FEDERAL COURT OF AUSTRALIA

Grass v Slattery [2018] FCA 1719

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application and the amended statement of claim be dismissed.

2.    The applicants pay the respondents’ costs of and incidental to this proceeding as assessed or agreed.

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

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    The applicants in this proceeding seek damages for misfeasance in public office that is alleged to have been perpetrated by seven Commonwealth public servants who were employed at the relevant times by the Department of Immigration and Border Protection (now known as the Department of Home Affairs). Related breaches of various Commonwealth statutes are also alleged, but do not appear to represent any separate cause of action. The Commonwealth is joined as the second respondent on the basis that it is alleged to be vicariously liable. Vicarious liability is not disputed by the Commonwealth if misfeasance by the individual public servant respondents is established.

2    The elements of the tort of misfeasance in public office have been crafted carefully to ensure that they do not encompass the negligent or unintentional acts or omissions of a public officer: Nyoni v Shire of Kellerberrin [2017] FCAFC 59; 248 FCR 311. As North and Rares JJ stated in Nyoni (with agreement by Dowsett J in relation to the principles) at [97]:

… The tort requires, first, a misuse of an office or power, secondly, the intentional element that the officer did so either with the intention of harming a person or class of persons or knowing that he, she or it was acting in excess of his, her or its power, and thirdly, that the plaintiff (or applicant) suffered special damage or, to use Lord Bingham’s more modern characterisation, “material damage” such as financial loss, physical or mental injury, including recognised psychiatric injury (but not merely distress, injured feelings, indignation or annoyance): see Watkins at [7], [27] …

This case falls to be determined by the application of the above principles, discussed further below.

3    The applicants are Mrs Corazon Elauria Grass and her husband, Mr John Grass. They represented themselves at the trial, with Mr Grass taking the active role and Mrs Grass adopting, without qualification, what her husband did during the hearing in her constant presence.

4    Broadly speaking, the dispute concerns the Department’s response to an application made by Mrs Grass in 2009 to become an Australian citizen. The applicants have a long history of dealings with the Department, which has been animated by a controversy over Mrs Grass’ true date of birth. Put in neutral terms, there is information available to the Department which has led some officers to the view that Mrs Grass was born in 1954. For her part, Mrs Grass maintains that she was born in 1966, and nominated this year of birth in her application for citizenship.

5    Although Mrs Grass’ application for citizenship was initially approved, it later came to the attention of the first respondent, Mrs Megan Slattery, in her capacity as a Manager in the Department, who took steps to delay the allocation of Mrs Grass to a local council citizenship ceremony (and thus the conferral of citizenship) while the issue of her date of birth was investigated. Ultimately, Mrs Grass’ approval for citizenship was cancelled by two different delegates of the Minister for Immigration and Border Protection in 2010 and 2013 (the first decision having been set aside by the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia)). In both instances, the relevant officer was satisfied that Mrs Grass had provided false or misleading information about her date of birth. Both officers considered that Mrs Grass had in fact been born in 1954, which was the date specified on Mrs Grass’ passport when she first entered the country.

6    In various ways, the applicants say that it was unlawful for the respondents to have acted upon their doubts about the correctness of Mrs Grass’ asserted date of birth. They attach great importance to the fact that, in 2008, a Freedom of Information (FOI) officer acceded to a request for Mrs Grass’ departmental records to be amended and advised her that the “Department will now refer to your date of birth as 13/11/1966”. In this regard, the applicants’ case does not go much further than suggesting that it was unlawful in a general sense for some of the respondents to have reached a conclusion that was inconsistent with that FOI decision. The real question, however, is whether the tort of misfeasance in public office is made out in accordance with the elements set out above.

7    As will be discussed in greater detail below, the applicants’ case also concerns a practice that continues to be used in the Department, whereby an applicant who has been approved for citizenship might have an administrative or informal “hold” placed on them being referred to a local council citizenship ceremony pending further enquiries into their case. Significantly, this practice does not involve any express or formal invocation of the power under s 26(3) of the Australian Citizenship Act 2007 (Cth) (Citizenship Act) to suspend an applicant’s eligibility to take the pledge of commitment and become a citizen.

