Singh v Australian Information Commissioner

The reasons for closing the applicant's complaint 18 On 31 October 2023, the Investigations Officer wrote to the applicant to advise him that she had formed a view that the Department was adequately dealing with his complaint, and that further investigation was not warranted in all the circumstances. The Investigations Officer foreshadowed an intention to discontinue the investigation and close the complaint, and explained the reasons for this course of action. The Investigations Officer summarised the gist of the applicant's complaint as follows - You claim the respondent has disclosed your personal information to a third party, failed to take reasonable steps to ensure the accuracy of your personal information and failed to protect your personal information from unauthorised disclosure. Specifically, the acts and practices that you have raised include: • Claim 1 - on 4 January 2021, the respondent contacted another immigration detainee's mobile number, rather than your mobile number, and improperly divulged your sensitive personal information to the detainee (APP 6) • Claim 2 - The respondent failed to take reasonable steps to protect your information from unauthorised access, modification or disclosure. (APP 11) • Claim 3 - the respondent did not take steps to ensure that your mobile phone details were accurate and up to date. (APP 10 and 13) 19 As this excerpt shows, the Investigations Officer identified that the complaint related to four of the APPs to which the Privacy Act gives effect. 20 With respect to claim 1, the Investigations Officer set out APP 6.1, which provides - 6 Australian Privacy Principle 6 - use or disclosure of personal information Use or disclosure 6.1 If an APP entity holds personal information about an individual that was collected for a particular purpose (the primary purpose), the entity must not use or disclose the information for another purpose (the secondary purpose) unless: (a) the individual has consented to the use or disclosure of the information; or (b) subclause 6.2 or 6.3 applies in relation to the use or disclosure of the information. 21 The Investigations Officer stated that the Department acknowledged that the primary purpose of holding information regarding the applicant's detention and departure was managing immigration matters, and organising the applicant's departure from Australia. The Investigations Officer noted that the Department confirmed that a telephone call was made by the status resolution officer to another detainee prior to contacting the applicant on 4 January 2021. The Investigations Officer also noted that the Department denied that the applicant's personal information was disclosed to the other detainee, claiming that after undertaking proof of identity procedures, the status resolution officer terminated the call. The Investigations Officer stated that she considered it reasonable for the status resolution officer to contact the applicant on the most recently updated telephone number in the Department's system, but that there was insufficient evidence to establish that the applicant's personal information was disclosed to the other detainee during the telephone call, referring to call notes, which supported the Department's position. Accordingly, the Investigations Officer concluded that there was not enough evidence to suggest that there was a disclosure of the applicant's personal information which could have constituted a breach of APP 6. 22 With respect to claim 2, the Investigations Officer set out APP 11.1, which provides - 11 Australian Privacy Principle 11 - security of personal information 11.1 If an APP entity holds personal information, the entity must take such steps as are reasonable in the circumstances to protect the information: (a) from misuse, interference and loss; and (b) from unauthorised access, modification or disclosure. 23 The Investigations Officer stated that the Commissioner's Office considered "the overall security safeguards the entity has in place to protect the personal information it holds". She summarised the Department's position as follows - The respondent states that the [status resolution officer] used the phone number that was most recently updated in your file. When they received an answer, the [status resolution officer] followed normal procedures by undertaking proof of identity to verify that they were speaking to you. When the other detainee failed these steps, the [status resolution officer] terminated the call. 24 Referring again to the call notes supplied by the Department, the Investigations Officer stated that while she understood that the applicant might "disagree that personal information was shared by the [status resolution officer], there [was] no evidence to suggest that this occurred", stating that it was likely that the incorrect telephone number had been added to the applicant's file as a result of human error. The Investigations Officer concluded that there was "no information available to [her] to indicate that reasonable steps were not in place to protect [the applicant's] personal … information on this occasion". 