer to the outcome of the hearing yesterday in the matter of Grass.

    It is important that we keep moving quickly – I am going on leave today for a week and [a] bit but could you please work with Adrian and Vik to complete the drafting of the procedural fairness letter. 

    Aydin Could I ask you please that you provide Dana with support to complete this – I know that she is having trouble with her DRAGON at the moment and may need assistance in preparing the draft letter.  Not knowing what the outcome will be makes it very difficult – we will hope for the best that the decision is set aside at a later date rather than the day the finding is handed down. …

21. Both emails reflect a concern that if the Federal Magistrates Court were to make orders setting aside the cancellation decision with immediate effect, arrangements would need to be in place for reconsideration of that decision to take place on an urgent basis. 

22. On 13 February 2013, the Federal Magistrates Court handed down its judgment and made an order that the “decision dated 5 July 2010 to cancel the approval of [Mrs Grass’] citizenship application be set aside with effect from 8 April 2013”: Grass v Minister for Immigration [2013] FMCA 74. The Court noted at [6] the Minister’s concession that there had been a breach of natural justice. Regarding the delayed effect of the orders, the Court considered at [22] that it was appropriate to give the Minister time “to decide in a careful and considered way … whether Australian citizenship should be conferred on [Mrs Grass]”. 

    8 April 2013 cancellation decision

23. On 12 March 2013, Ms Parker notified Mrs Grass that she was considering whether, upon the earlier decision of 5 July 2010 being set aside, she should cancel the approval that had been granted to Mrs Grass’ application for Australian citizenship.  Ms Parker stated that Mrs Grass should provide any comments or response by 27 March 2013, but could request an extension stating reasons why such an extension was required.

24. On 25 March 2013, Mrs Grass wrote to Ms Parker, asserting a failure to provide procedural fairness by reason of not having been given more time to respond, but nonetheless providing a lengthy response to Ms Parker’s letter.  On 26 March 2013, Ms Parker sent an email to Mr Vikneson and Ms Penhaligon seeking advice in relation to this letter: 

    … How much of this should I respond to outside of the review process?  The client has provided no real additional evidence other than their assertions that there are extenuating circumstances relating to why Mrs Grass overstayed her Visa, and the issue of the date of birth again. …

25. Ms Penhaligon responded on the same date.  Relevantly, she said:

    I think it best that Litigation provide you with advice on the best way forward – I am sure Vik will seek further advice from the panel firm on how to respond. …

26. It should be noted that Ms Parker’s email, and Ms Penhaligon’s limited response, form the basis for several of the applicants’ allegations of misfeasance. 

27. Ms Parker responded to Mrs Grass by letter dated 2 April 2013.  She acknowledged the request by Mrs Grass for further time to respond, but indicated that she had decided not to grant that extension for various reasons.  These included the fact that Mrs Grass had provided a substantive response to the matters in her 12 March 2013 letter and had not identified what further evidence or submissions she needed additional time to provide.  Ms Parker confirmed that she would take into account material previously submitted by Mrs Grass to the Department concerning whether or not she was of good character, and that she would take into account any further material or submissions provided to her up until the time when she would make her decision.

28. On 7 April 2013, Ms Parker received further submissions from Mrs Grass by letter.  That letter did not request any further extension of time to respond, or indicate that there was any other material or submissions that Mrs Grass would have provided if afforded further time.

29. On 8 April 2013, Ms Parker exercised her power under s 25 of the Citizenship Act to cancel the approval of Mrs Grass’ citizenship application on the basis that she was satisfied that Mrs Grass was not of good character.  She sent a letter to Mrs Grass notifying her of this decision and attaching the decision record.

30. In relation to the question of good character, Ms Parker’s findings included that Mrs Grass had previously unlawfully overstayed her visa for a period of two years, had during that time worked unlawfully in Australia, had demonstrated a pattern of false and deliberate misrepresentation concerning her identity, and had provided false information to the Department and various other Federal and State instrumentalities.

    Cross-examination of Ms Slattery

31. The cross-examination of Ms Slattery by Mr Grass took place on the second day of the hearing. Ms Slattery was asked to indicate what training, experience and qualifications she had to make decisions under ss 25 and 26 of the Citizenship Act.  Ms Slattery said that she had attended formal training run by the national office, although she could not recall at what time.  Ms Slattery said that officers with delegations did not necessarily know 100 per cent of the law when they commenced their duties, but that a lot of the work in the Department was such that they learnt on the job.  Ms Slattery said that she had access to reference material and asked experienced colleagues for their advice. 

