Applicant A194 of 2003 v Minister for Immigration & Multicultural and... [2004] FCAFC 292 | Case summary

REASONS FOR DECISION Introduction 1 NZ is a tenant of the Department of Housing (the Department). She suffers from anxiety based social phobia and agoraphobia. She rarely leaves her home and is unable to attend hearings in person. During a period of about three months from June 2005 to August 2005, NZ wrote several letters to the Department with headings including the words "complaint", "Privacy Act" and "internal review". The main subject of complaint in those letters was an allegation that property belonging to another tenant was obstructing her access to common areas. Other matters complained about in this correspondence included allegations that: (a) the Department had rejected her request for a disabled parking space; (b) conduct towards her from other residents in relation to Apprehended Violence Orders had breached her privacy; (c) electrical work had not been properly completed; and (d) her bath had not been replaced. 2 The Department did not conduct an internal review under the Personal Information Protection Act 1998 (Privacy Act) of any of the conduct NZ referred to in her correspondence. NZ then applied to the Tribunal for an external review of the conduct of the Department. She attached to that application copies of letters she had sent to the Department dated 24 June 2005 and 7 August 2005. NZ then filed further submissions and documents with the Tribunal on 31 August and 2 September 2005. On 12 September the Tribunal held a planning meeting in which NZ participated by phone. At that meeting, NZ was unable to identify, to the satisfaction of the Tribunal, a letter to the Department which constituted an application for internal review under the Privacy Act. Since a valid application for internal review is a pre-requisite to making an application to the Tribunal, the Tribunal decided, on 16 September 2005, to dismiss NZ's application. Essentially, the Tribunal said that it did not have jurisdiction to hear NZ's application because her applications to the Department for internal review did not comply with the requirements of the Privacy Act. 3 An appeal may be made on any question of law: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113(2)(a). The Appeal Panel needs to give permission before an appeal can extend to a review of the merits of the Tribunal's decision: ADT Act, s 113(2)(b). NZ requested that the Appeal Panel determine the appeal "on the papers" pursuant to s 76 of the ADT Act. Each party filed and served written submissions. In our view the matter can be adequately determined in the absence of the parties. Procedural background 4 The procedural background to this matter is set out by the Tribunal at [3] of its reasons for decision: The present application was listed for a planning meeting on 12 September 2005. The question was raised as to whether the Department had been given an opportunity to consider, by way of internal review, the concerns the subject of the application. The applicant was unable to identify from among her material, to the satisfaction of the Tribunal, a communication in the nature of an application for internal review. The Tribunal asked the Department if it could check its files and see whether an application for internal review might have been filed. The Tribunal listed the application for hearing on 16 September 2005 to consider its dismissal. The Department filed an affidavit from Mr Valacos, solicitor with the Department, sworn 15 September 2005 (Ex A). NZ's 9 June letter 5 The Tribunal went on to say that NZ had identified a letter of 9 June 2005 to the Department as being her application for internal review. Mr Valacos' affidavit attached that letter as well as a letter to similar effect dated 7 August 2005. The relevant parts of the 9 June letter, which NZ says was a valid request to the Department for an internal review of conduct, reads as follows: Re: Privacy Act 1998 Complaint I request you please give me internal review related to the specific issue re: communal area storing up cluttering rubbish in the actual area which prevents me to free (sic) access the area outside [my neighbour's] residence 37/242 for my serious illness which I need to do to get cured of social phobia and agoraphobia. Re: Please note this compliant also includes the false AVO conspiracy made against me by your clients using the communal area illegal mail boxes such as AVO's transcripts, purgery (sic) to courts, false letters assaults to me at my home, approaches, infringements. Re: It also includes the disability parking infringing letters from your DOH officers to me at my home with false complaints, intimidating and threaten (sic) upsetting false claims on it. Such as, infringing false claims on letters from Estella Yuen May 2002 with my personal privacy and details on it upsetting me and threatening my tenancy if I use disability parking. When I suffer illness entitled to have disability park (sic) it is intimidating. Infringing to target me from everyone else in the block and cause me crying, shaking, fear and dread making. Tribunal's reasoning 6 The Tribunal based its decision on the provisions of s 52 and 53 of the Privacy Act. Section 52 and s 53(1), (2) and (3) provide that: 52 Application of Part (1) This Part applies to the following conduct: (a) the contravention by a public sector agency of an information protection principle that applies to the agency, (b) the contravention by a public sector agency of a privacy code of practice that applies to the agency, (c) the disclosure by a public sector agency of personal information kept in a public register. (2) A reference in this Part to conduct includes a reference to alleged conduct. (3) This Part does not apply to any conduct that occurred before the commencement of this Part. (4) Section 53 (Internal reviews) of the Administrative Decisions Tribunal Act 1997 does not apply to or in respect of conduct to which this Part applies. 