Patel v Australian Information Commissioner
[2020] FCCA 3103
•14 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PATEL v AUSTRALIAN INFORMATION COMMISSIONER | [2020] FCCA 3103 |
| Catchwords: ADMINISTRATIVE LAW – Judicial review of a decision of the Australian Information Commissioner – refusal to undertake an Information Commissioner review – whether the process followed was procedurally unfair or was otherwise contrary to law considered – no reviewable legal error. |
| Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), s.3 Freedom of Information Act 1982 (Cth), ss.24A, 54W, 55B, 93A |
| Cases cited: Minister for Immigration v SZGUR (2011) 241 CLR 594 Ogawa v Australian Information Commissioner [2014] FCA 229 Patel v Australian Information Commissioner & Anor [2017] FCCA 1515 Powell v Australian Information Commissioner [2019] FCCA 39 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 |
| Applicant: | PRATHAMESH PRABHUDAS PATEL |
| Respondent: | AUSTRALIAN INFORMATION COMMISSIONER |
| File Number: | SYG 1076 of 2019 |
| Judgment of: | Judge Driver |
| Hearing dates: | 30 October 2019, 13 November 2020 |
| Date of last submission: | 9 December 2020 |
| Delivered at: | Sydney |
| Delivered on: | 14 December 2020 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondent: | Ms K Nguyen of Holding Redlich |
ORDERS
The application lodged on 23 April 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1076 of 2019
| PRATHAMESH PRABHUDAS PATEL |
Applicant
And
| AUSTRALIAN INFORMATION COMMISSIONER |
Respondent
REASONS FOR JUDGMENT
Introduction and background
The Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) provides for the judicial review by this Court and the Federal Court of many decisions of an administrative character. By an application under the ADJR Act signed on 17 April 2019 and lodged with the registry on 23 April 2019[1] the applicant (Mr Patel) seeks judicial review of a decision of the Australian Information Commissioner (Commissioner) made on 26 March 2019. It is common ground that Mr Patel does not require an extension of time for his application despite the fact that it also refers to decisions leading up to the decision subject to review made by Mr Alan Teves, as delegate of the Commissioner (the delegate).
[1] filed on 3 May 2019
Mr Patel asserts a breach of the rules of natural justice (procedural fairness) in connection with the making of the decision, including a refusal to hold a public hearing. Mr Patel also asserts that the decision is otherwise contrary to law because it was made to restrict the application of s.54W of the Freedom of Information Act 1982 (Cth) (FOI Act) for “an unknown reason to prevent the course of justice”.
The background to this matter is somewhat lengthy and there have been earlier proceedings in this Court.[2]
[2] Patel v Australian Information Commissioner & Anor [2017] FCCA 1515
Briefly, on 29 June 2001, Mr Patel, then a citizen of India, lodged an application for a student visa at the Australian High Commission in New Delhi (High Commission). He apparently sent a number of original documents, including his Indian passport to the High Commission.
On 20 September 2001, a senior migration officer at the High Commission wrote to Mr Patel to inform him that his visa application had been refused. Shortly afterwards, Mr Patel received an envelope from the High Commission which, he says, ought to have contained the original documents he lodged in support of his visa application, but it was empty.
Mr Patel states that he took a number of steps to recover his documents without success. Amongst other things, he sought assurances that his passport had not been misused. On 27 December 2001, Mr Patel emailed the International Office at Charles Sturt University concerning his missing documents. This email was forwarded to the Honourable Philip Ruddock MP, then Minister for Immigration and Multicultural Affairs. In this email, Mr Patel also alleged that there were corrupt staff members in the visa office of the High Commission.
Mr Patel was able to secure a new passport and, by July 2009 he had travelled to Australia as a permanent resident.