32. It was put to Ms Slattery, without inviting a response, that she was required by s 26(3) of the Citizenship Act to advise Mrs Grass in writing that she had placed her citizenship ceremony on hold.  She was then asked whether she considered that she had an obligation to check the terms of the Citizenship Act before doing so. Ms Slattery said that she did check the legislation, but was not directly aware of s 26(3) of the Act at the time.

33. It was put to Ms Slattery that Mrs Grass’ citizenship ceremony was delayed for 13 and a half months. This was said to be contrary to s 26(3) of the Citizenship Act, insofar as it provides that the Minister may determine in writing that a person cannot make the pledge until the end of a specified period not exceeding 12 months. It was put to Ms Slattery, without inviting a response, that an email she sent to Ms Yakovchyts on 24 September 2009 suggested that she had an awareness of s 26(3), given that she had relevantly written:

    Although this case has been approved for citizenship it is currently on hold whilst we refer the case to you for investigation.  Could you please let me know if an investigation is undertaken on this case as we would then be able to place the Australian Citizenship ceremony on hold for 12 months to enable the investigation to proceed?

34. Ms Slattery was asked why she did not send Mrs Grass to her ceremony, given the 12-month limit in s 26(3) on determining to delay a pledge. Ms Slattery said that she did not formally delay the making of her pledge. She said that she had administratively put Mrs Grass’ case on hold while she referred the matter to the Fraud Section of the Department. She said that the Fraud Section had decided not to prosecute, so she picked up the case and considered whether or not there were grounds for cancellation of approval. She emphasised that she did not formally invoke a 12-month period.

35. Ms Slattery was asked if, at the time she placed the hold in the ICSE system, she was aware that Mrs Grass had been scheduled for a ceremony or was just on a waiting list.  Ms Slattery said that she was not specifically aware of whether Mrs Grass had been allocated a date to attend a ceremony.

36. Ms Slattery was asked whether she checked with anybody to see if she had the authority to reverse the record of Mrs Grass’ citizenship approval in the ICSE system.  She said that she did not.  She said that she did not realise at the time that she had made that mistake.  It was put to Ms Slattery that, by her entry in the ICSE system, she was, in effect, cancelling Mrs Grass’ approval before an investigation had commenced.  Ms Slattery said that she did not believe that was the case.  She said that she understood from her legal training in the Department that the making of a decision involved both a state of mind and the steps taken to enact that decision in the ICSE system.  She said that she did not have it in her mind that she was trying to cancel Mrs Grass’ approval.  She said that she was simply trying to put Mrs Grass’ case on hold. 

37. Ms Slattery was asked to identify what authority she had to amend Mrs Grass’ date of birth in the ICSE system.  Ms Slattery said that it was very common practice for anyone with access to the ICSE system to amend details, and that they would add any and all aliases of clients to the system.  Ms Slattery agreed that there was a conflict with the FOI decision, but said that she was bound to do what she thought to be the right thing, which was to recognise in the ICSE system the correct date of birth from the evidence in front of her.  Ms Slattery said that she believed she had the authority to make the amendment. 

38. Ms Slattery was asked whether she accessed the material relied upon by the FOI officer, Ms Lath, in making her decision of 30 June 2008.  Ms Slattery said that she read Ms Lath’s decision and that recalled looking through the evidence Ms Lath had considered.

39. It was put to Ms Slattery that the core reasons for her cancellation decision in 2010 were her not having been satisfied of Mrs Grass’ identity and the fact that there had been different dates of birth previously.  It was put to Ms Slattery that she did not have authority under the Citizenship Act to come to a different decision than was made under the FOI Act.  Ms Slattery said that she understood that there were different Acts, but that she was bound by the Citizenship Act.  She said that “Policy” and colleagues had put it to her that the Citizenship Act was the much stronger framework in regard to a person’s identity. 

40. It was put to Ms Slattery that Mrs Grass was entitled to be notified under natural justice principles to have the opportunity to respond to the intention to change her date of birth in the ICSE system.  Ms Slattery said that she did not consider it necessary to notify Mrs Grass that she was considering whether to edit Mrs Grass’ “principal/preferred” date of birth in the ICSE records.  Ms Slattery said that Mrs Grass was provided natural justice under the Citizenship Act in February when considering whether to cancel the approval of her citizenship application, which was the focus of her attention.  

41. It was put to Ms Slattery that “identity” is not a ground under s 26 for deferring a ceremony or cancelling an approval. Ms Slattery’s evidence was that Ms Penhaligon had suggested to her that it was open for her to consider identity as part of the consideration of whether a person is not of good character.

42. It was put to Ms Slattery that she had consulted with Mr Callow, Ms Penhaligon and Mr Burn about the Department’s response to the Commonwealth Ombudsman’s investigation.  She accepted that she may have.