8    It is not in dispute that this practice was used in Mrs Grass’ case, without telling her, to delay her from making the pledge while her case was investigated. This led to Mrs Grass waiting over a year for a citizenship ceremony that did not eventuate. The Department’s conduct in this regard has been criticised at several points, including by this Court in a prior case brought by the applicants, which has doubtless fuelled their perceptions that Mrs Grass was targeted maliciously. However, there is a need to distinguish between conduct that might fall short of best practice and conduct that is tortious. It also cannot be said, as any abstract conclusion, that such a practice is inherently and in all cases improper even in that more limited sense. It is fact- and context-specific.

9    For the reasons that follow, no conduct constituting the necessary elements of misfeasance in public office on the part of any of the seven individual respondents has been established. It follows that no conduct giving rise to vicarious liabilty on the part of the Commonwealth has been established. Further, even if this is the incorrect conclusion to reach, the applicants did not prove any loss or damage, such that the claim of misfeasance in public office must fail on that independent basis as well.

Overview

The respondents

10    The natural person respondents and their roles in the Department at the material times were as follows:

(1)    Ms Megan Slattery, the first respondent, was the Manager of the Parramatta office of the Citizenship Section of the Department.

(2)    Mr Adrian Burn, the third respondent, was the Director of the Citizenship Policy Section of the Department.

(3)    Mr Jim Callow, the fourth respondent, was the Director of Citizenship in the Parramatta office of the Department.

(4)    Ms Dana Parker, the fifth respondent, was a citizenship officer in the Department’s Melbourne regional office who made the decision on 8 April 2013 to cancel Mrs Grass’ citizenship approval.

(5)    Ms Heather Penhaligon, the sixth respondent, was an Executive Level 1 officer of the Department, and manager of the Citizenship Helpdesk.

(6)    Mr Vik Vikneson, the seventh respondent, was a Senior Legal Officer in the Enforcement and Citizenship Litigation Section of the Department.

(7)    Mr Peter Dwyer, the eighth respondent, was the Director of the Enforcement and Citizenship Litigation Section of the Department.

Applicable Legislation

11    As the tort of misfeasance in public office concerns the use or abuse of a public power or duty, regard must be had to the legislative framework of the Citizenship Act relating to the cancellation of the approval of Australian citizenship by conferral. The key provisions are as follows.

12    Section 25 relevantly provided (and still provides) as follows:

25 Minister may cancel approval

(1)    The Minister may, by writing, cancel an approval given to a person under section 24 if:

(a)    the person has not become an Australian citizen under section 28; and

(b)    either of the following 2 situations apply.

Eligibility criteria not met

(2)    The first situation applies if:

  (a)    the person is covered by subsection 21(2), (3) or (4); and

(b)    the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:

   (i)    not a permanent resident; or

(ii)    not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or

   (iii)    not of good character.

Failure to make pledge of commitment

(3)    The second situation applies if:

(a)    the person has failed to make a pledge of commitment within 12 months after the day on which the person received notice of the approval; and

(b)    the person’s reason for the failure is not one that is prescribed by the regulations for the purposes of this subsection.

…

Effect of cancellation

(5)    If the Minister cancels an approval given to a person, the approval is taken never to have been given.

Note:    A person cannot become an Australian citizen under this Subdivision unless the Minister approves the person becoming an Australian citizen. This subsection has the effect that the person will need to make another application if the person wants to become an Australian citizen.

13    Section 26 at the relevant time provided as follows:

26 Pledge of commitment must be made

(1)    A person must make a pledge of commitment to become an Australian citizen unless the person:

  (a)    is aged under 16 at the time the person made the application to     become an Australian citizen; or

(b)    has a permanent or enduring physical or mental incapacity, at the time the person made the application to become an Australian citizen that means the person is not capable of understanding the nature of the application at that time; or

  (c)    is covered by subsection 21(6), (7) or (8).