In or about 2014, Mr Patel was notified by Centrelink of a claim for repayment of benefits to which he was not entitled. Mr Patel says that he did not receive any benefits and suspects that he is a victim of identity theft. This stimulated him to make a request under the FOI Act on 1 February 2016 for documents relating to his 2001 student visa application. It transpired that an officer of the then Department of Immigration and Border Protection (Department) identified two departmental files which were no longer in existence. It appears that one file had been destroyed and the existence of the other could not be determined. That matter became the subject of the earlier proceedings in this Court.
The present proceedings came about in the following way.
On 1 August 2017, Mr Patel made a request for access to documents or information to the Department,[3] seeking:
a)a copy of an email sent by Mr Patel to the International Office of Charles Stuart University dated 27 December 2001, which was forwarded to Mr Ruddock; and
b)communication or advice received from Ms Sarah Fuller, Principal Migration Officer of the High Commission.
[3] The Department of Immigration and Border Protection is now known as the Department of Home Affairs
On 6 September 2017, Gurmeet Banga, a Freedom of Information (FOI) Officer of the Department refused Mr Patel’s request for access to the requested documents, as the documents could not be located (6 September Decision).
Application for Information Commissioner review
On 28 October 2017, Mr Patel applied to Commissioner for an Information Commissioner review (IC review) of the 6 September 2017 Decision.
On 24 November 2017, Carl English, an Assistant Review and Investigation Officer at the Office of the Australian Information Commissioner (OAIC), provided the Department with notice of Mr Patel’s IC review application and requested further information and documents from the Department relevant to the review.
On 29 November 2017, a FOI Officer of the Department acknowledged receipt of Mr English’s email
On 15 December 2017, the Department provided a response to the IC review notice.
On 15 February 2018, Mr Patel sought an update on his application for an IC review. On 20 February 2018, Mr English wrote to Mr Patel regarding an update on the IC review.
On 14 March 2018, Ms Vivian Kin Ching Yue, a FOI Review Adviser in the OAIC sent an email to Mr Patel informing him that she was the case officer allocated to the matter.
On 18 March 2018, Mr Patel sent an email to Ms Yue attaching a statutory declaration and a photocopy of an envelope which was purportedly received by Mr Patel from the High Commission.
On 15 August 2018, Ms Yue sent an email to Mr Patel attaching her preliminary view that the Department had taken all reasonable steps to conduct searches (15 August Letter). Ms Yue also invited Mr Patel to provide reasons to reconsider her preliminary view by 5 September 2018.
On 15 August 2018, Mr Patel sent Ms Yue an email requesting a copy of the response from the Department in relation to the complaint. On 16 August 2018, Ms Yue responded to that email providing Mr Patel with that information.
On 5 September 2018, Mr Patel sent Ms Yue an email that attached his submissions in regards to her 15 August Letter. Among other things, Mr Patel requested a hearing under s.55B of the FOI Act.
On 11 September 2018, Mr Patel sent Ms Yue an email with a link to an online article regarding the Honourable Peter Dutton MP, Minister for Home Affairs.
On 20 September 2018, Mr Patel sent an email with attachments to Louise Pratt, Senator for Western Australia, regarding Mr Dutton and copied that email to Ms Yue.
On 5 October 2018, Ms Yue wrote to the Department asking if the Department wanted to respond to Mr Patel’s submissions in support of his application for a hearing under the FOI Act.
On 24 and 25 October 2018, Mr Patel received email responses from the Department.
On 11 February 2019, Ms Yue received a further email from Mr Patel.
On 21 February 2019, Mr Patel re-sent his email of 11 February 2019 to an OAIC general email address.
On 7 March 2019, the delegate sent a letter to Mr Patel informing him that he was not satisfied there was a special reason or unusual circumstances to warrant a hearing.
On 26 March 2019, the delegate made a decision not to undertake an IC review under s.54W of the FOI Act. That is the decision the subject of this review (the Decision).
Evidence and submissions
In addition to his application, Mr Patel relies upon his affidavits filed on 3 May 2019, 22 July 2019, 16 October 2019, 28 October 2019 and 19 December 2019. He also relies upon an “application for reply” which is undated. That document is in substance a submission. I also treated as a submission a further affidavit by Mr Patel filed without leave on 9 December 2020.