53 Internal review by public sector agencies (1) A person ( "the applicant") who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct. (2) The review is to be undertaken by the public sector agency concerned. (3) An application for such a review must: (a) be in writing, and (b) be addressed to the public sector agency concerned, and (c) specify an address in Australia to which a notice under subsection (8) may be sent, and (d) be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application, and (e) comply with such other requirements as may be prescribed by the regulations. 7 The Tribunal briefly summarised the meaning of these provisions at [8] to [10] of its Reasons for Decision: 8 The State legislation that is relevant to today's proceedings has to do with information privacy. More particularly s 53 provides aggrieved persons with a right to obtain internal review of certain conduct. The application must relate to the 'conduct' of a public sector agency. The term 'conduct' is in effect defined in s 52 as the contravention by a public sector agency of the information protection principle that applies to the agency. 9 So there must be some apparent connection between the conduct identified and some possible contravention or breach of one of the information protection principles. 10 The Tribunal has said in other cases that it is not necessary for the applicant for internal review to be particularly precise about exactly what information protection principle is in issue. But the application for internal review does have to raise conduct on the part of the agency which might reasonably be able to be seen to have something to do with the information protection principles and their application. 8 NZ misinterpreted what the Tribunal said in the first sentence of [10]. She said that because the Tribunal said that there was no need to be particularly precise, it should not have dismissed her application on the basis that it was not precise. The Tribunal said that it was not necessary to be particularly precise about exactly what information protection principle is in issue. That is not the same as saying that an applicant does not have to be particularly precise about the alleged conduct that is in breach of an information protection principle. An applicant must identify the conduct complained of, but it is not necessary to identify the precise contravention on which he or she relies under s 52(1): GL v Director General, Department of Education and Training [2003] NSWADT 166 at [26]; JD v Director General, NSW Department of Health [2004] NSWADT 7 at [38]. 9 The Tribunal correctly concluded that compliance with s 53 of the Privacy Act is a necessary pre-condition to trigger the jurisdiction of the Tribunal: Y v Director General, Department of Education & Training [2001] NSWADT 149 and PC v University of New South Wales (GD) [2005] NSWADTAP 72 (20 December 2005) at [21]. The Appeal Panel said in GA v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 38 (21 July 2005) at [10] that: The making of a competent application for review is an essential preliminary to the Tribunal exercising jurisdiction. The application can only be competent if the applicant has previously made a valid application for internal review. The respondent can properly object to jurisdiction on the basis that there has not been an application for internal review. Accordingly, when examining the circumstances relating to the making of the application for internal review, the Tribunal is engaged in the exercise of ascertaining its jurisdiction. Its conclusion of fact on that matter is jurisdictional; and therefore reviewable in an error of law appeal. 10 The next question for the Tribunal was whether the letter of 9 June 2005 met the requirements of s 53 of the Privacy Act. NZ did not say in her June 2005 letter or any of her other correspondence to the Department, whether she was alleging a breach of an information protection principle, a privacy code of practice or the disclosure by a public sector agency of personal information kept in a public register. The information protection principles are set out in Part 2, Division 1 of the Privacy Act. Each of the principles relates to the manner in which the agency is permitted to deal with "personal information". That term is defined in s 4 of the Privacy Act to mean: . . . information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion. 11 The Tribunal correctly concluded that most of the matters raised in the 9 June letter bore no relationship to the subject matter of the Privacy Act. It is apparent that storing property in a common area, making false AVO applications, using a mail box illegally, perjury, writing false letters, assault and refusal to allow the use of a disabled parking area do not, on their face, relate in any way to how the Department dealt with personal information about NZ. The Tribunal noted at [7], that: They could be matters, though, that would be understood by some as involving privacy issues using the broad or common understanding of that term that is often found in the community. A number of the issues raised have to do with people engaging in activities that might be described as ones relating to intrusion into the personal space of NZ. Those kinds of claims are sometimes described as 'territorial privacy' claims. 