Note:    See section 27 for how the pledge is to be made.

(2)    A person must not make a pledge of commitment before the Minister approves the person’s application to become an Australian citizen. A pledge of commitment made by the person before that time is of no effect.

Delayed making of pledge

(3)    If the person is required to make a pledge of commitment and has not done so, the Minister may determine, in writing, that the person cannot make the pledge until the end of a specified period if the Minister is satisfied that:

(a)    a visa held by the person may be cancelled under the Migration Act 1958 (whether or not the person has been given any notice to that effect); or

(b)    the person has been or may be charged with an offence under an Australian law.

(4)    The Minister must not specify a period that exceeds, or periods that in total exceed, 12 months.

 (5)    The Minister may, by writing, revoke a determination.

(6)    If a determination is in force in relation to a person, the person must not make a pledge of commitment before the end of the period specified in the determination. A pledge of commitment made by the person before that time is of no effect.

14    Section 27 relevantly provided (and still provides) as follows:

27 How pledge of commitment is to be made

Form of pledge

(1)    A pledge of commitment must be made in accordance with either of the forms set out in Schedule 1.

Prescribed arrangements

(2)    A pledge of commitment must be made in accordance with the arrangements prescribed by the regulations.

Note:    The regulations may provide for a pledge of commitment to be made in public.

Persons who may receive pledge

(3)    A pledge of commitment must be made before:

  (a)    the Minister; or

  (b)    a person authorised under subsection (4); or

(c)    a person who is included in a class of persons authorised under subsection (5).

(4)    The Minister may, by writing, authorise a person for the purposes of paragraph (3)(b).

(5)    The Minister may, by legislative instrument, authorise a class of persons for the purposes of paragraph (3)(c).

15    Section 47 relevantly provided (and still provides) as follows:

47  Notification of decisions

(1)    If the Minister makes a decision under this Act in relation to a person, the Minister must give the person notice of the decision.

    Child

(2)    If the person is a child, the Minister satisfies the requirement in subsection (1) if the Minister gives a parent of the child notice of the decision.

    Reasons for adverse decision

(3)    If the decision is an adverse decision, the notice must include the reasons for the decision.

    Form of notice

(4)    The Minister must give the notice in the manner prescribed by the regulations (which includes electronic form).

    Procedural defect does not affect validity of decision

(5)    A failure to comply with subsection (3) or (4) does not affect the validity of the decision.

Key events and allegations

16    The key events are largely undisputed and may be summarised as follows before turning to the evidence.

17    Mrs Grass is a citizen of the Philippines. In 2009, she applied to become an Australian citizen. On 21 May 2009, Mrs Grass’ application for citizenship was approved. Under the Citizenship Act, however, she would not become an Australian citizen until she had taken a pledge of commitment in a mandated form. As remains the case, it was the practice of local councils to facilitate the making of the pledge at public ceremonies, which are arranged based on groups of approved persons provided by the Department. Although routine, the use of ceremonies for the making of the pledge did not reflect any legislative requirement. Mrs Grass did not have to wait for a ceremony, although, as will be seen, it seems that she was not aware that attendance at a ceremony was not required. Once approved, it is open to a person, as it was to Mrs Grass, to take the pledge at any time before a person prescribed by the Citizenship Act. It is only when satisfied of certain matters that the Minister can formally delay a person from making the pledge: see s 26(3) of the Citizenship Act.

