Langley and Department of Immigration and Citizenship

[2008] AATA 705

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 705

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1805

GENERAL ADMINISTRATIVE DIVISION		)
Re		ELEANOR LANGLEY

Applicant

And DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date12 August 2008

PlaceSydney

Decision The decision under review is affirmed.

…………………[sgd]………………….
  Ms N Isenberg

Senior Member

CATCHWORDS

FREEDOM OF INFORMATION – Exempt Documents – whether documents are exempt from release – personal information of third parties contained in documents – release of documents would be unreasonable – decision under review affirmed.

Freedom of Information Act 1982 – ss 3(2), 4, 14, 23(1), 41(1)

Administrative Appeals Tribunal Act 1975 – s 25

Privacy Act 1988

Secretary, Department of Social Security v Guiseppe Alvaro (1994) 19 AAR 460

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307

Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429

Re Chandra v Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257

Searle Australia Pty Ltd v Public Interest Advocacy Centre and Anor (1992) 108 ALR 163

REASONS FOR DECISION

12 August 2008 Ms N Isenberg, Senior Member

INTRODUCTION

1.The Applicant, Ms Langley, by application under the Freedom of Information Act 1982 (“the Act”) dated 29 January 2008, sought access to documents held by the Department of Immigration and Citizenship.  The application sought access to:

From the personal information document database, the immigration and citizenship records, if any, with photos, for:

1. Rasiah Yuvarajan

2. Siva Ranjithan Yuvarajan (sic)

2.      The following relevant documents were identified:

§   Movement records of Siva Ranjitham Yuvarajan detailing entry and departure from Australia.

§   Client details of Rasiah Yuvarajan.

§   Movement records of Rasiah Yuvarajan detailing entry and departure from Australia.

3.The Respondent considered that the documents were exempt from release under s 41 of the Act as their release would be unreasonable because they contain personal information of third parties. Access was therefore rejected on initial application and also when the Department purported to conduct an internal review.

THE APPLICATION FOR REVIEW

4.Ms Langley wrote in her application for review:

1. If Dr Siva Yuvarajan is deceased, the decision to refuse access to protect his privacy (top page 2 of Decision) is unreasonable because it relies on an assumption that a disappeared person would not want his murder investigated with a view to correction where possible.

2.  If Dr Siva Yuvarajan is still alive, the decision is unreasonable because it relies on the assumption that he condones the impersonation of himself at Westmead Hospital and the falsification of his record in the NSW Medical Board’s register of medical practitioners, both of which I doubt based on one meeting with him.

3. If he is alive and does condone 2, IPPII(1)(e) of section 14 of the Privacy Act 1988 authorises section 14 of the FOI Act 1982 to apply.

IPPII(1)(e) The disclosure is reasonably necessary for the enforcement of the criminal law e.g. criminally improper prescription S.14 Nothing in this Act is intended to prevent --- agencies from --- giving access to documents (including exempt documents) otherwise than as required by this Act, where they can properly do so, ---.

4. Rasiah Yuvarajan (the first) would not consent to his personal information being released to me because that would undermine his assisting in concealing a disappearance, alleged murder and impersonation for unlawful purposes. So, again, IPII(1)(e) of section 14 of the Privacy Act 1988, as stated above, should authorise section 14 of the FOI Act 1982 to apply.

5. The decision (middle page 2) deals with an aspect of public interest that I did not raise and which is irrelevant to the case.  I rely on the aspect of public interest conveyed in paragraph 2 of my request for an internal review dated 27-2-08*, especially the sentence beginning, “There is reason to believe ---“.  A phone call to Ward C4AB today confirmed that the impersonator using the name Dr Rasiah Yuvarajan is still active in the ward intimidating and/or misleading other medical practitioners (I have observed this) and arranging for the ill treatment of patients for over-servicing and other purposes.

6.  IPPII (1)(e) “The disclosure is reasonably necessary --- for the protection of the public revenue eg. Unnecessary payments from Medicare for over-servicing, also authorises section 14 of the FOI Act 1982 to apply.

