FEDERAL COURT OF AUSTRALIA
Rana v Australian Information Commissioner [2023] FCAFC 17
Appeal from: Rana v Australian Information Commissioner [2022] FCA 817 File number: SAD 118 of 2022 Judgment of: BROMWICH, CHARLESWORTH AND ABRAHAM JJ Date of judgment: 23 February 2023 Catchwords: ADMINISTRATIVE LAW – appeal from orders by a single judge of the Court dismissing an application for judicial review of a decision by the delegate of the Australian Information Commissioner not to investigate a complaint by the appellant pursuant to s 41(1)(da) of the Privacy Act 1988 (Cth) – where the applicant made a complaint about publication by search engines on web and blog sites of information said to be personal and sensitive – whether the primary judge erred in finding that the evidence did not establish any denial of procedural fairness or any failure to comply with procedures applicable to the exercise of the power exercised by the delegate – Held: no error on the part of the primary judge identified, appeal dismissed with costs Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth)
s 5
Judiciary Act 1903 (Cth) s 39B
Privacy Act 1988 (Cth) ss 36(5), 41, 41(1)(da)
Federal Court Rules 2011 (Cth) r 31.01(3))
Cases cited: Rana v Australian Information Commissioner [2022] FCA 817 Division: General Division Registry: South Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 29 Date of hearing: 10 February 2023 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondent: Mr A Schatz Solicitor for the Respondent: Australian Government Solicitor ORDERS
SAD 118 of 2022 BETWEEN: RANJIT SHAMSHER JUNG BAHADUR RANA
Appellant
AND: AUSTRALIAN INFORMATION COMMISSIONER
Respondent
ORDER MADE BY:
BROMWICH, CHARLESWORTH AND ABRAHAM JJ
DATE OF ORDER:
23 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs, to be assessed by a registrar of this Court if not agreed, including upon a lump sum basis at the discretion of the registrar.
3.The costs before the primary judge may also be assessed upon a lump sum basis at the discretion of the registrar.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
This is an appeal from orders made by a judge of this Court, dismissing with costs an application for judicial review of a decision of a delegate of the respondent, the Australian Information Commissioner, to decline to investigate a complaint made by the appellant, Mr Ranjit Shamsher Jung Bahadur Rana: Rana v Australian Information Commissioner [2022] FCA 817. The basis for the delegate’s decision was that, pursuant to s 41(1)(da) of the Privacy Act 1988 (Cth), such an investigation was not warranted having regard to all the circumstances. While the originating application was brought under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), her Honour treated it as having also been brought under s 39B of the Judiciary Act 1903 (Cth).
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Details
- Case
- [2023] FCAFC 17
- Decision Date
CaseChat Overview and Summary
The appeal by Mr Rana against a decision by the Australian Information Commissioner's delegate not to investigate his complaint against Yahoo!7 Pty Ltd for alleged privacy breaches was dismissed by the Federal Court. The appeal arose from Mr Rana's complaint that Yahoo's search engine was publishing personal and sensitive information about him. The primary judge dismissed Mr Rana's application for judicial review, and he now appeals that decision. The legal issues before the court included whether the primary judge erred in finding that there was no denial of procedural fairness or failure to comply with applicable procedures in the exercise of the delegate's power.
The court found that the primary judge correctly applied the relevant legal principles in assessing the decision. The court considered the grounds of appeal, including whether the delegate had an obligation to disclose specific search terms used and whether the searches conducted were adequate. The court concluded that Mr Rana failed to demonstrate that the searches were inadequate or that URL 2 was still accessible via Yahoo's search engine, as he contended. The court also noted that the failure to consider a particular matter does not necessarily mean it was a relevant consideration for the decision maker to take into account, as determined by the statute.
The appeal was dismissed, and Mr Rana was ordered to pay the Commissioner's costs. The court found no error in the primary judge's decision, and thus the appeal was unsuccessful. The court also considered the costs before the primary judge, allowing for assessment on a lump sum basis at the discretion of the registrar.