    Cross-examination of Ms Penhaligon

43. Ms Penhaligon was asked about her awareness of the hold on Mrs Grass’ citizenship ceremony and the reversal of her approval in the ICSE system.  Ms Penhaligon said that she did not believe that there had been a formal delay of the citizenship ceremony at that time.  She said that Mrs Grass’ citizenship approval had not been cancelled by Ms Slattery’s changes in the ICSE system.  She said it was just that the record in the system had been reversed, and that this change in the system did not actually cancel the approval.

1. This aspect of the applicants’ claim concerns Ms Slattery’s conduct, on 29 April 2010, in changing Mrs Grass’ record in the ICSE system. As detailed at [83]-[84] above, the change made by Ms Slattery was to alter the “principal/preferred” date of birth recorded on Mrs Grass’ file to reflect what Ms Slattery believed to be her correct date of birth. 

2. The applicants submit that Ms Slattery had no lawful authority to “tamper” with Mrs Grass’ record.  They submit that Ms Slattery did so because she wished to justify her decision to cancel the approval of Mrs Grass’ application for citizenship.  It is submitted that Mrs Grass was not notified of this change in order to keep the applicants ignorant of Ms Slattery’s “misconduct”.

3. The respondents resist the submission that Ms Slattery acted without authorisation.  The respondents point out that at the relevant time, Principle 7 of the Information Privacy Principles provided a power and a duty for a record-keeper to amend information where satisfied that the record was based upon fraudulent information.  This power is said to have been enlivened by Ms Slattery’s finding that Mrs Grass had knowingly provided false or misleading information to the Department. 

4. There are two main difficulties with the applicants’ claim in this regard. The first is that I do not accept that Ms Slattery was actuated by malice or took this step in the knowledge that what she was doing was beyond her authority. As already discussed, I accept Ms Slattery’s intentions as genuine. At the time that Ms Slattery made these entries, she had received and read the advice furnished by email from the Australian Embassy in Manila, summarised at [87] above, and had formed the view that 1954 was the correct year of birth. She accepted in cross-examination that there was a conflict with the FOI decision, but said that she was bound to do what she thought to be the right thing, which was to recognise in the ICSE system the correct date of birth from the evidence in front of her.

5. As to the assertion that Ms Slattery knowingly acted beyond her authority, it is difficult to identify precisely what limits, if any, there were on Ms Slattery’s capacity to alter Mrs Grass’ date of birth in the ICSE system, given that there had already been a decision made under the FOI Act in relation to that record.  That issue is complicated to the extent that the question of validity and the question of best practice may lead to different conclusions.  The parties did not address this matter in any detail, and I do not consider that I should arrive at a concluded view.  It suffices to observe that there appeared to be divergent views on this point, and some controversy within the Department at the time.  For instance, Ms Penhaligon expressed her personal view that, if there was information that was recorded in the ICSE database as a result of changes to the records made under the FOI Act, then the Information Privacy Principles did not authorise further change.  However, she also noted her awareness that others within the Department held different views.

6. In any event, I accept Ms Slattery’s evidence that she believed that this was a step open to her to take.  This is underscored by her evidence in cross-examination that it was very common practice for anyone with access to the ICSE system to amend details in the ICSE, and that they would add any and all aliases of clients to the system.  It is true that Ms Slattery was criticised by officers of the FOI Section after she had made the change.  The fact that those views were expressed about Ms Slattery’s conduct, however, cannot be taken as proof of what Ms Slattery believed at the time.  Nor can they permit, let alone compel, a finding of misfeasance.  I should record that I am not convinced that the FOI view was necessarily correct, but do not consider that I need to determine that conclusively.

7. The second difficulty with the applicants’ claim is that they cannot show that Ms Slattery’s change to Mrs Grass’ records caused them any loss or damage.  On this point, it should be noted that the applicants proceeded on the incorrect assumption that client information in the Department’s records is binding on decision-makers within the Department, such that:

   (1)it was not possible for Ms Slattery to reach the conclusion she did about Mrs Grass’ date of birth if it conflicted with the FOI decision and the Department’s “official agency record”;

   (2)it was not possible for Ms Slattery to find that Mrs Grass was not of good character unless she first changed the “principal/preferred” date of birth in the ICSE system; and

   (3)Ms Slattery’s amendment of the ICSE system led to Ms Parker doubting Mrs Grass’ asserted date of birth, and thus led to the second cancellation of Mrs Grass’ citizenship approval.

8. However, the applicants impute to the ICSE system a legal significance that it simply does not have.  As a tool used by the Department in the performance of its functions, the ICSE system may evidently be of assistance to decision-makers, but there is no apparent basis at law to say that it binds them, as opposed to an underlying decision perhaps binding them.

