Leoncini and Migration Agents Registration Authority (Migration)

[2018] AATA 16

Leoncini and Migration Agents Registration Authority (Migration) [2018] AATA 16 (12 January 2018)

Division:GENERAL DIVISION

File Number(s):      2017/3947

Re:Beatriz Esther Leoncini

APPLICANT

AndMigration Agents Registration Authority

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:12 January 2018

Place:Sydney

The application to set aside the summons issued by the Tribunal on 11 September 2017 addressed to Ms Leoncini is refused.

.......................................[sgd].................................

J W Constance
Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – application to set aside summons – summons addressed to the Applicant – Applicant’s migration agent registration suspended – summons relates to files of Applicant’s clients – whether Australian Privacy Principles apply – whether provisions in the Migration Act 1958 apply – application to set aside summons refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 33(1AB)

Migration Act 1958 (Cth) ss 5A(1), 306AJ, 336A, 336E

Privacy Act 1988 (Cth) ss 6, 6C(1), Sch 1 principles 6.1(a) and 6.2(b)

REASONS FOR INTERLOCUTORY DECISION

Deputy President J W Constance

12 January 2018

INTRODUCTION

1. On 6 July 2017 Ms Leoncini applied to the Tribunal to review a decision of the Authority to suspend her registration as a migration agent. This application has not been finalised.

2. The Statement of Reasons for the decision provided by the Authority disclosed that the decision-maker took into account several complaints made by former clients of Ms Leoncini.

3. On 11 September 2017, at the request of the Authority’s Solicitors, the Tribunal issued a summons to Ms Leoncini to produce the files held by her in relation to the complainants referred to in the Statement of Reasons.

4. Ms Leoncini has applied to the Tribunal to set aside the summons. For the reasons which follow this application will be refused.  This means that Ms Leoncini must produce to the Tribunal the documents referred to in the summons.

5. Following oral submissions made at the hearing of the application the parties provided written submissions.  In my view the submissions made on behalf of the Authority provide concise and accurate reasons why Ms Leoncini’s application should be refused.  I acknowledge that I have drawn on these submissions in preparing these reasons for my decision.

   THE ARGUMENT ON BEHALF OF MS LEONCINI IN FAVOUR OF SETTING ASIDE THE SUMMONS

6. Ms Leoncini disputes that the Authority has provided valid consents of the complainants to the release of their individual files. For the purposes of this application, I am prepared to accept that this is so.

7. It was argued on behalf of Ms Leoncini that without the written authority of the individual involved, the disclosure of that person’s information contained in the file held by her would be in breach of the provisions of the Migration Act 1958 (Cth) and the Privacy Act 1988 (Cth).

8. Counsel for Ms Leoncini referred me to Australian Privacy Principle 6.1(a)[1] which provides in part:

   6.1 If an APP entity holds personal information about an individual that was collected for a particular purpose (the primary purpose), the entity must not use or disclose the information for another purpose (the secondary purpose) unless:

   (a)the individual has consented to the use or disclosure of the information;…

   [1] Privacy Act Schedule 1.

9. Counsel also referred me to section 336E of the Migration Act which restricts the disclosure of “identifying information” contained in section 336E.

   DISCUSSION

   The application of Privacy Principle 6.1(a)

10. The Principle relied upon by Ms Leoncini applies only to “an APP entity”, which is defined in section 6 of the Act to mean “an agency or organisation”. Both “agency” and “organisation” are also defined in the Act, in section 6 and subsection 6C(1) respectively. Copies of the relevant provisions appear in the schedule to these reasons.

11. It is clear that Ms Leoncini is not an “agency” – the definition refers to the Minister, the Department and various government-related bodies.

12. “Organisation” does not include certain small business operators, in particular those with an annual turnover of less than $3 million.  There is no evidence to suggest that Ms Leoncini is, or claims to be, a small business operator to which the Principle applies.

13. In any event, even if the Principle did apply to Ms Leoncini, it would not prevent production of documents under a summons issued by this Tribunal.   Principle 6.2(b) provides:

    6.2This subclause applies in relation to the use or disclosure of personal information about an individual if:

    …

    (b)the use or disclosure of the information is required or authorised by or under an Australian law or a court/tribunal order; …

14. I am satisfied that Privacy Principle 6.1(a) does not apply to prevent Ms Leoncini producing the files sought in the summons.