The court found that the primary judge correctly applied the relevant legal principles in assessing the decision. The court considered the grounds of appeal, including whether the delegate had an obligation to disclose specific search terms used and whether the searches conducted were adequate. The court concluded that Mr Rana failed to demonstrate that the searches were inadequate or that URL 2 was still accessible via Yahoo's search engine, as he contended. The court also noted that the failure to consider a particular matter does not necessarily mean it was a relevant consideration for the decision maker to take into account, as determined by the statute.
The appeal was dismissed, and Mr Rana was ordered to pay the Commissioner's costs. The court found no error in the primary judge's decision, and thus the appeal was unsuccessful. The court also considered the costs before the primary judge, allowing for assessment on a lump sum basis at the discretion of the registrar.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs, to be assessed by a registrar of this Court if not agreed, including upon a lump sum basis at the discretion of the registrar.
3. The costs before the primary judge may also be assessed upon a lump sum basis at the discretion of the registrar.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the reasons below, the appeal must be dismissed.Background The original complaint by Mr Rana was made by email on 22 March 2017 to the Office of the Australian Information Commissioner (OAIC), under s 36 of the Privacy Act. Attached to the email was a document containing Mr Rana’s complaint. The complaint was expressed to be made against the well-known Google, Bing and Yahoo search engines, and alleged that those search engines breached his privacy by collecting and publishing what he described as his sensitive personal and health information. The complaint referred to eight website pages which could be accessed by conducting a search about him via those search engines, identifying by example search terms that could be used to go to those pages. Section 36(5) of the Privacy Act requires a complainant to specify the respondent to the complaint. The OAIC therefore treated the original complaint as being three separate complaints made against the three separate legal entities responsible for the three named search engines. The proceeding before the primary judge, and thus this appeal, concerns the complaint made against the legal entity apparently responsible for the Yahoo search engine in Australia, Yahoo!7 Pty Ltd. It is convenient to refer, as the primary judge did, to that entity simply as Yahoo. After communications over a number of years between the OAIC and Mr Rana, which also included communications with Yahoo and steps being taken by Yahoo to address aspects of the complaint, during which time the complaint was enlarged upon, the complaint was ultimately refined to be confined to the Yahoo search engine precluding a search leading to access to two specific URLs, or Universal Resource Locators, referred to as URL 1 and URL 2. At the appeal hearing, Mr Rana narrowed the issue to just URL 2, because by that time he accepted that the website previously locatable using URL 1 had been deleted. A URL is a specific and precise location on the internet which can be described by the use of just words, but also combinations of numbers, letters and special characters. It may be navigated to by the use of that precise URL, but also by using the URL as a search term typed into a search engine, or by more general search terms that produce results. The search results take the form of hyperlinks to webpages. Each URL is unique, but the information at a given location may not be unique in the sense that the same, or substantially the same, information may be found at another unique URL location. A change of a single letter, number or special character produces a different URL, but that different URL may still take a user to the same information on the internet because it is at both locations. Yahoo only purported to restrict access via its search engine to specific URLs that were provided to it by Mr Rana, not to other URLs that were even very similar, at which there was the same, or substantially the same, information to be found at the URLs provided by him. It was the precise URLs provided by Mr Rana to which access was restricted, and no others.Before the primary judge
Evidence
Evidence Before The Court
As noted above, because the Incorrect Principle Ground was confined to URL 1, which is no longer visible and therefore no longer available online through Yahoo’s search engine, Mr Rana no longer presses that appeal ground. In any event, the recitation by the primary judge of the relevant legal principles and her Honour’s analysis of the effect of s 41(1)(da) of the Privacy Act is entirely orthodox and we can discern no error. No Evidence Ground Mr Rana appeared on the face of this appeal ground to be contending that the delegate had an obligation to disclose the key search words used by the OAIC when using the Yahoo search engine and to raise issues about how more effective use might have been made of any search terms that were used. If the complaint was confined in this way, it had a problem with him being on notice of the searches that had been carried out on 17 February 2021, and not having sought those search terms before they were used again on 29 March 2021 as a final check before deciding not to continue