18    It is not in dispute that Ms Slattery, who was a Manager in the Citizenship Section of the Department, was first alerted to Mrs Grass’ case in December 2008 during a conversation with a Counter Supervisor at Citizenship Parramatta in relation to the decision of the FOI Section to amend Mrs Grass’ date of birth in the Department records. Following the approval of Mrs Grass’ application by a citizenship officer on 21 May 2009, Ms Slattery became concerned that Mrs Grass might have falsely stated in her application that her date of birth was 13 November 1966, which was inconsistent with other information available in the Department’s records. Acting on that concern, Ms Slattery placed an administrative hold on Mrs Grass being allocated to a citizenship ceremony and made arrangements for her correct date of birth to be investigated. Ms Slattery told departmental staff that Mrs Grass should not be informed of the fact of the investigation or that her ceremony was on hold. Out of concern that Mrs Grass might nonetheless be sent to a ceremony, Ms Slattery also reversed the record of the “approval” of Mrs Grass’ citizenship application in the Department’s record-keeping system, although this record-keeping change was undone shortly thereafter.

19    The intended effect of these actions by Ms Slattery was that Mrs Grass would be delayed from making the pledge of commitment while her case was investigated. This was evidently on the basis that the approval of Mrs Grass’ application could be cancelled before her citizenship was perfected by making the pledge, but not afterwards. At no time did Ms Slattery expressly invoke the power in s 26(3) of the Citizenship Act, which authorised her as a delegate to suspend Mrs Grass’ entitlement to take an oath or affirmation of allegiance; indeed, on her evidence, at the relevant time she was not aware that such a power existed. From what follows, nor did Ms Slattery inadvertently invoke s 26(3).

20    Ultimately, Mrs Grass waited for over a year to be allocated to a citizenship ceremony. This did not eventuate and she did not seek to take the pledge independently before a prescribed person, as was open to her to do. In all likelihood, this is because neither she nor Mr Grass were aware of that possibility until it was too late.

21    On the basis of her further enquiries, Ms Slattery formed the view that Mrs Grass had provided false or misleading information to the Department about her date of birth. On 29 April 2010, Ms Slattery amended Mrs Grass’ departmental records to reflect what she believed to be Mrs Grass’ correct date of birth, namely, 13 November 1954. On 5 July 2010, Ms Slattery decided, as a delegate of the Minister, to cancel the approval of Mrs Grass’ application for citizenship. Following a challenge by the applicants to that decision in the Federal Magistrates Court of Australia, orders were made by consent setting aside that decision by reason of apprehended bias. Mrs Grass’ citizenship approval was reinstated, but this was ordered to take effect at a later date, enabling the issue of the cancellation of her citizenship approval to be reconsidered.

22    The applicant’s key assertions are that Ms Slattery wrongfully:

(1)    delayed the conferral of Mrs Grass’ citizenship without any lawful authority and contrary to the Citizenship Act;

(2)    reversed the approval of Mrs Grass’ application for citizenship without any lawful authority and contrary to the Citizenship Act;

(3)    directed other departmental officers to lie to the applicants about the reasons for the delay in Mrs Grass’ ceremony to conceal the fact of the investigation into her citizenship approval;

(4)    altered Mrs Grass’ personal record to change her date of birth from 13 November 1966 to 13 November 1954; and

(5)    cancelled the approval of Mrs Grass’ application for citizenship in a process that demonstrated a lack of impartiality.

23    On 8 April 2013, the fifth respondent, Ms Parker, made the decision to cancel again the approval of Mrs Grass’ citizenship application. A challenge to the validity of the second cancellation decision was brought in this Court but was unsuccessful. An appeal to the Full Federal Court was dismissed. It follows that, as a matter of law, there has never been any approval of Mrs Grass’ application for citizenship by reason of the operation of s 25(5) of the Citizenship Act.

24    For the most part, the applicants’ claims appear to also be made in relation to the other respondents only to the extent that they had knowledge of, or were involved in some way with, what was done by Ms Slattery and Ms Parker.

Facts and evidence

25    There was very little dispute about the facts of the key events in this matter. To this end, the Court is really faced with a question of the characterisation of the respondents’ actions, motives and states of mind, based on the available evidence. The applicants say that the impugned conduct was wrongful in the tortious sense and has caused them loss and damage. The respondents deny this.