9. It follows that the applicants cannot prove misfeasance in public office by Ms Slattery on this basis.

   (5)       The cancellation of the approval of Mrs Grass’ application for citizenship

10. This aspect of the applicants’ claim concerns the decision made by Ms Slattery to cancel the approval of Mrs Grass’ application for citizenship on 5 July 2010.  As already noted, that decision was ultimately set aside in 2013 by the Federal Magistrates Court on the basis of apprehended bias, which had been conceded by the Minister.

11. It is not in doubt that Ms Slattery exercised the cancellation power under s 25 of the Citizenship Act on 5 July 2010.  The real issue is her state of mind at the relevant time.  On this point, the respondents submit that there is no basis to find that Ms Slattery intended to cause harm to Mrs Grass in the relevant sense.  They also submit that there is no basis to find actual bias, although I do not consider this to be particularly relevant given that bias and malice are not concomitant. 

12. Again, any claim based on malice must be rejected.  Nothing in the evidence suggests that Ms Slattery was actuated by anything other than a genuine concern to conscientiously and diligently perform her functions as a delegate of the Minister and Manager of the Parramatta office of the Citizenship Section of the Department.  I can see how the applicants, for their part, perceived that Ms Slattery had a fixation on Mrs Grass’ case.  They have doubtless been emboldened in this regard by the criticisms that have been made of the Department’s handling of Mrs Grass’ case.  However, the fact that Ms Slattery may not have taken the best course of action open to her in investigating this matter does not mean that she acted maliciously.  

13. Moreover, the power to cancel Mrs Grass’ approval on 5 July 2010 was one that Ms Slattery had the delegated authority to exercise.  In this regard, I do not accept the applicants’ assertion that what she did was “unlawful” because her views conflicted with the FOI decision and the “principal/preferred” date of birth that had been recorded in the ICSE system.  The FOI decision and the ICSE system did not bind Ms Slattery in her decision-making.  Ms Slattery was performing an independent function under the Citizenship Act, which was to consider whether Mrs Grass was not of good character.  It was open to her to make her own findings on the material before her. 

14. Finally, this claim must also be rejected on the basis that there is no admissible evidence of any loss or damage suffered by Mrs Grass as a result of the cancellation decision.  The respondents point out that, in any event, Ms Slattery’s decision was set aside in early 2013, with the Minister having conceded that there was a reasonable apprehension of bias.  As a result, the decision ceased to have any effect, and the citizenship approval was revived.  Whether or not that approval was cancelled was then a matter to be considered independently by a different officer, namely Ms Parker. 

15. It follows that the applicants cannot prove misfeasance in public office by Ms Slattery on this basis. 

    Conclusion in relation to Ms Slattery

16. As none of the bases for misfeasance in public office have been established against Ms Slattery, the claim made against her must be dismissed.

    The claim against Ms Parker

17. Although Ms Parker is the fifth respondent, it is convenient to deal with the case against her next as she was the only other respondent to make any substantive decision concerning Mrs Grass.  Ms Parker was the citizenship officer in the Department who reconsidered Mrs Grass’ citizenship approval in 2013 after Ms Slattery’s cancellation decision was set aside. 

18. The grounds of the application against Ms Parker are set out at [66]-[82] of the amended statement of claim.  It is alleged that she:

    (1)collaborated with other citizenship officers to expedite the completion of the notice of intention to consider cancellation of Mrs Grass’ citizenship approval (at [67]);

    (2)excluded relevant considerations and took into account irrelevant considerations in her 8 April 2013 decision (at [69]);

    (3)consulted with other citizenship officers regarding Mrs Grass’ complaint of having been denied procedural fairness (at [71]); and

    (4)refused to provide procedural fairness to Mrs Grass in her 8 April 2013 decision (at [72]).

19. The applicants’ claims that Ms Parker “collaborated” with other citizenship officers appear to be based on the fact that, in anticipation of the Federal Magistrates Court setting aside Ms Slattery’s cancellation decision, arrangements were made within the Department for Ms Parker to urgently reconsider Mrs Grass’ citizenship approval. For instance, in an email sent on 7 February 2013 (reproduced at [104] above), Ms Penhaligon asked Ms Parker if she could please work with “Adrian” (Mr Burn) and “Vik” (Mr Vikneson) to complete the drafting of “the procedural fairness letter”.  Ms Penhaligon indicated that it is “important that we keep moving quickly” and that “we will hope for the best that the decision is set aside at a later date rather than the day the finding is handed down.” 