5.*On 27 February 2008, Ms Langley contended in paragraph 2 that:

In the attachment to my application headed “Privacy Act”, I alleged that  persons using the name Rasiah Yuvarajan, a doctor; that a(sic) person impersonating a registered medical practitioner at Westmead Hospital was prescribing drugs and blaming the effects of laser assault on patients as the effects of the drugs, practices which can be stretched out interminably covering up much suffering in the patients and generating inflated income from medical funds including the government, and from the patient. There is reason to believe that the Rasiah Yuvarajans sill continue this in Westmead Hospital, which constitutes a threat to the health, and in some cases the life, of the patient, which threat is serious and imminent in that it has started. If the records I have requested access to exist, and have not been corrupted they will confirm the impersonation, evidence for which so fair is comprised of personal observations by me.

ISSUE FOR THE TRIBUNAL

6.Are the documents exempt from release under s 41 of the Act: do they contain personal information about a person which it would be unreasonable to disclose?

PRELIMINARY ISSUE

7.It was brought to my attention by the solicitor for the Respondent that when, at Ms Langley’s request, the original decision was internally reviewed, the officer who conducted the review was not an authorised officer for the purposes of section 23(1) of the Act. I was referred to the decisions of Secretary, Department of Social Security v Guiseppe Alvaro (1994) 19 AAR 460 and Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307. In the latter case it was held that the fact that a decision is made by an administrator to take action which he has no power to take in a legally effective way, whether because there is no relevant power at all or because the official in any one of a number of ways had acted ultra vires of the power conferred, does not exclude that decision from review by the Tribunal. The word “decision” in s 25 of the Administrative Appeals Tribunal Act 1975 refers to a decision in fact made, regardless of whether or not it is a legally effective decision and there are no degrees of nullity.

8.On that basis I find the Tribunal has the jurisdiction to review the decision to exempt the documents notwithstanding that an earlier decision-maker, in the process of decision making, has acted in excess of authority.

EVIDENCE AND SUBMISSIONS

9.Ms Langley claimed that disclosure of the documents that she seeks is necessary for the enforcement of the criminal law. I understand that her main contention is that Dr Rasiah Yuvarajan has been murdered and that he is being impersonated and that while Dr Siva Yuvarajan is still alive he also is being impersonated. She referred to s 316 of the Crimes Act 1900 (NSW) (“Crimes Act”) which is to the effect that if a person knows or believes that the offence has been committed and he or she has information about the offence, it is an offence not to bring that information to the attention of a member of the Police Force or other appropriate authority.  She said she needed the information she has sought so that she could go to the Police. She has reported her concerns to the Health Care Complaints Commission and she tendered that organisation’s response to her complaint.

10.She referred to a letter tendered by the Respondent purporting to be from Dr Rasiah Yuvarajan and his wife Mrs Sivaranjitham Yuvarajan declining release of their personal information.  She said this demonstrated that the impersonators wait to hear what evidence is produced and adjust their position accordingly.  She said it was clear the document was 'fake' because they had not even signed their names, only initialled the letter, thereby preventing comparison with their earlier on-record signatures.  The solicitor for the Respondent said he had personally spoken with Dr Rasiah Yuvarajan who had told him Sivaranjitham Yuvarajan was his wife. 

11.Ms Langley tendered an extract from the electoral role which referred to a person by the name of Siva Ranjitham Yuvarajan.  Further, she said she had sought advice from a native Sri Lanken and a native Indian and had been told that ‘Siva’ is a man’s name, and that Sivaranjitham (one word) is a family name.  The Respondent’s solicitor said that the only name match on the Respondent’s records was that in respect of documents the subject of this application and that they related to a woman.  Ms Langley asserted that the records had been ‘corrupted’. 

12.She referred to provisions of the Privacy Act 1988 ("the Privacy Act") and her submission in her application for review that s 14 of the FOI Act 1982 authorised the release of information.

13.The Respondent’s submission in resisting the application is based on statutory grounds provided for in the Act and which are:

(i)that the information sought contains “personal information” of third parties;

(ii)that the release of “personal information” would be “unreasonable”; and

(iii)that the third parties object to the release of the information.