26    Several observations should be made about the nature of the evidence in these proceedings. The applicants’ case was essentially a documentary one, clearly based on the assumption that their claims of misfeasance could be established on the face of the departmental and inter-agency correspondence before the Court. As such, the applicants did not adduce any other direct evidence of any of the matters in issue. While the respondents highlighted various difficulties with the applicants’ evidentiary approach, they did not dispute that most of the documents in question could be accepted by the Court generally, either as evidence that the relevant communications had taken place or in other limited ways. I note that a particular problem in the applicants’ approach was to assume that the assertion of a fact in a document of some kind could establish, without more, the truth of that assertion.

27    The respondents relied upon affidavit evidence of Ms Slattery and Ms Penhaligon as to their actions and states of mind at the relevant times. While the applicants raised nebulous objections to this evidence in its entirety, they did not meaningfully challenge the accounts given of the events in question, save that it was put repeatedly to the witnesses in cross-examination that their actions were without lawful authority and undertaken with improper motives. Those propositions were denied to the extent that they were put as questions in a form that could be answered. What matters is that no admission of the necessary kind was forthcoming.

28    The key events giving rise to the dispute have been set out below, together with the direct evidence of Ms Slattery and Ms Penhaligon. The respondents’ summary of the general facts has been adopted where appropriate, noting that no express objection was made as to its accuracy. The cross-examination of each of Ms Slattery and Ms Penhaligon has been considered separately below.

The conflicting information available to the Department prior to 2009

29    Mrs Grass is a Philippine national. She was born Corazon Elauria. In 1979, she married a Mr Barreda in the Philippines. She had two children with Mr Barreda: Elvira Barreda, who was born in 1979, and Edzon Barreda, who was born in 1982.

30    In 1998, Mrs Grass first entered Australia on a tourist visa. At the time, she was travelling under a Philippine passport issued in the name of Corazon Elauria Barreda that stated that her date of birth was 13 November 1954.

31    Mrs Grass’ tourist visa expired in 1999 and she remained in Australia unlawfully until 26 January 2002, when she was detained and removed. She met Mr Grass while in Australia. Prior to her removal from the country, she was interviewed by an officer of the Department. The record of this interview, signed by Mrs Grass, stated that her date of birth was 13 November 1954 and her marital status was “separated”.

32    On 27 August 2003, Mrs Grass lodged a fiancée visa application sponsored by Mr Grass at the Australian High Commission in London. In that application, she stated that her year of birth was 1966. She also stated, falsely on one view, that she had never been married. The reason for uncertainty in this regard is that, if she was in fact born in 1966, it seems unlikely that any marriage on 20 September 1979 (the date on the marriage certificate) could be lawful in the Philippines as she would then have been a 12-year-old child herself. However, there was no evidence that conclusively established that legal proposition either way. Mrs Grass was granted a fiancée visa. However, as made evident at [34] below, Mrs Grass did, unambiguously, falsely state in her fiancée visa application that Elvira and Edzon Barreda were her siblings, when they were in fact her children. There was no evidence from Mrs Grass on this or any other topic.

33    Mr and Mrs Grass were married in Australia in April 2004. On 1 June 2004, Mrs Grass was issued with a spouse visa.

34    In August 2004, Edzon and Elvira Barreda lodged applications at the Australian Embassy in the Philippines for extended eligibility visas as dependent children of Mrs Grass. This was brought to the attention of an officer of the Department in Sydney. Ultimately, the view was formed by the Department that Mrs Grass had provided false information and bogus documents in support of her fiancée and spouse visa applications. On 9 November 2006, Mrs Grass’ spouse visa was cancelled.

35    Mrs Grass applied to the former Migration Review Tribunal (MRT), now a part of the Administrative Appeals Tribunal (AAT), for a review of the decision to cancel her spouse visa. In her application, she conceded that Elvira and Edzon Barreda were her children rather than her siblings. However, she claimed that she was born in 1966. According to the record of the MRT’s decision, Mrs Grass claimed that she had been forced to marry Mr Barreda when she was 12 years old and that her father had backdated her birth certificate to conceal the fact that she was a minor at the time of the marriage. Being a minor when she was married to Mr Barreda would mean that Mrs Grass’ marriage to him would not have been recognised in Australia, and thus there would have been no impediment to her marriage to Mr Grass in 2004 on that basis.

