Rana v Australian Information Commissioner

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FEDERAL COURT OF AUSTRALIA

Rana v Australian Information Commissioner [2022] FCA 817

File number: SAD 47 of 2021
Judgment of: BANKS-SMITH J
Date of judgment: 15 July 2022
Catchwords: ADMINISTRATIVE LAW - judicial review - applicant made complaint to respondent about publication by search engines on web and blog sites of information said to be personal and sensitive - respondent dealt with complaints against different entities separately - complaint relating to Yahoo confined by subsequent communications to two URLs - where s 41(1)(da) of Privacy Act 1988 (Cth) provides that the respondent may decide not to investigate substance of a complaint if satisfied that investigation not warranted having regard to all the circumstances - delegate of respondent made decision under s 41(1)(da) not to investigate applicant’s complaint against Yahoo - where delegate ascertained URLs no longer appeared in Yahoo search results when search of URLs conducted using Yahoo - where delegate considered objectives of complaint met - where potential for applicant to pursue complaints against other entities remained - where potential for applicant to communicate with Yahoo about other URLs remained - where applicant sought judicial review of delegate's decision not to investigate further - whether relief should be granted under Administrative Decisions (Judicial Review) Act 1977 (Cth) or s 39B of the Judiciary Act 1903 (Cth) - whether failure to take into account relevant considerations - whether exercise of power uncertain - whether denial of procedural fairness - whether error by failure to seek out further information - application dismissed
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 5

Judiciary Act 1903 (Cth) s 39B

Privacy Act 1988 (Cth) ss 6, 36, 40, 41, Part V

Federal Court Rules 2011 (Cth) r 31.01
Cases cited:

Avon DownsPty Ltd v Commissioner of Taxation (1949) 78 CLR 353

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82

SZMJM v Minister for Immigration and Citizenship [2010] FCA 309

Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124
Division: General Division
Registry: South Australia
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 107
Date of hearing: Determined on the papers
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondent: Mr C Tran
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

SAD 47 of 2021
BETWEEN:

RANJIT SHAMSHER JUNG BAHADUR RANA

Applicant
AND:

AUSTRALIAN INFORMATION COMMISSIONER

Respondent

ORDER MADE BY:

BANKS-SMITH J

DATE OF ORDER:

15 JULY 2022

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant is to pay the respondent's costs to be assessed by a registrar of this Court if not agreed.

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


REASONS FOR JUDGMENT

BANKS-SMITH J:

  1. Part V of the Privacy Act 1988 (Cth) deals with complaints and investigations about acts or…

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Details
Case
[2022] FCA 817
Decision Date

CaseChat Overview and Summary

The case of Rana v Australian Information Commissioner involved Mr Rana, who had made a complaint to the Australian Information Commissioner regarding the publication of personal and sensitive information by search engines on web and blog sites. The Commissioner dealt with complaints against different entities separately, and the complaint relating to Yahoo was confined by subsequent communications to two specific URLs. The Commissioner's delegate decided not to investigate Mr Rana's complaint against Yahoo, based on Section 41(1)(da) of the Privacy Act 1988 (Cth), which allows the Commissioner to decide not to investigate a complaint if satisfied that an investigation is not warranted having regard to all the circumstances. Mr Rana sought judicial review of the delegate's decision not to investigate further.

The court had to decide whether the delegate's decision was an improper exercise of power and whether there was a breach of procedural fairness or error in the decision-making process. The court considered the grounds of review, including whether the delegate failed to take into account relevant considerations and whether the decision was uncertain. The court examined the relevant provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Judiciary Act 1903 (Cth).

The court found that the statute did not prescribe the specific matters that the decision maker must consider in assessing whether a state of satisfaction is reached. However, if there were errors in the process, such as considering extraneous or irrelevant considerations or excluding relevant considerations, it may indicate that the decision was not made in the manner required by the statute. The court also noted that even if it could not detect an error in the application of law or consideration of relevant matters, if the conclusion was wholly unreasonable, it could be inferred that an error had occurred.

The court concluded that the delegate's decision was not an improper exercise of power, as the delegate had considered the relevant matters and the decision was not uncertain or wholly unreasonable. The court found no breach of procedural fairness or error in the decision-making process. Therefore, the application for judicial review was dismissed.

The final orders of the court were that the application is dismissed and the applicant is to pay the respondent's costs to be assessed by a registrar of this Court if not agreed. Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application is dismissed.

2. The applicant is to pay the respondent's costs to be assessed by a registrar of this Court if not agreed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 5 of the ADJR Act sets out the grounds on which a person who is aggrieved by a decision to which that Act applies may apply to the Court for an order of review. It relevantly provides:Applications for review of decisions(1)A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the decision on any one or more of the following grounds:(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;(b)that procedures that were required by law to be observed in connection with the making of the decision were not observed;(c)that the person who purported to make the decision did not have jurisdiction to make the decision;(d)that the decision was not authorized by the enactment in pursuance of which it was purported to be made;(e)that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;(f)that the decision involved an error of law, whether or not the error appears on the record of the decision;(g)that the decision was induced or affected by fraud;(h)that there was no evidence or other material to justify the making of the decision;(j)that the decision was otherwise contrary to law.(2)The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:(a)taking an irrelevant consideration into account in the exercise of a power;(b)failing to take a relevant consideration into account in the exercise of a power;(c)an exercise of a power for a purpose other than a purpose for which the power is conferred;(d)an exercise of a discretionary power in bad faith;(e)an exercise of a personal discretionary power at the direction or behest of another person;(f)an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;(g)an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;(h)an exercise of a power in such a way that the result of the exercise of the power is uncertain; and(j)any other exercise of a power in a way that constitutes abuse of the power. Rule 31.01(3) of the Federal Court Rules provides that an application brought under the ADJR Act may be joined with an application for relief under s 39B of the Judiciary Act 1903 (Cth). Although Mr Rana's application does not refer to s 39B of the Judiciary Act, the Commissioner submitted that it had no difficulty with the review application proceeding as if Mr Rana also relies upon s 39B of the Judiciary Act. The judicial review jurisdiction conferred on the Federal Court by s 39B(1) of the Judiciary Act is, subject to presently immaterial exceptions, the same as that conferred on the High Court by s 75(v) of the Constitution. It is settled that, in the exercise of that jurisdiction, the High Court has a discretion as to whether or not to grant relief by way of a constitutional writ or ancillary remedy: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [5] (Gleeson CJ), [53]‑[54] (Gaudron and Gummow JJ), [148] (Kirby J), [172] (Hayne J), [217] (Callinan J).

Ratio Decidendi

Legal Principle Established

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' 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)Grounds of review Mr Rana by his originating application relies upon two grounds of review, which can be paraphrased as follows:(1) That the decision of the delegate of the Commissioner was an improper exercise of power because the delegate:(a)failed to take into account the 'relevant consideration' of the applicant's complaint about the Bing search engine;(b)failed to take into account the 'relevant consideration' of an agreement between Mr Rana and Microsoft made in July 2020 that involved the 'delisting' of certain websites;(c)failed to take into account the 'relevant consideration' of the improper implementation of 'the [Microsoft] agreement according to law'; and(d)exercised power in a way that the result of the exercise of power was uncertain, as URL 1 and URL 2 still appear in Yahoo, MSN and Bing search engines.(2) That there was no evidence or other material that justified the making of the delegate's decision to decline further investigation into Mr Rana's complaint, that Mr Rana had not 'been properly informed [regarding] the developments between Yahoo and Bing', and that some websites remained active.Some preliminary observations