In addition, at the trial on 13 November 2020, I received, subject to relevance, a bundle of documents which became Exhibit A1. This includes the visa refusal letter dated 20 September 2001, an envelope with an Indian postmark dated 15 October 2001, an undated letter to Mr Patel from Mr Abdul Rizvi of the Department and a letter from Mr Patel to the Department dated 14 June 2020. That last document post dates Mr Patel’s present application before the Court and indicates that the FOI decision now under review may not be the last.
In the absence of any other contradictor, the Commissioner sought and was granted leave to actively participate in the proceedings notwithstanding the Hardiman principle. The Commissioner relies upon the affidavit of Ms Yue made on 4 July 2019 and written submissions filed on 23 October 2019.
The hearing of this matter began on 30 October 2019 but was adjourned until April 2020 for procedural reasons. The hearing was further adjourned until 13 November 2020 due to the COVID-19 pandemic and Mr Patel’s wish to have a face to face hearing.
Consideration
As noted above, on 1 August 2017, Mr Patel made a request for documents or information from the Department in the following terms:
Please provide me
(1)A copy my email dated 27/12/2001 to the international office of Charles Stuart University which was forwarded to the Minister for Immigration and multicultural and indigenous affairs, the Hon Phillip Ruddock MP
(2)Communication or advice received from Ms Sarah Fuller Principle (sic) migration officer (at that time) in New Dehli high commission (communication is two way process so it is not necessary that all information can be in one departmental file) by the office of Minister.
If documents are not held by department please forward my request to concern agency which is responsible for record keeping of that after certain time. If documents are destroyed by government please provide me copy of record keeping requirement for above documents along with your decision.”
On 6 September 2017, the Department refused the request under s.24A of the FOI Act[4] (Department’s Decision).
[4] Tab 2 to the Yue Exhibit
On 28 October 2017, Mr Patel applied to the Commissioner for an IC review of the Department’s Decision[5].
[5] Tab 3 to the Yue Exhibit
On 5 October 2018, the Commissioner sought the Department’s views on the application for a hearing under s.55B of the FOI Act[6].
[6] Tab 17 to the Yue Exhibit
On 24 October 2018[7], the Department made submissions in respect of the application for a hearing under s.55B of the FOI Act.
[7] Tab 18 to the Yue Exhibit
On 7 March 2019, a delegate of the Commissioner decided not to conduct a hearing[8] under s.55B of the FOI Act on the basis that he was not satisfied that a special reason or usual circumstances warranted a hearing.
[8] Tab 21 to the Yue Exhibit at pages 229-230
On 26 March 2019, the delegate made the Decision[9].
[9] Tab 22 to the Yue Exhibit
It is not in dispute that the Decision was one in which the ADJR Act applies[10].
[10] Section 3 of the ADJR Act, definitions of “decision to which Act applies” and “enactment”
Grounds of review
Mr Patel’s first ground of review is that there was a breach of the rules of natural justice as the decision maker tried to refuse his application on the ground of lacking substance and invited him to submit his views on 15 May 2018. Mr Patel states that he made his submission on 5 September 2018, but it was not considered in the Decision.[11]
[11] Paragraph numbered 1 under “Details of Claim” in Originating Application for Judicial Review
Mr Patel’s second ground of review is that his request for a public hearing was refused.
Mr Patel’s further grounds of review are that the Commissioner is deliberately trying to restrict the FOI Act to s.54W of that Act for unknown reasons to prevent the course of justice and that the Commissioner considered that the FOI review guidelines were more important that the FOI Act itself.[12]
[12] Paragraph numbered 2 under “Details of Claim” in Originating Application for Judicial Review
Mr Patel also seeks to review the Decision on the basis that:
a)the decision maker “intentionally tried to avoid facts of my side and took decision in favour of the Department by limiting FOI Act only up to s.54W of the Act”[13]; and
b)the decision maker “failed to disclose in their decision, which sub-section of s.54W of the FOI Act is applicable in the final decision”[14].