36    On 28 May 2007, the MRT concluded, after reviewing the evidence, including the answers provided by Mrs Grass in the course of an examination regarding her evidence, that Mrs Grass’ correct date of birth was more likely to be 1954 than 1966 and that her visa applications had included incorrect information pertaining to her date of birth, her marital status, and her family members. However, the MRT decided to set aside the visa cancellation decision on compassionate grounds.

37    On 7 February 2008, Mrs Grass was granted a permanent spouse visa. That visa remains in force.

38    On or about 6 May 2008, Mrs Grass made an application under s 48 of the Freedom of Information Act 1982 (Cth) (FOI Act) to amend the Department’s records of her date of birth so that it would be recorded as 13 November 1966, rather than 13 November 1954.

39    On 30 June 2008, an officer within the FOI Section of the Department, Ms Reema Lath, decided that the “Department will now refer to your date of birth as 13/11/1966”. As a result, entries were made in the Department’s electronic recordkeeping system, known as the Integrated Client Services Environment (ICSE) system, so that Mrs Grass’ “principal/preferred” date of birth was recorded as 13 November 1966. For reasons that will become clear, the FOI officer’s decision was, in light of facts that later emerged, distinctly troubling, as was the rather belligerent attitude of the FOI Section of the Department to any suggestion that reconsideration of this decision might have been warranted under any circumstances. Much of the troubles that culminated in this litigation might not have occurred had the FOI Section of the Department been more open to the possibility that an error might have been made in granting Mrs Grass’ FOI application.

Issues arising in relation to FOI applications to amend personal records

40    Ms Slattery’s evidence was that, from time to time after September 2008, the work she performed as a Manager in the Parramatta office of the Department meant that she needed to look into decisions that had been made by other officers to amend clients’ personal records, in response to applications by clients under the FOI Act. Ms Slattery said that she became concerned around that time that some clients might have been requesting amended citizenship certificates for the purpose of creating a new identity in order to perpetrate what she understood to be a Centrelink fraud or other type of fraud. That was a serious concern, and one which warranted proper attention.

41    Ms Slattery was also concerned that many amendment applications had been approved by FOI officers based on limited evidence and that the officers did not always recall the necessary departmental files relating to the applicant before approving the amendment request. This too was a serious concern warranting proper attention. As a result of discussions with a number of departmental officers about the issue, it was Ms Slattery’s understanding that other officers in the Department shared her concerns about the issue of changes to departmental records being procured improperly, thereby casting doubt on the integrity of such records. Ms Slattery also gave evidence of correspondence with the Department’s Fraud Control and Investigations Section in New South Wales on this topic.

42    Ms Slattery’s evidence was that in December 2008, she was alerted to the case of Mrs Grass in a conversation with a counter supervisor at Citizenship Parramatta, Ms Mamta Sethi. Importantly, the issues concerning Mrs Grass occurred in the context of a broader concern about accurate record-keeping by the Department. The following day, Ms Slattery was copied into an email from the counter supervisor, which stated that an FOI officer had changed Mrs Grass’ date of birth to 1966, but that “it is clearly evident from the client of interest note that the client[’]s DOB is 1954 and not 1966.” The email requested that this be investigated.

43    Ms Slattery’s evidence was that, at some point after receiving the email, she looked through the Department’s records relating to Mrs Grass in the ICSE system. Mrs Grass’ entry included a “Client of Interest” note, which stated: “DIAC & MRT RECOGNISE 13.11.54 AS APPLICANT’S TRUE DATE OF BIRTH”, that is, not as 1966. As a result of her review of the ICSE system, Ms Slattery became concerned that the FOI officer who had amended the records to show that Mrs Grass’ date of birth was in 1966, rather than in 1954, might have placed greater weight on material that Mrs Grass had presented with her FOI amendment application than the previous applications, events and decisions which suggested that her correct date of birth was 1954. This was a legitimate concern in my view.