12 NZ's submissions to the Appeal Panel disclose that she misunderstood this paragraph. She interpreted it to mean that a breach of "territorial privacy" does come within the Privacy Act. That is not what the Tribunal said. 13 The only minor doubt the Tribunal had about whether it had jurisdiction, related to the allegation in relation to a letter from Ms Yuen. The Tribunal said at [12] that: There is insufficient clarity there to indicate what it might be, more specifically, about Estella Yuen's communications that involves any transgression of the privacy legislation. There is other broad language of that character through the document. Grounds of appeal 14 NZ grounds of appeal can be summarised as follows: (a) the Tribunal erred by not taking into account the fact that her psychological illness prevented her from complying with the requirements of the Privacy Act ; (b) the Tribunal erred by denying her procedural fairness because she was not served with submissions or "evidences" of C Valacos; and (c) the Tribunal denied her procedural fairness by not giving her an opportunity to provide submissions in support of the validity of her application for internal review. Not taking into account psychological illness 15 NZ asked the Appeal Panel to take into account the fact that her psychological disability is causing her problems in complying with the requirements for a request for internal review under the Privacy Act. She said that: The Tribunal erred by not giving enough importance to the role of my psychological illness which caused me failure to identify my internal review. . . . the review would have been granted if my illness had been considered and taken into account as being the reason why I could not do it . . . 16 It is not clear from NZ's submissions how she says the Tribunal should have taken account of her psychological disability. If she is suggesting that the Tribunal should have found that it had jurisdiction to hear and determine her application when in fact it did not have jurisdiction to do so, that submission is untenable. The Tribunal has no power to waive the requirements of the Privacy Act for people with disabilities. The nature and extent of an applicant's disability is irrelevant to the question of whether the Tribunal has jurisdiction to entertain an application made by such a person. 17 Although the Tribunal cannot waive the requirements that trigger its jurisdiction, the Tribunal is obliged, "if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings": ADT Act, s 73(4)(b). The Tribunal complied with this obligation by putting NZ on notice that she needed to identify the correspondence that constituted an application for internal review. The Tribunal also asked the Department at the planning meeting on 12 September 2005, to check its files and see whether an application for internal review might have been made. It follows that this ground of appeal has not been made out. Breach of procedural fairness - not served with any submissions or with the affidavit of Mr Valacos 18 NZ's next ground of appeal is that the Tribunal denied her procedural fairness because she did not receive a copy of the Department's submissions or the "evidences" of Mr Valacos. It is apparent from NZ's submissions that she is referring to the affidavit filed by Mr Valacos on 16 September 2005 and possibly to the fact that she did not receive any written submissions from the Department prior to the hearing. 19 The Tribunal is required to comply with rules of procedural fairness: ADT Act, s 73(2). The hearing rule of procedural fairness requires that a decision maker give a person an adequate opportunity to be heard before making a decision affecting their interests. (Kioa v West (1985) 159 CLR 550.) The ADT Act clarifies and expands on the hearing rule in s 73(4)(c): The Tribunal is to take such measures as are reasonably practicable: (c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings. 20 NZ did not attend the hearing, either in person or by phone. The following extract from the transcript explains what took place. O'Connor P: I'll just note for the record that this matter was set down for 9.15, Mr Valacos is here from the Department of Housing and the applicant, [NZ], was advised last week at a planning meeting that her matter would be listed for dismissal this morning, having regard to a submission from the Department of Housing that there'd never been any application for internal review of the conduct that's alleged to constitute a breach of the Privacy and Personal Information Protection Act. We've attempted this morning to contact [NZ] by telephone. I note in that regard that [NZ] has a condition known as agoraphobia which prevents her from leaving her home and so over several matters on many occasions the Tribunal has dealt with [NZ] by telephone. So I'll treat our inability to contact her this morning as amounting to a non-appearance by her today. . . . VALACOS: . . . I have prepared a short affidavit which explains the present circumstances. I think you may recall on Monday I indicated I would undertake fresh searches to see if there was anything in the nature of an internal review and I issued a document which is included in my affidavit and there was indeed a request on 9 June for an internal review, however, I do not think that it in any way is a valid internal review as the subject matter has really nothing to do with privacy and I've annexed that document to my affidavit and I have sought also to serve that affidavit on [NZ] by fax yesterday afternoon. There were two attempts, both unsuccessful. There was telephone contact with her, she said "Fax it to Peter Baker" and we did that and I