20. The Department’s intention to have Mrs Grass’ approval reconsidered was foreshadowed before the Federal Magistrates Court (see Grass), and Cameron FM ultimately made orders setting aside Ms Slattery’s decision to take effect on a specified later date.  The purpose of this delay was to avoid “a race by the parties to pledge commitment and to cancel the approval” (at [14]).  His Honour considered that it was appropriate to give the Minister time “to decide in a careful and considered way … whether Australian citizenship should be conferred on [Mrs Grass]” (at [22]). 

21. In the circumstances, I regard the impugned communications as unexceptional and I reject the applicants’ allegations that there was anything unlawful in the course that the relevant officers took. 

22. Another aspect of the applicants’ claim is a complaint that Ms Parker consulted with other departmental officers in her decision-making process. The basis for that complaint appears to be the email sent by Ms Parker to Mr Vikneson and Ms Penhaligon on 26 March 2013 (reproduced in part at [108] above) seeking advice on the process she should take to address Mrs Grass’ letter of the previous day. I do not see how the fact of this correspondence can form the basis for a finding of misfeasance. Ms Parker did not ask for guidance as to the substance of the response, but rather only as to the extent to which her response should be confined to her decision record. It does not indicate malice.

23. The burden of the applicants’ other complaints is directed to Ms Parker’s decision to cancel Mrs Grass’ citizenship approval.  This aspect of the claim must also be rejected for three reasons submitted by the respondents. 

24. First, there is no basis for doubting the lawfulness of Ms Parker’s exercise of power.  As the respondents submit, the decision record is evidence of a careful and thorough examination of the evidence contained in relevant departmental files concerning Mrs Grass.  I do not consider that there is any substance to the allegation in the amended statement of claim that Ms Parker “excluded numerous relevant considerations … including four Commonwealth Ombudsman reports that the decision maker declared she had reviewed”.  Ms Parker addressed those reports on page 9 of her decision, noting that they showed that Mrs Grass first notified the Department in 2002 that her year of birth was 1966.  However, Ms Parker plainly did not accord this much weight, stating that “[t]he act of notifying the Department that your correct year of birth is 1966 does not make this a fact”.  No basis has been given to suggest that this was other than a reasonable way to deal with that material.  Moreover, there is also no basis to allege that there was any denial of procedural fairness.  Mrs Grass made two lengthy submissions to Ms Parker in response to the letter of 12 March 2013.  While Mrs Grass was denied an extension of time to make further submissions, Ms Parker had a reasonable basis to do so: the applicants had not indicated what further material they wished to provide, and they had been able to make detailed submissions in any event. 

25. Secondly, there is no evidence to suggest that Ms Parker did anything other than honestly exercise a power under the Citizenship Act.  As such, any claim that Ms Parker was malicious or knew or was recklessly indifferent to the possibility that what she was doing was beyond power must be rejected. 

26. Finally, there is no basis for finding that Ms Parker’s conduct caused either of the applicants any “material damage”.  In large part, the applicants’ complaint is really that Mrs Grass has been deprived of the entitlement to become a citizen.  However, that outcome was a natural consequence of the exercise of the statutory power, there being no basis to find that the power was exercised other than for genuine reasons.  The respondents also point out that it was made clear to Mrs Grass by the Department that she has not been prevented from making a fresh citizenship application at any time since April 2013.  Indeed, the making of a fresh application is a course that remains open to her.

27. It follows that the claim against Ms Parker must be dismissed.

    The claim against Mr Callow

28. Mr Callow was the Director of Citizenship in the Parramatta office of the Department.  Ms Slattery reported to him at the relevant times.

29. The grounds of the application against Mr Callow are set out at [59]-[65] of the amended statement of claim.  It is alleged that Mr Callow:

    (1)authorised the “unlawful” delay of Mrs Grass’ citizenship ceremony (at [61]);

    (2)directed citizenship officers to delete an email trail that disclosed misconduct by Ms Slattery and himself (at [62]);

    (3)recorded a false statement in the ICSE system advising that Ms Slattery’s cancellation of Mrs Grass’ citizenship approval had been a mistake (at [63]);

    (4)reinstated Mrs Grass’ citizenship approval without notifying her or obtaining her consent (at 64]); and

    (5)made false statements to investigators to conceal the misconduct by Ms Slattery and himself (at [65]).

30. The first allegation against Mr Callow appears to be based on the fact that in 2009, he was consulted by Ms Slattery before she placed Mrs Grass in a “hold conferral” group in the ICSE system.  The assertion of misfeasance on this basis must be rejected.  There is no suggestion in the evidence that Mr Callow did more than advise that the “hold conferral” procedure was one that Ms Slattery could use while investigating her concerns. 