the investigation against Yahoo on the basis that he had obtained the remedy he was seeking by the complaint. However, with the assistance of counsel for the Commissioner, especially by reference to the grounds of review and the numerous written submissions furnished by Mr Rana to her Honour (no oral hearing having taken place at his election), it became apparent that his real complaint was that the conclusion reached that (relevantly) URL 2 was not able to be accessed using the Yahoo search engine was not supported by evidence because searches carried out by the OAIC on 29 March 2021, the date of the decision, were inadequate and because, Mr Rana contended, URL 2 could in fact still be found using the Yahoo search engine. Mr Rana apparently accepted that this ground of appeal was accurately articulated by the Commissioner, whether characterised as a true no evidence ground, or as some kind of denial of procedural fairness in relation to the searches that had been done, or otherwise. That is, the substance of the complaint is that the delegate’s conclusion that URL 2 no longer appeared in Yahoo search results as being the essential reason for finding that the continuation of the investigation of the complaint made against Yahoo was not warranted, was vitiated in some way because URL 2 continued to appear in such Yahoo search results. Mr Rana contended that Yahoo had not prevented URL 2 being accessed using its search engine, so that Mr Rana’s complaint still needed to be investigated. Mr Rana endeavoured to demonstrate that the searches conducted by the OAIC on 29 March 2021 could not have been adequate for the conclusion reached about the Yahoo search engine not giving access to URL 2 by reference to material that was in the appeal book and before the primary judge, without success. He was able to point to a few such searches prior to 29 March 2021 (noting that the actions of Yahoo in removing access to a given URL usually take up to 30 days to take effect), and numerous URLs that were similar to, but not the same as, URL 2 after 29 March 2021. However, he was not able to prove accessibility to URL 2 via the Yahoo search engine at any time on or after 29 March 2021 on the evidence that was before the primary judge and before this Court on appeal.
Decision
Reasons for decision
Immediately prior to the above summary of the grounds of review, the primary judge described the applicable principles raised by those grounds as follows:Where decision maker must be satisfied[57] Pursuant to s 41(1)(da), it was open to the delegate, as the decision maker, to decide not to investigate, or not to investigate further, the act or practice the subject of Mr Rana's complaint if she was satisfied that an investigation, or further investigation, of the act or practice was not warranted having regard to all the circumstances.[58] The statute does not purport to prescribe the matters to which the decision maker must have regard in assessing whether the state of satisfaction is reached. The reference to ‘all the circumstances’ indicates the breadth of the matters which a decision maker may take into account. The question whether the decision maker is required to take specific considerations into account is determined by implication from the subject matter, scope and purpose of the Act. However, if there are errors in the process by which a state of satisfaction is reached, such as by considering extraneous or irrelevant considerations or by excluding relevant considerations, it may be that the state of mind has not been reached in the manner required by the statute. The requisite state of mind should be one which has been formed logically and rationally upon findings of fact. Further, even if it cannot be detected that an error has occurred in the application of law or consideration of the relevant matters, if the conclusion is one which is wholly unreasonable, it can, nevertheless, be inferred that error has occurred. Such principles are well recognised: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39‑40 (Mason J); and Avon DownsPty Ltd v Commissioner of Taxation (1949) 78 CLR 353 at 360 (Dixon J).Failure to take into account ‘relevant consideration’[59] Having regard to the nature of some of Mr Rana's grounds in this review application (particularly ground 1(a)), in addition to Peko-Wallsend can usefully be added the observations of McColl JA in Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 at [138] (Emmett AJA to similar effect and Macfarlan JA agreeing):[138] … [T]he fact that failure to take a relevant consideration into account in the exercise of a power is a ground of judicial review, does not, however, mean ‘that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account.’ ‘The fact that [a party] chooses to refer to particular matters does not convert them into relevant considerations in the administrative law sense from which other consequences might flow. That is determined by reference to the statute.’[139] That does not mean parties may not point to matters they contend were required to be taken into consideration. Nevertheless, even taking such submissions into account, where relevant considerations are not specified, ‘it is largely for the decision maker … to determine which matters the decision maker regards as relevant and the comparative importance to be accorded to such matters.’(citations omitted)
Ratio Decidendi
Legal Principle Established
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