25 With respect to claim 3, the Investigations Officer referred to APPs 10.1 and 13.1, which provide - 10 Australian Privacy Principle 10 - quality of personal information 10.1 An APP entity must take such steps (if any) as are reasonable in the circumstances to ensure that the personal information that the entity collects is accurate, up-to-date and complete. … 13 Australian Privacy Principle 13 - correction of personal information Correction 13.1 If: (a) an APP entity holds personal information about an individual; and (b) either: (i) the entity is satisfied that, having regard to a purpose for which the information is held, the information is inaccurate, out-of-date, incomplete, irrelevant or misleading; or (ii) the individual requests the entity to correct the information; the entity must take such steps (if any) as are reasonable in the circumstances to correct that information to ensure that, having regard to the purpose for which it is held, the information is accurate, up-to-date, complete, relevant and not misleading. 26 The Investigations Officer noted the applicant's claim that he had never had another telephone number while in Australia. The Investigations Officer further noted that the applicant had attempted to change the telephone number on record for him to the correct number on 24 February 2021, 13 April 2021 and 5 May 2021, and received confirmation of the update on 30 June 2021. 27 The Investigations Officer noted that the Department accepted that a breach of APP 10.1 occurred when the status resolution officer telephoned the other detainee, because the applicant's telephone number was recorded inaccurately. As for APP 13.1, the Investigations Officer stated that APP 13 does not specify a reasonable timeframe for correction, but nevertheless conceded that "a lengthy period of time had passed" before the applicant received confirmation that his telephone number had been corrected. 28 The Investigations Officer then noted the applicant's claims to have suffered "emotional damage" and specified medical conditions since the alleged breaches of the APPs. The Investigations Officer noted a letter from the Beniwal Hospital that stated that the applicant had been receiving treatment from 18 August 2021, and that he was not fit for work. Ultimately, the Investigations Officer concluded that it was not clear what treatment the applicant was receiving, or whether the alleged breaches of the APPs had resulted in the medical conditions the applicant claimed to suffer. 29 The Investigations Officer also dealt with the applicant's claimed economic losses, but concluded that there was insufficient evidence establishing a direct link between the claimed breaches of the APPs and the losses the applicant claimed. 30 The Investigations Officer concluded that the applicant had not established any loss caused by the impugned incident that exceeded the Department's offer of $1,000. The Investigations Officer therefore concluded that the apology and financial compensation offered by the Department were sufficient redress for the applicant's complaint, and so the Department had already dealt with the applicant's complaint. 31 The Investigations Officer dealt separately with the question whether an investigation was warranted having regard to all the circumstances, within the meaning of s 41(1)(da) of the Privacy Act. The Investigations Officer identified as a relevant factor whether an investigation would be a productive and efficient use of the Commissioner's powers. The features that persuaded the Investigations Officer that further investigation was not warranted included - (a) the fact that the Commissioner's Office had attempted to assist in the resolution by conducting a conciliation; (b) the fact that the Investigations team had reviewed the material, opened an investigation, and assessed the applicant's claims against the Privacy Act; (c) the fact that further expenditure was not warranted, given that it was unlikely that an investigation would achieve a better result for the applicant than the Department had already offered; and (d) the fact that various additional steps would need to be taken if the investigation were to continue. 32 The Investigations Officer gave the applicant until 14 November 2023 to provide any response to these indicative views. The applicant took up the opportunity to respond by sending an email to the Investigations Officer on 22 November 2023. 33 On 23 November 2023, the Investigations Officer informed the applicant that his additional representations had not changed her view of the matter. The Investigations Officer also gave additional reasons related to the factual controversy concerning whether the status resolution officer had disclosed the applicant's personal information to the other detainee. The Investigations Officer noted the other detainee's supporting letter, and the applicant's submission that the duration of the telephone call should lead to an inference that the Department's account of events was not true. The Investigations Officer acknowledged the evidence relating to the duration of the telephone call, but stated that there was still insufficient evidence to conclude that the status resolution officer had disclosed the applicant's personal information. The Investigations Officer informed the applicant that she was a delegate of the Commissioner, and that she had decided to decline to investigate the complaint further in the exercise of the Commissioner's discretionary powers under ss 41(2)(a) and 41(1)(da) of the Privacy Act.