[13] Grounds of Application 8 in Originating Application for Judicial Review
[14] Grounds of Application 9 in Originating Application for Judicial Review
Legislative scheme
Part VII of the FOI Act establishes a system for the review of Information Commissioner reviewable decisions by the Commissioner.
Section 54W of the FOI Act provides:
54W Decision to review — discretion not to review
The Information Commissioner may decide not to undertake an Information Commissioner review, or not to continue to undertake an Information Commissioner review, if:
(a) the Information Commissioner is satisfied of any of the following:
(i) the Information Commissioner review application is frivolous, vexatious, misconceived, lacking in substance or not made in good faith;
(ii) the Information Commissioner review applicant has failed to cooperate in progressing the Information Commissioner review application, or the Information Commissioner review, without reasonable excuse;
(iii) the Information Commissioner cannot contact the Information Commissioner review applicant after making reasonable attempts; or
(b) the Information Commissioner is satisfied that the interests of the administration of this Act make it desirable that the Information Commissioner reviewable decision be considered by the Tribunal; or
(c) the Information Commissioner review applicant fails to comply with a direction of the Information Commissioner.
Note 1: The Information Commissioner may make a decision under this section to review only part of an Information Commissioner reviewable decision (see section 54U).
Note 2: If the Information Commissioner makes a decision under paragraph (b), an application for review may be made to the Tribunal for review of the Information Commissioner reviewable decision (see section 57A).
Note 3: Division 1 of Part VIII sets out the circumstances in which a vexatious applicant declaration may be made in relation to a person. A declaration may permit the Information Commissioner to refuse to consider an Information Commissioner review application if the person makes the Information Commissioner review application under this section without the written permission of the Information Commissioner.
Hardiman principle
The Hardiman principle is a rule that, other than in exceptional cases, a tribunal should not take an active role in judicial review proceedings challenging its decisions. It derives from observations made by the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman.[15] Ordinarily, the decision-maker submits to such order that the Court makes.
[15] (1980) 144 CLR 13 at 35-36 (Gibbs, Stephen, Mason, Aickin and Wilson JJ)
In Ogawa v Australian Information Commissioner,[16] Greenwood J stated at [23]:
The first respondent contends, correctly in my view, that a number of authorities recognise that the application of the Hardiman principle requires some adapted flexibility to the particular circumstances which present themselves to the Court for consideration.
[16] [2014] FCA 229
In Powell v Australian Information Commissioner,[17] Judge Jarrett stated at [42]-[43]:
[17] [2019] FCCA 39
Whether or not it is correct for an administrative decision-maker to make submissions and for the Court to consider them, is dependent on the statutory scheme under analysis and the circumstances of each case: Geographical Indications Committee at 337; Ogawa at [23]; Commissioner of Police, New South Wales Police Force v Fine (2014) 87 NSWLR 1 at 18–19.
The matters that might be relevant to whether the Court should refuse to consider the submissions of the decision-maker, without intending to be exhaustive, will include:
a) the “exceptional” nature of the proceedings;
b) the adjudicative nature of the prior proceedings;
c) the absence of a contradictor; and
d) the nature of the decision-maker’s submissions.
In this case, the Commissioner submitted, and I accepted, that it is in the interest of justice for the Commissioner to make submissions and for the Court to consider them as:
a)there is no other contradictor; and
b)the nature of the submissions will be only directed to the relevant powers and procedures under statutory scheme or the construction of the FOI Act.
Onus of proof
There are numerous authorities stating that the onus of proof rests on the party seeking to establish jurisdictional error.[18] In that respect and with consideration to the rationale behind the Hardiman principle being the risk that a decision-maker will “endanger the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted”, the Commissioner has not addressed the alleged errors of law.