CONSIDERATION

14.The intention of the Act s 3(2) is to give access to the public as far as possible, but is to be subject to certain exemptions “...for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected…”

15.There was no dispute that the documents in the application were created by a government agency or that they contain personal information of third persons, namely Rasiah Yuvarajan and Siva Ranjithan Yuvarajan.  The documents do not relate to Ms Langley personall in any way.

16.The Department contends that the release of the documents would involve the unreasonable disclosure of personal information about Rasiah Yuvarajan and Siva Ranjithan Yuvarajan. 

17.s 41(1) of the Act provides that if release of the information would be an unreasonable disclosure of personal information about any person, then that information is exempt. The term “personal information” is defined in s 4 as meaning:

“….information or an opinion (including information forming part of a database), whether true or not, or whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.”

18.Whether release would be unreasonable, is to be assessed by reference to whether the public interest objective of the legislation would be properly upheld. Heerey J in Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 at 441, in relation to an earlier version of s 41 stated:

“…I do not think it is necessary in order to make out the s 41(1) exclusion that there is some particular unfairness, embarrassment or hardship which would inure to a person by reason of the disclosure.  Such matters, if present, would doubtless weigh in favour of exclusion.  But if the information disclosed were of no demonstrable relevance to the affairs of government and was likely to do no more than to excite or satisfy the curiosity of people about the person whose personal affairs were disclosed, I think disclosure would be unreasonable. ” 

19.Deputy President Hall in Re Chandra v Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 at N259 considered that other factors to be considered in determining whether disclosure of information requested would be “unreasonable” include:

§   The circumstances in which the information was obtained.

§   The likelihood of the information being information that the person concerned would not wish to have disclosed without consent.

§   Whether the information has any current relevance.

§   Whether it would enable an unreasonable invasion of privacy of third parties”.

20.I accept that the information contained in the documents which are within the scope of Ms Langley's application relate to Rasiah Yuvarajan and Siva Ranjithan Yuvarajan and are of a personal nature. The information concerns dealings that Rasiah Yuvarajan and Siva Ranjithan Yuvarajan have had with the Department.  

21.Rasiah Yuvarajan and Siva Ranjithan Yuvarajan have indicated to the Department that they do not wish to have information relating to them released to Ms Langley, although the authenticity of the letter is disputed by Ms Langley. I find no reason to doubt that it is genuine or that the Department’s records have been interfered with.  While I am not bound by the views of Rasiah Yuvarajan and Siva Ranjithan Yuvarajan I have taken their views into account: Searle Australia Pty Ltd v Public Interest Advocacy Centre and Anor (1992) 108 ALR 163.

22.Therefore, I find the documents are exempt under s 41 of the Act as release of those documents would be unreasonable.

23.There is no evidence that the disclosure of the documents to Ms Langley of the documents that she seeks is necessary for the enforcement of the criminal law. The proper authority responsible for the investigation of breaches of the criminal law is the Police Force. There is no impediment to any person alerting the Police to possible offences. It is then for the police to investigate. s 316 of the Crimes Act, to which Ms Langley referred, makes it an offence not to report to police in circumstances where a person knows or believes an offence to have been committed.

24.As to the contention about the Privacy Act, that Act is not relevant in considering exemptions set out in the FOI Act. The scope of the Privacy Act is to give protection for personal information that is handled by most federal and ACT Government agencies, private sector organisations which have an annual turnover of more than $3 million, and all health service providers (regardless of turnover).

25.As to s 14 of the FOI Act, the Respondent would be able to release document, including exempt documents if there is a requirement at law to do so. This may, for example, include providing information to Police, if appropriate.

DECISION

26.The decision under review is affirmed.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

Signed:....[sgd]..........................................................................

Associate

Date of Hearing  24 July 2008
Date of Decision  12 August 2008       
Appearance for the Applicant         Self-Represented
Solicitor for the Respondent          Mr A Chand, Clayton Utz Lawyers