Consideration 39 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. 40 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. 41 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. 42 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). 43 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. 44 Section 41(1)(da) provides - 41 Commissioner may or must decide not to investigate etc. in certain circumstances (1) The Commissioner may decide not to investigate, or not to investigate further, an act or practice about which a complaint has been made under section 36 if the Commissioner is satisfied that: … (da) an investigation, or further investigation, of the act or practice is not warranted having regard to all the circumstances … 45 Section 41(2)(a) provides - (2) The Commissioner may decide not to investigate, or not to investigate further, an act or practice about which a complaint has been made under section 36 if the Commissioner is satisfied that the complainant has complained to the respondent about the act or practice and either: (a) the respondent has dealt, or is dealing, adequately with the complaint … 46 The Privacy Act does not create a directly enforceable action by individuals for the infringement of privacy. Instead, the Act directs individuals' concerns about breaches of APPs through a complaints process. The role of the Commissioner is as an administrative gatekeeper of complaints about interferences with privacy. The initial steps that the Commissioner may take include conciliation and investigation. As an administrative gatekeeper, the Commissioner has no duty to adjudicate rights - the statutory powers of investigation are tempered by the powers to terminate an investigation: see Madzikanda at [50], cited in Papoutsakis v Australian Information Commissioner [2024] FCA 75 (Papoutsakis) at [37] (Stewart J) and Remawi v Australian Information Commissioner [2024] FCA 1156 at [20] (Meagher J). 47 As I said in Madzikanda at [47]-[48] - The discretion to terminate an investigation is to be considered in the context of the Commissioner's powers should an investigation continue to completion. Those powers are contained in s 52 of the Act and include the power to make a determination dismissing the complaint, and the power to find that a complaint is substantiated and to make a determination that includes one or more declarations, which include - (a) that the respondent has engaged in conduct constituting an interference with the privacy of an individual and must not repeat nor continue such conduct: s 52(1)(b)(i)(B); (b) that the respondent take specified steps within a specified period so that the conduct the subject of the complaint is not repeated: s 52(1)(b)(ia); (c) that the respondent perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant: s 52(1)(b)(ii); (d) that the respondent is entitled to a specified amount by way of compensation for any loss or damage suffered by reason of the act or practice the subject of the complaint: s 52(1)(b)(iii); and (e) that it would be inappropriate for any further action to be taken: s 52(1)(b)(iv). Therefore, even where an individual's complaint is found to have been substantiated, the Commissioner may determine that no further action be taken in a matter. … (Emphasis added.) 48 Additionally, I refer to the following observations in Madzikanda at [51] - The words of s 41(1)(da) must therefore be construed in light of the gatekeeping role given to the Commissioner. There is nothing in the text, structure, or purpose of the Act that detracts from giving s 41(1)(da) the broad meaning that the text of the provision bears on its face. The factors upon which the Commissioner may rely in reaching the state of satisfaction provided for by s 41(1)(da) are therefore wide, and it is axiomatic that the weight to be ascribed to such factors is a matter for the Commissioner. For present purposes, it is sufficient to say that I consider that the words "having regard to all the circumstances" in s 41(1)(da) are broad enough to entitle the Commissioner to take into account - (a) the strength of the evidence concerning a claimed interference with privacy advanced by the applicant in his s 36 complaint; (b) the weight to be given to any legal arguments; (c) the practical utility of pursuing an investigation; and (d) the efficient allocation of the Commissioner's resources and powers. 49 The broad nature of the Commissioner's discretion not to investigate further a complaint was also referred to by Stewart J in Papoutsakis, who held at [45] that there were no mandatory considerations attaching to the discretion in the sense described by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. 50 The applicant's submissions to this Court on the first two claims essentially challenge the Investigations Officer's conclusion that there was insufficient evidence to establish that the status resolution officer had disclosed the applicant's personal information to the other detainee. 