31. The second allegation appears to refer to the events described at [61] above, whereby Mr Callow also made arrangements for an email exchange to be removed from the ICSE system. In that exchange, another departmental officer, Ms Kassab, criticised Ms Slattery for having purported to reverse the approval of Mrs Grass’ citizenship application in the ICSE system. Ms Slattery gave evidence that Mr Callow proposed to remove the email exchange because he thought it was inappropriate for internal communications to be entered into the ICSE system and because he was satisfied that it had not been Ms Slattery’s intention to make a legal decision regarding the cancellation of Mrs Grass’ citizenship approval. Instead, Mr Callow made arrangements for the email text that had been duplicated in the ICSE system to be replaced with a more succinct note summarising the order of events. Although not explicit on the evidence, it seems that it was Mr Callow who, as he foreshadowed he would, made arrangements for the “reversal” entry to be undone. 

32. The evidence does not establish that any email trail was deleted as alleged, or that anything was done to remove or delete the email itself or any chain of emails.  This assertion of misfeasance fails at the first factual hurdle of establishing that what is relied upon in fact took place. 

33. The third allegation was that Mr Callow recorded a false statement in the ICSE system advising that Ms Slattery’s cancellation of Mrs Grass’ citizenship approval had been a mistake.  I am satisfied that Ms Slattery did in fact make a mistake, such that this allegation also fails at a factual level.

34. The fourth allegation, that Mr Callow reinstated Mrs Grass’ citizenship approval without notifying her or obtaining her consent, proceeds on the incorrect assumption that a change in a record of citizenship approval made any difference to the existence or otherwise of that approval.  It did not.  While the record in the ICSE system was erroneously altered, and then that alteration reversed, the fact of the approval did not change.  However, even if the approval itself had been erroneously changed and then rectified when the mistake was discovered a few days later without any identified consequences flowing from that, I am unable to see how any failure to advise Mrs Grass of any such reinstatement by way of correction of error was required, or, if it was, how that could possibly constitute any aspect of misfeasance in public office.

35. The fifth allegation against Mr Callow was that he made false statements to investigators to conceal the misconduct by Ms Slattery and himself.  No making of any false statement by Mr Callow has been identified, let alone proven.

36. In any event, no use of power was involved and no malice was established for each of the allegations against Mr Callow.

37. It follows that the claim against Mr Callow must be dismissed.

    The claim against Ms Penhaligon

38. Ms Penhaligon was an Executive Level 1 officer and manager of the Citizenship Helpdesk at the relevant time. 

39. The grounds of the application against Ms Penhaligon are set out at [73]-[82] of the amended statement of claim.  It is alleged that she:

    (1)collaborated with other citizenship officers to expedite the completion of the notice of intention to consider cancellation of Mrs Grass’ citizenship approval (at [74]);

    (2)consulted with other officers and external solicitors regarding Mrs Grass’ complaint of having been denied procedural fairness (at [80]);

    (3)refused to provide Mrs Grass procedural fairness (at [81]); and

    (4)made a “false” statement to other departmental officers that Mrs Grass “had committed fraud” in purporting to make a citizenship pledge on 11 April 2013 (at [82]) – that purported pledge apparently took place after Ms Parker’s 8 April 2013 decision to cancel the approval of Mrs Grass’ citizenship application, so could not have been effective.

40. The first aspect of the claim against Ms Penhaligon appears to concern the email she sent to Ms Parker, Mr Vikneson and Mr Burn on 7 February 2013 regarding reconsideration of Mrs Grass’ case.  I have largely addressed this correspondence at [228] to [230] above.  As already observed, I regard the impugned communications as unexceptional and I reject the applicants’ allegation that there was anything unlawful in the course that the officers took.  For completeness, however, I note the explanation given by Ms Penhaligon of her statement that it is “important that we keep moving quickly”, this likely being the statement that has driven the applicants’ perception of misconduct.  Ms Penhaligon’s explanation was that she assumed that as soon as Ms Slattery’s decision was set aside, Mrs Grass would take immediate steps to take the pledge in order to become an Australian citizen.  She said that in the event that Ms Parker did decide that the approval should be cancelled, such a decision would be of no effect if Mrs Grass had already become an Australian citizen.  I accept this as a legitimate concern in the circumstances. 

1. The second and third aspects of the claim against Ms Penhaligon appear to be based on the email exchange she had with Ms Parker on 26 March 2013 concerning a letter that had been received from Mrs Grass the day prior.  In that letter, Mrs Grass had requested an extension of time in which to provide further submissions on the issue of cancellation of her citizenship approval.  As may be recalled, Ms Parker asked Mr Vikneson and Ms Penhaligon for advice on the extent to which her response to that letter should be confined to her decision record.  Ms Penhaligon responded to say that she thought it best that the Litigation Section provide her with advice on the best way forward.  I cannot see that there was anything wrong with seeking such advice.  This conduct does not disclose any basis for a finding that Ms Penhaligon abused or misused a public power.  No denial of procedural fairness was established.

