Singh v Australian Information Commissioner

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FEDERAL COURT OF AUSTRALIA

Singh v Australian Information Commissioner [2024] FCA 1380

File number: VID 1091 of 2023
Judgment of: WHEELAHAN J
Date of judgment: 3 December 2024
Catchwords: ADMINISTRATIVE LAW — application for judicial review of a decision of a delegate of the Australian Information Commissioner – where the applicant had been held by the Department of Home Affairs in immigration detention – where the applicant complained to the Commissioner under the Privacy Act 1988 (Cth) that an officer of the Department had disclosed his personal information to another detainee – where a conciliation between the applicant and the Department was unsuccessful – where the applicant sought $182,153 in compensation – where the Commissioner’s delegate was not satisfied that the applicant’s personal information had been disclosed as alleged – where the Commissioner’s delegate accepted that the Department had breached Australian Privacy Principle 10 – where the Commissioner’s delegate decided not to investigate the applicant’s complaint further on the basis that further investigation was not warranted in all the circumstances (Privacy Act s 41(1)(da)) and that the Department had dealt with the complaint adequately (Privacy Act s 41(2)(a)) – Madzikanda v Australian Information Commissioner [2023] FCA 1445; 330 IR 387, applied – held: the applicant has not established any error in the decision of the Commissioner’s delegate – application dismissed.
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 8

Migration Act 1958 (Cth) s 501(2)

Privacy Act 1988 (Cth) ss 41(1)(da), 41(2)(a), sch 1 cll 6.1, 10.1, 10.2, 11.1, 13.1

Federal Court Rules 2011 (Cth)
Cases cited:

Madzikanda v Australian Information Commissioner [2023] FCA 1445; 330 IR 387

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

NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; 214 ALR 264

Papoutsakis v Australian Information Commissioner [2024] FCA 75

Remawi v Australian Information Commissioner [2024] FCA 1156

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 197
Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 59
Date of hearing: 19 and 22 November 2024
Counsel for the Applicant: The applicant appeared by video link
Counsel for the First Respondent: Ms K McInnes
Solicitor for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent: The second respondent filed a submitting notice

ORDERS

VID 1091 of 2023
BETWEEN:

GALJINDER SINGH

Applicant
AND:

AUSTRALIAN INFORMATION COMMISSIONER

First Respondent

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Second Respondent

ORDER MADE BY:

WHEELAHAN J

DATE OF ORDER:

3 DECEMBER 2024

THE COURT ORDERS THAT:

1.The application for judicial review is dismissed.

2.The applicant pay the first respondent’s costs of the proceeding.

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


REASONS FOR JUDGMENT

WHEELAHAN J:

  1. This is an application for judicial review of a decision of a delegate of the Australian Information Commissioner under ss 41(1)(da) and…

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Details
Case
[2024] FCA 1380
Decision Date

CaseChat Overview and Summary

The applicant, a citizen of the Republic of India who had been held in Australian immigration detention, brought an application for judicial review of a decision by the Australian Information Commissioner’s delegate not to investigate further his complaint that an officer of the Department of Home Affairs had disclosed his personal information to another detainee. The applicant sought $182,153 in compensation, alleging that the disclosure had occurred on 4 January 2021. The Commissioner’s delegate did not accept that the personal information had been disclosed as alleged but did accept that the Department had breached Australian Privacy Principle 10. The delegate decided not to investigate the complaint further on the basis that further investigation was not warranted in all the circumstances and that the Department had dealt with the complaint adequately.

The court had to determine whether the Commissioner’s delegate erred in deciding not to investigate the applicant’s complaint further. This required the court to consider whether the delegate breached any rules of natural justice, failed to have regard to relevant considerations, took into account irrelevant considerations, or exercised the discretionary powers in a way that was so unreasonable that no reasonable person could have so exercised the power. The court also had to consider whether the delegate had taken into account the applicant’s mental health conditions. The court found that the delegate’s decision was within the range of reasonable decisions open to the delegate and that the applicant had not established any particular error in the decision.

The court found that it was open to the Commissioner’s delegate to decide not to investigate the applicant’s complaint further, as the delegate was satisfied that further investigation was not warranted in all the circumstances and that the Department had dealt with the complaint adequately. The court noted that the decision of the delegate was within the range of reasonable decisions open to the delegate, and the applicant had not established any particular error in the decision. The court also found that the delegate had not breached any rule of natural justice, failed to have regard to any relevant consideration, taken into account any irrelevant consideration, or exercised the discretionary powers in a way that was so unreasonable that no reasonable person could have so exercised the power. The court dismissed the application for judicial review and ordered that the applicant pay the Commissioner’s costs of the proceeding.