    The application of the Migration Act 1958

15. Counsel for Ms Leoncini also argued that information contained in the files may be “identifying information” within the meaning of the Migration Act.

16. “Identifying information” is defined in section 336A of the Migration Act to include:

    (a)any personal identifier obtained by the Department for one or more of the purposes referred to in subsection 5A(3);

17. “Personal identifier” is defined in subsection 5A(1):

    personal identifier means any of the following (including any of the following in digital form):

    (a)fingerprints or handprints of a person (including those taken using paper and ink or digital livescanning technologies);

    (b)a measurement of a person’s height and weight;

    (c)a photograph or other image of a person’s face and shoulders;

    (d)an audio or a video recording of a person (other than a video recording under section 261AJ);

    (e)an iris scan;

    (f)a person’s signature;

    (g)any other identifier prescribed by the regulations, other than an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914.

18. The disclosure of “identifying information” may be prohibited in certain circumstances.  Subsection 336E(1) of the Act provides:

    A person commits an offence if:

    (a)the person’s conduct causes disclosure of identifying information; and

    (b)the disclosure is not a permitted disclosure.

19. Subsection 336E(2) provides, in part:

    A permitted disclosure is a disclosure that:

    …………

    (ga) is for the purpose of facilitating or expediting the exercise of powers, or performance of functions, of the Migration Agents Registration Authority …. .

20. One of the functions of the Authority is to respond to an application made to this Tribunal to review a decision made by it suspending the registration of a migration agent. Section 306AJ of the Migration Act permits an agent to apply to the Tribunal in these circumstances. Subsection 33(1AB) of the Administrative Appeals Tribunal Act 1975 (Cth) requires the Authority to use its best endeavours to assist the Tribunal. As the substance of the complaints and the veracity of the complainants are likely to be issues in this matter, I am satisfied that the disclosure of the contents of the complainants’ files would be a “permitted disclosure” under subsection 336E(2) of the Migration Act.

    CONCLUSION

21. The application to set aside the summons issued by the Tribunal on 11 September 2017 addressed to Ms Leoncini will be refused.

I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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Associate

Dated: 12 January 2018

Date(s) of hearing:	6 December 2017
Date final submissions received:	15 December 2017
Solicitors for the Applicant:	A Joel, Adrian Joel & Co.
Solicitors for the Respondent:	A Keevers, Sparke Helmore

SCHEDULE

Extracts from the Privacy Act 1988 (Cth):

6  Interpretation

…

agency means:

(a)a Minister; or

(b)a Department; or

(c)a body (whether incorporated or not), or a tribunal, established or appointed for a public purpose by or under a Commonwealth enactment, not being:

(i)     an incorporated company, society or association; or

(ii) an organisation that is registered under the Fair Work (Registered Organisations) Act 2009 or a branch of such an organisation; or

(d)a body established or appointed by the Governor‑General, or by a Minister, otherwise than by or under a Commonwealth enactment; or

(e)a person holding or performing the duties of an office established by or under, or an appointment made under, a Commonwealth enactment, other than a person who, by virtue of holding that office, is the Secretary of a Department; or

(f)a person holding or performing the duties of an appointment, being an appointment made by the Governor‑General, or by a Minister, otherwise than under a Commonwealth enactment; or

(g)a federal court; or

(h)the Australian Federal Police; or

(ha)   a Norfolk Island agency; or

(k)an eligible hearing service provider; or

(l)the service operator under the Healthcare Identifiers Act 2010.

…

6C  Organisations

What is an organisation?

(1)       In this Act:

organisation means:

(a)an individual; or

(b)a body corporate; or

(c)a partnership; or

(d)any other unincorporated association; or

(e)a trust;

that is not a small business operator, a registered political party, an agency, a State or Territory authority or a prescribed instrumentality of a State or Territory.

Note 1: Under section 187LA of the Telecommunications (Interception and Access) Act 1979, service providers are, in relation to their activities relating to retained data, treated as organisations for the purposes of this Act.

Note: 2: Regulations may prescribe an instrumentality by reference to one or more classes of instrumentality. See subsection 13(3) of the Legislation Act 2003.

Example: Regulations may prescribe an instrumentality of a State or Territory that is an incorporated company, society or association and therefore not a State or Territory authority.

…