should seek to file that affidavit in Court and rely on it on this application. HIS HONOUR: All right then thank you, I'll read that. EXHIBIT #A AFFIDAVIT TENDERED, ADMITTED WITHOUT OBJECTION 21 The Tribunal notified NZ of the time and date of the hearing and acceded to her request to participate by phone. The Tribunal attempted to contact her by phone on two occasions after the hearing was due to commence, but NZ did not answer her phone. In those circumstances the Tribunal, quite correctly, treated NZ as not appearing. In addition, the Department made reasonable efforts to serve NZ with the affidavit of Mr Valacos by complying with her request to send it by facsimile to Peter Baker. NZ has not given any explanation to the Appeal Panel as to why she did not answer the phone or why she did not receive a copy of the affidavit the Department faxed to her and to her nominee, Mr Baker. In particular, she has not submitted that her failure to participate in the hearing was as a result of her psychological illness. 22 Even if NZ was under some misapprehension about the hearing date, mistakes or omissions by a party will not generally amount to a breach of procedural fairness by the Tribunal. In Applicant A194 of 2003 v Minister for Immigration & Multicultural and Aboriginal Affairs [2004] FCAFC 292; the Federal Court (Cooper, Marshall and Mansfield JJ) found there was no breach of procedural fairness where a female asylum-seeker was provided with a "reasonable opportunity" to present certain aspects of her case but declined to do so. Again, in S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 451, Madgwick J found there could be no claim to a breach of natural justice where an asylum-seeker indicated to the Refugee Review Tribunal that he did not wish to give oral evidence but would like the Tribunal to make a decision "on the papers". In Freeman v Health Insurance Commission, [2004] FCAFC 335 the Federal Court said at [52]: In the context of administrative decision-making there would not appear to be support in Australia for the view that problems which arise in the conduct of the case of the person to be the subject of the decision, through their mistaken view or that of their legal advisers, could amount to procedural unfairness. 23 We are satisfied that the Tribunal complied with its obligations to afford NZ procedural fairness and with its statutory duties under s 73(4)(c) of the ADT Act. Breach of procedural fairness - not being given an opportunity to provide submissions in support of the validity of her application for internal review 24 NZ's final ground of appeal was that she was denied procedural fairness by not being given an opportunity to provide submissions in support of the validity of her application for internal review. The matter was first listed for a planning meeting on 12 September 2005. At that time the Tribunal spoke to NZ by phone. The matter was listed on 16 September 2005 to hear the Department's application for dismissal. No directions were made for the filing and service of any further submissions by the parties. The transcript of the hearing records President O'Connor as saying: I'll just note that we seem to have received another bundle of material at the registry shortly prior to the last directions hearing which was on 12 September, that bundle of material is dated 10 September so there doesn't seem to be any further material since the planning meeting. 25 The fact that the Tribunal did not make directions for the filing of further written submissions following the planning meeting does not amount to a breach of procedural fairness. NZ filed four bundles of documents with the Tribunal, dated 22 August 2005, 31 August, 2 September 2005 and 10 September 2005. NZ was on notice as of 12 September that the matter was listed for 16 September to hear an application by the Department that her application be dismissed. If NZ had appeared at the hearing, she would have had an opportunity to make submissions about the dismissal application. Her failure to appear and make submissions is not through any fault of the Tribunal. From the material it is clear that she was on notice of the hearing and she failed to appear. She has not provided the Appeal Panel with any explanation as to why she failed to answer the phone. In those circumstances, we are satisfied that the Tribunal complied with its obligations to afford NZ procedural fairness and with its statutory duties under s 73(4)(c) of the ADT Act. Extension to the merits 26 In support of her application for leave for the appeal to be extended to the merits of the Tribunal's decision, NZ provided the Appeal Panel with copies of several letters purporting to be internal review applications to the Department. We have perused those letters. Some of them post date the Tribunal's hearing. Our tentative view is that none of the other letters constitutes a valid application for internal review under the Privacy Act. The letters deal with the same or similar matters as those referred to in other correspondence. The allegations raised in those letters do not appear to be matters which come within the definition of "personal information" in the Privacy Act. Consequently, even if we granted leave to extend the appeal to the merits of the Tribunal's decision, NZ's prospects of success would be extremely small. For that reason, we decline to extend the appeal to the merits of the Tribunal's decision. Orders 1. Decision of Tribunal affirmed. 2. Leave to appeal on the merits refused. 3. Appeal dismissed.

Applicant A194 of 2003 v Minister for Immigration & Multicultural and Aboriginal Affairs

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