2. The final aspect of the claim against Ms Penhaligon appears to concern an internal email she sent on 10 September 2013 to another departmental officer, Ms Emma Davis, who is identified in that email by her signature as a Senior Legal Officer.  It appears that Ms Penhaligon’s email was at least partly responsive to an email from Ms Davis sent on 15 August 2013 seeking urgent instructions in response to a submission from Mr Grass (which appears to have been provided in the context of a challenge to Ms Parker’s cancellation decision).  Ms Davis wrote:

   I have this evening received a written submission from Mr Grass, attached below, asserting that between the taking effect of [J]udge Cameron’s orders setting aside Megan Slattery’s decision and the cancellation decision of Dana Parker the subject of these proceedings, Corazon Grass took the pledge of commitment …

   This is the first time this allegation has been advanced.  There is no evidence of it, and I believe it is highly unlikely.  If it were true, it is unclear why both AAT and FCA proceedings are being pursued.

3. Ms Penhaligon’s reply of 10 September 2013 was relevantly as follows (verbatim):

   I was away when this occurred and had not seen this previously.…

   Surely this is just another example of the fraud Mr and Mrs Grass are willing to perpetuate and is just another issue to present regarding Mrs Grass’s her character …

4. The applicants assert that the statement made by Ms Penhaligon in the above email is false.  However, this simply cannot ground an assertion of misfeasance.  The statement constitutes no more than a comment exchanged in internal email correspondence, with there being no evidence that it was ever taken into account by any person in exercising any public power in relation to Mrs Grass.

5. Each of the assertions of misfeasance against Ms Penhaligon must be rejected.  I am not satisfied that there is any aspect of Ms Penhaligon’s conduct which involved the exercise or purported exercise of a public power for the purposes of the tort.  Nor am I satisfied that Ms Penhaligon acted with malice, or that she at any time knowingly, or with reckless indifference, acted beyond power. 

6. It follows that the claim against Ms Penhaligon must be dismissed.

   The claim against Mr Burn

7. Mr Burn was the Director of the Citizenship Policy Section of the Department at all relevant times.

8. The grounds of the application against Mr Burn are set out at [43]-[58] of the amended statement of claim.  It is alleged that Mr Burn:

   (1)participated in an unlawful process between May 2009 and July 2010 for the purpose of cancelling Mrs Grass’ citizenship approval (at [45]);

   (2)advised officers that it was appropriate to continue with the unlawful process to cancel Mrs Grass’ citizenship approval (at 47]);

   (3)refused to correct Mrs Grass’ departmental records until directed to do so by the Director of the Office of the Australian Information Commissioner (at [49]);

   (4)supported the cancellation decision made on 5 July 2013, “ignoring damming [sic] reports that the cancellation decision was unlawful” (at [50]);

   (5)used the “full tax payer resources of the Agency” to prevent Mrs Grass’ application in the Federal Magistrates Court being heard in February 2013, by advising her that her claim was vexatious, out of time and had no prospects of success (at [51]);

   (6)collaborated with other citizenship officers to expedite the completion of the notice of intention to consider cancellation of Mrs Grass’ citizenship approval (at [52]);

   (7)consulted with other officers and external lawyers regarding Mrs Grass’ complaint of being denied procedural fairness (at [57]); and

   (8)refused to provide Mrs Grass with procedural fairness (at [58]).

9. The respondents emphasise that there is scant evidence before the Court of any involvement by Mr Burn in Mrs Grass’ case at the relevant times.  It appears that in February 2012 and July 2012, Mr Burn wrote to Mr Grass responding to his complaints about Ms Slattery’s cancellation decision.  In 2013, Mr Burn was copied as a recipient to emails between Ms Parker and Ms Penhaligon concerning procedural aspects of Ms Parker’s decision-making process.

10. I do not accept the complexion that is sought to be given to Mr Burn’s very limited conduct in this case.  The applicants have seized upon unexceptional correspondence as evidence that all persons involved, however marginally, in Mrs Grass’ case shared an intention to harm her.  No such intention has been established or even indicated to have existed.  Mr Burn’s conduct is consistent with an honest and unremarkable performance of his functions.  The applicants’ case discloses an unwillingness to accept that there could be any honest basis for those in the Department to have done otherwise than to accept Mrs Grass’ assertions at face value.

11. In any event, it cannot be accepted that any aspect of Mr Burn’s conduct involved the exercise or purported exercise of a public power.  Nor is there any basis for finding any requisite mental element of the tort.  This must foreclose any finding that Mr Burn committed the tort of misfeasance. 