51 However, as noted at [40]-[42] above, on an application for relief under the ADJR Act the Court is not concerned with reviewing the merits of the Commissioner's decision. The applicant identified the letter from the other detainee, which was provided to the Investigations Officer, and submitted that more weight should have been attributed to it. But without more, expressing disagreement with the weight that the Investigations Officer placed upon this evidence does nothing to show that the Investigations Officer exceeded the wide bounds of the discretion she was exercising such as to engage any of the grounds of review under s 5 of the ADJR Act. No persuasive basis was advanced for concluding that the Investigations Officer erred in the weight she placed on the various pieces of evidence that were before her, including notes of the telephone call with the other detainee, which were the subject of the applicant's claim. 52 Nor was any evidentiary foundation identified for the claim that the Investigations Officer was biased, or apparently biased in her assessment of the material before her. As I remarked in Madzikanda at [37], decision-making necessarily involves a risk that the interests of some persons affected by the decision are not preferred. It is therefore unusual for a court to find that that there has been apprehended bias merely by reference to particular findings or conclusions disclosed by the reasoning of a decision-maker. There is nothing about the delegate's reasons in this case that exhibits any basis on which to impugn the decision on the grounds of actual or apprehended bias. There might be some exceptional cases, such as NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; 214 ALR 264, where fact-finding has been conducted in a manner which in substantial respects is so unreasoned, or lacking rational or reasoned foundation, or plainly and ex facie wrong, that in combination with the way a hearing was conducted, a reasonable apprehension of bias arises. No basis for these types of conclusions exists here. 53 Moreover, even if the applicant could establish that the Investigations Officer reached an incorrect factual conclusion, it would not follow that the decision should be set aside. Within the bounds of reasonableness, the evaluation of the material in support of the complaint was a matter for the Commissioner within the context of decisions about investigation, and not the adjudication of rights. And as noted at [47] above by reference to Madzikanda, even where a complaint has been substantiated, it does not follow that the Commissioner is obliged to pursue an investigation indefinitely. 54 Indeed, the Investigations Officer expressly concluded that there had been a breach of APP 10, yet nevertheless decided to close the complaint. Even putting her factual findings to one side, the Investigations Officer considered that it was not warranted, in all the circumstances, to continue with the investigation. The applicant has not advanced any cogent basis to maintain that the Investigations Officer erred in reaching this conclusion. The Investigations Officer weighed a range of relevant factors, in an orthodox manner. She concluded, in effect, that any further investigation would be out of proportion to the seriousness of the issues underlying the complaint. No persuasive reason to doubt this conclusion has been proffered by the applicant. 55 The final claim raised by the applicant relates to the Investigations Officer's conclusions on his mental health. The gist of the applicant's complaint was that the Investigations Officer did not take his mental health conditions into account at all: see [34] above. 56 I do not accept the applicant's submissions on this topic. For one thing, the applicant's mental health conditions were not relevant to the main disputed factual issue between him and the Department, which was whether the status resolution officer had disclosed his personal information to the other detainee. It is thus unremarkable that the Investigations Officer did not refer to the applicant's mental health while considering that topic. And in any event, the Investigations Officer did consider the applicant's claimed mental health conditions, under the heading of "Non-economic loss". The Investigations Officer dealt with the applicant's claimed "emotional damage", and identified the range of mental health conditions which the applicant claimed to have suffered. The Investigations Officer even "acknowledge[d] the distress caused by the act or practice complained about" and acknowledged the "stress" the applicant suffered in detention. The Investigations Officer nevertheless concluded that there was insufficient evidence to show that any conditions from which the applicant claimed to be suffering were caused by the alleged breaches of the APPs. This conclusion then informed the Investigations Officer's consideration of whether the Department had remedied the breach of APP 10. The applicant has not identified anything in the material that brings the Investigations Officer's conclusion or reasoning into serious doubt. The Investigations Officer considered the applicant's evidence and representations on this subject, and reached a conclusion that was well open to her on the material. Again, merely expressing disagreement with one of the Investigations Officer's factual findings does not establish any reviewable error in her decision. 57 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.

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