[18] e.g. Minister for Immigration v SZGUR (2011) 241 CLR 594 at [67] per Gummow J
Legislative scheme in relation to the public hearing
Section 55B of the FOI Act states:
55B Procedure in IC review—application for hearing
(1) At any time during an IC review, a review party may apply to the Information Commissioner requesting that the Information Commissioner hold a hearing for the purposes of the IC review.
(2) The Information Commissioner must notify the other review parties of the application.
(3) The Information Commissioner must:
(a) give all review parties a reasonable opportunity to make submissions on the application; and
(b)decide whether or not to hold a hearing.
Section 93A of the FOI Act provides:
93A Guidelines
(1) The Information Commissioner may, by instrument in writing, issue guidelines for the purposes of this Act.
Note: For variation and revocation of the instrument, see subsection 33(3) of the Acts Interpretation Act 1901.
(2) For the purposes of the performance of a function, or the exercise of a power, under this Act, regard must be had to any guidelines issued by the Information Commissioner under this section including, but not limited to, guidelines issued for the purposes of the following provisions:
(a) paragraph 9A(b) (information publication scheme);
(b) subsection 11B(5) (public interest factors);
(c) subsection 15(5A) (decisions on requests).
(3) Guidelines are not legislative instruments.
The Guidelines issued under s.93A of the FOI Act provides at [10.63]-[10.64] that:
Hearings are not intended to be a common part of Information Commissioner reviews, since they can increase contestability, introduce more formality to the process and prolong the matter. In general IC reviews will be conducted on the papers unless there are unusual circumstances to warrant a hearing.
However, a party may apply to the Information Commissioner for a hearing at any time before a decision is made (s 55B(1)). The Commissioner will only decide to hold a hearing if satisfied that there is a special reason to warrant a hearing.
As noted above, on 5 September 2018, Mr Patel sought a public hearing of the IC review under s.55B of the FOI Act.
At the trial, Mr Patel clarified that he was not seeking judicial review of the refusal to conduct a public hearing. He only relies upon that decision as a factual step leading to the Decision which is under review.
I accept that Mr Patel is sincere in his belief that there was some kind of malfeasance relating to his Indian passport at the High Commission in 2001. In his oral submissions, he tried to link that alleged malfeasance to the decisions of the Department on the first FOI request and the Decision on the present request. There is, however, no evidence to suggest, let alone establish that either decision was made for an improper purpose. Indeed, neither in his written or oral submissions was Mr Patel able to articulate clearly any asserted error of law.
Mr Patel states that the decision maker failed to disclose in the Decision, that s.54W of the FOI Act is applicable in the final decision. It is unclear what error of law (if any) is alleged. Whilst the specific sub-section was not expressly identified, the delegate stated that:
under s 54W of the FOI Act[19], the Information Commissioner may decide not to undertake a review or not to continue to undertake a review, if the Information Commissioner is satisfied that the IC review application is frivolous, vexatious, misconceived, lacking in substance or not made in good faith.
[19] Page 238 to the Yue Exhibit and s.54W(a)(i) of the FOI Act
The delegate then went on to state that:
I am satisfied that the Department has taken all reasonable steps to locate any documents which may fall within the scope of your FOI request, as required by s.24A of the FOI Act, and that the documents within the scope of the request either do not exist or cannot be found. On this basis, I am satisfied that your IC review application is lacking in substance.
While Mr Patel asserts procedural unfairness leading up to the decision under review, there is nothing to substantiate that assertion. It was not procedurally unfair for the Commissioner to decline to conduct a public hearing. Neither was it procedurally unfair for the Commissioner to decline to conduct a further review. There is nothing suggesting unfairness or irregularity in any of the antecedent steps taken by the OAIC.
Conclusion
I conclude that Mr Patel has failed to establish that the decision of the Commissioner is affected by any reviewable legal error. I will, accordingly, dismiss the application.
The Commissioner sought costs in a fixed amount in the event that Mr Patel was unsuccessful on his application. I will, nevertheless, hear the parties as to costs, noting that Mr Patel made no submissions in relation to costs and neither were any such submissions sought from him at the trial.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 14 December 2020
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