Orders

Orders of the court

1. The application for judicial review is dismissed.

2. The applicant pay the first respondent’s costs of the proceeding.

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

Background

Background to the litigation

In the exercise of a broad discretion, the Commissioner’s delegate decided not to investigate the applicant’s complaint further on the basis that doing so was not warranted in all the circumstances, and because the delegate was satisfied that the Department had adequately dealt with the complaint.Background The applicant is a 36-year-old citizen of the Republic of India. The applicant entered Australia in 2006 on a student visa and thereafter resided in the Australian community on that visa and subsequent visas. On 31 October 2018, the applicant’s visa was cancelled under s 501(2) of the Migration Act 1958 (Cth) on the ground that he did not pass the character test. The applicant challenged this decision in the Administrative Appeals Tribunal and on judicial review, terminating in the decision of the Full Court in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 197, the upshot of which was that the applicant was unsuccessful in challenging the original cancellation decision. From 12 November 2018 until 2 August 2021, the applicant was held in immigration detention. On 2 August 2021, he was voluntarily removed from Australia to India. The present proceeding relates to events that are alleged to have occurred while the applicant was in immigration detention, and awaiting voluntary removal. On 4 January 2021, a status resolution officer of the Department of Home Affairs attempted to contact the applicant by telephone, but mistakenly used a number that belonged to another detainee who resided with the applicant at an immigration detention centre. While it is disputed what exactly transpired during the call, it is common ground that the other detainee received the call, and that eventually the status resolution officer realised that he was not speaking with the applicant. It is also common ground that the status resolution officer ended the call upon realising that he was not speaking with the applicant, and then telephoned the applicant. The applicant claims that the status resolution officer in question disclosed personal information of the applicant to the other detainee over the course of the telephone call on 4 January 2021. Specifically, the applicant claims that the status resolution officer disclosed that the applicant had officially asked to be voluntarily removed from Australia to India, and that the applicant had recently been unsuccessful in litigation before this Court relating to his migration status. On 13 January 2021, the applicant made a complaint to the Department concerning the claimed disclosure of his personal information. In a letter dated 29 January 2021, an officer of the Department responded to the applicant’s “feedback”, stating that the status resolution officer had attempted to telephone the applicant using a telephone number “that had been noted on our records to reach you on which you provided to your then [status resolution officer] on 01 October 2020”. The letter continued that the status resolution officer had then contacted the applicant “on the mobile phone number that the Department has had for you since 2017”. As for the applicant’s claim that the status resolution officer had disclosed his personal information to the other detainee, the letter stated: “I would like to assure you that this did not occur. Departmental Officers respect your privacy and abide by their obligations under the Privacy Act 1988.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As explained above, the Investigations Officer was acting as the administrative gatekeeper of the complaints process. After facilitating a conciliation, the Commissioner’s Office opened an investigation into the applicant’s complaint. The Commissioner’s Office requested and received evidence and submissions from the applicant and the Department. The Investigations Officer considered the evidence and submissions, and formed the view that further investigation was not warranted. It was open to the Investigations Officer to reach that conclusion.Conclusion For the foregoing reasons, the applicant has not established any reviewable error in the decision of the Investigations Officer, which was made as a delegate of the Commissioner. The proceeding will be dismissed. The applicant should pay the Commissioner’s costs of the proceeding.

Ratio Decidendi

Legal Principle Established

With respect to claim 3, the applicant submitted that the Investigations Officer had not taken into account his mental health conditions.Consideration The originating application for judicial review was in Form 66, a form provided under the Federal Court Rules 2011 (Cth) for use on applications made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The applicant’s amended originating application for judicial review is likewise in Form 66. By s 8 of the ADJR Act, this Court has jurisdiction to hear and determine the applicant’s application. At the first case management hearing in this proceeding on 28 March 2024, I raised with the applicant the fact that his grounds of review were too general. I explained to the applicant the nature of a proceeding under the ADJR Act. I stated that it was not like an appeal against the Commissioner’s decision, and that the applicant had to establish some particular error by reference to one of the grounds under s 5 of the ADJR Act. I also drew the parties’ attention to my decision in Madzikanda v Australian Information Commissioner [2023] FCA 1445; 330 IR 387 (Madzikanda), which had considered the Commissioner’s discretionary powers not to investigate complaints further. I ordered the applicant to file an amended application for judicial review, providing that it was to include particulars of any grounds of review that the applicant pursued. In his amended originating application for judicial review that is now before the Court, the applicant has not specified any particular grounds of review under s 5 of the ADJR Act. Nor are any grounds of review expressly specified in his submissions. However, in what follows I have had regard to whether there is any tenable claim on any of the grounds of review set out in s 5, and in particular, whether the Commissioner breached any rule of natural justice including the rules concerning actual and apprehended bias, failed to have regard to any relevant consideration, took into account any irrelevant consideration, or exercised the discretionary powers in a way that was so unreasonable that no reasonable person could have so exercised the power. In Madzikanda, I explained that an application for review under the ADJR Act is not concerned with the merits of an administrative decision, stating at [5] –Upon an application for relief under the ADJR Act, the Court is concerned with the legality of the Commissioner’s decision not to proceed further by reference to one or more of the grounds of review that are advanced, and not with the merits of the applicant’s underlying claims: Simjanovska v Department of Human Services [2019] FCA 499 at [108]-[117] (Perry J); Jones v Office of the Australian Information Commissioner [2014] FCA 285 at [19]-[22] (Greenwood J). The decision of the Commissioner under challenge is the decision pursuant to ss 41(1)(da) and 41(2)(a) of the Privacy Act not to investigate further the matters about which the applicant had complained.