12. It follows that the claim against Mr Burn must be dismissed.

    The claim against Mr Vikneson

13. At the relevant times, Mr Vikneson was a Senior Legal Officer working in the Legal Division of the Department.  He was the litigation case officer who had carriage of Mrs Grass’ application to the Federal Magistrates Court. 

14. The grounds of the application against Mr Vikneson are set out at [83]-[91] of the amended statement of claim.  It is alleged that he:

    (1)collaborated with other citizenship officers to expedite the completion of the notice of intention to consider cancellation of Mrs Grass’ citizenship approval (at [85]);

    (2)consulted with other officers and external solicitors regarding Mrs Grass’ complaint of having been denied procedural fairness (at [90]); and

    (3)refused to provide procedural fairness to Mrs Grass (at [91]).

15. The allegations appear to be based on the emails sent between Ms Penhaligon, Ms Parker and Mr Vikneson concerning Mrs Grass’ proceedings in the Federal Magistrates Court. 

16. As considered above, I regard the impugned communications as unexceptional and I reject the applicants’ allegation that there was anything unlawful in the course that the relevant officers took.  There is, in any event, no evidence that Mr Vikneson exercised any relevant public power for the purpose of the tort.  Nor is there any basis for finding any requisite mental element of the tort.

17. It follows that the claim against Mr Vikneson must be dismissed.

    The claim against Mr Dwyer

18. At the relevant times, Mr Dwyer was the Director of the Enforcement and Citizenship Litigation Section of the Department.  Like Mr Vikneson, he was a legal practitioner.

19. The grounds of the application against Mr Dwyer are set out at [94]-[101] of the amended statement of claim.  It is asserted that Mr Dwyer:

    (1)collaborated with other citizenship officers to expedite the completion of the notice of intention to consider cancellation of Mrs Grass’ citizenship approval (at [94]);

    (2)consulted with other officers and external lawyers regarding Mrs Grass’ complaint of being denied procedural fairness (at [100]); and

    (3)intentionally denied Mrs Grass procedural fairness (at [100]–[101]).

20. There appears to be very little basis for the claim against Mr Dwyer. He was copied as a recipient to some of the emails between Ms Penhaligon, Mr Vikneson and Ms Parker concerning Mrs Grass’ case. He also appears to have been referred to in an email sent on 7 February 2013 by Mr Vikneson (reproduced at [103] above), who wrote, “as we discussed at the last meeting in Peter’s office, I assume that arrangements have been put in place and processing is underway in regards to Mrs Grass’ citizenship application”.

21. In the circumstances, I am not satisfied that there is any evidence that Mr Dwyer had any real involvement in Mrs Grass’ case, let alone that there is any evidence to prove any of the elements of the tort. 

22. It follows that the claim against Mr Dwyer must be dismissed.

    The claim against the Commonwealth

23. As the applicants’ claims against each of the individual respondents must fail, there is no basis to find vicarious liability on the part of the Commonwealth.

24. It follows that the claim against the Commonwealth must be dismissed.

    CONCLUSION

25. I accept that the Department’s response to Mrs Grass’ case was frustrating for the applicants.  One point that Mr Grass has made repeatedly, which I believe goes to the heart of the applicants’ complaint, is that the applicants felt caught between the conflicting positions within the Department, having been told by one officer that the Department would use Mrs Grass’ later asserted date of birth, only for the truth of that date of birth to be challenged by other officers.  However, it is hardly a ground for misfeasance in public office that officers form different views in the course of performing independent statutory functions. 

26. Similarly, the fact alone that there has been criticism of the Department’s handling of Mrs Grass’ case does not compel or even suggest the conclusion that those involved committed the serious tort of misfeasance in public office.  There is a need to distinguish between conduct that might fall short of best practice, that being no part of the function of this Court to decide, at least in this case, and conduct that is tortious, being the allegation brought by the applicants.  The applicants were unwilling to accept that there could be any honest basis for those in the Department to have done anything other than to accept Mrs Grass’ assertions at face value.

27. For the reasons set out above, I am not satisfied that any of the respondents committed the tort of misfeasance in public office. 

28. There is no reason why costs should not follow the event.  Accordingly, the application must be dismissed with costs.

I certify that the preceding two hundred and seventy-seven (277) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.

Associate:

Dated:  13 November 2018

SCHEDULE OF PARTIES

NSD 1301 of 2016
Respondents
Fourth Respondent:	JIM CALLOW
Fifth Respondent:	DANA PARKER
Sixth Respondent:	HEATHER PENHALIGON
Seventh Respondent:	VIK VIKNESON
Eighth Respondent:	PETER DWYER