44    Ms Slattery said that in 2008 and 2009, her understanding was that an application for Australian citizenship should be refused if the decision-maker was not satisfied of the applicant’s identity. Among other things, this was based on an awareness of the absolute requirement in s 24(3) of the Citizenship Act that the Minister must not approve a person for citizenship unless the Minister is satisfied of the identity of the person.

Practices and procedures relevant to citizenship applications in 2009

45    Ms Penhaligon gave evidence that her role in the Department as the manager of the Citizenship Helpdesk was to support the citizenship network by providing policy advice on citizenship matters, performing verification of citizenship status, and processing complex cases.

46    Ms Penhaligon’s evidence was that, in 2009, when the Department approved a client’s application for Australian citizenship by conferral, the practice was to make relevant entries in the ICSE system. Ms Penhaligon’s understanding at the time was that regular citizenship ceremonies were held by local councils. Each council was required to advise the Department in advance of the dates when it would hold citizenship ceremonies. Each council also informed the Department of the number of people it was able to accommodate at each ceremony. This enabled officers in the Department to create a ceremony group for that council in the ICSE system. Officers filled those ceremony groups progressively from a list of clients who had nominated that council as their local council and whose applications for citizenship had been approved.

47    Ms Penhaligon said that she was aware that, once a person was put in a ceremony group, it might take six months before a conferral ceremony for that person was held. She said that there had been times when this period was longer than six months for some local councils due to the volume of applications and councils’ capacity to arrange ceremonies.

48    Ms Penhaligon gave evidence that, in 2009, there was a practice within the Department whereby an officer who formed the view that further information should be considered before citizenship was conferred on an approved applicant could remove a person’s name from a ceremony group while that information was being considered. The applicants did not identify any provision of the Citizenship Act that rendered this approach improper, let alone illegal. That is not surprising. The arrangement for citizenship ceremonies to be conducted by local councils was a creature of purely administrative arrangements, rather than legislative or regulatory arrangements. Not every administrative action must, or even can, be specifically authorised by statute. The administration of government would be unworkable in many areas if that were attempted.

49    Ms Penhaligon’s evidence was that it was not the practice of officers in the Department to use the power under s 26(3) of the Citizenship Act to undertake further investigation of information relevant to the question of whether a person’s approval to become an Australian citizen should be cancelled. Ms Penhaligon said that she regarded the step of removing a person’s name from a ceremony group as an administrative process, rather than the exercise of a statutory power. She said that her belief was that an officer with a delegation to make decisions under s 25 of the Citizenship Act was authorised to take such a step.

50    Ms Penhaligon gave evidence that it was not the practice in 2009, pending reconsideration of a client’s citizenship approval, for officers in the Department to disclose to a client that they had been placed in a hold group pending further investigations. Ms Penhaligon said that she understood that it was common practice for call centre operators to advise such applicants waiting for ceremonies that there was a backlog of applicants waiting for citizenship ceremonies. Such a communication might be literally correct but contextually apt to mislead if the true reason for delay was to conduct an investigation. It is probably better in such circumstances to make use of the formal power in s 26(3) of the Citizenship Act, rather than risk engaging in any practice which has the capacity to actively mislead. However, the live issue in this proceeding is whether such conduct constitutes, either on its own or in the context of other actions, misfeasance in public office.

The approval of Mrs Grass’ application comes to Ms Slattery’s attention

51    On 21 May 2009, Mrs Grass’ application for citizenship was approved.

52    On 29 May 2009, Ms Slattery checked Mrs Grass’ ICSE records and saw that Mrs Grass’ application had been approved. Ms Slattery gave evidence that she was concerned that the person who had approved the application may not have reviewed all the relevant files. It was her belief at the time that if the officer had reviewed those files, and particularly the decision of the MRT, then the officer would have had reason to doubt the truth of Mrs Grass’ assertion that her date of birth was 13 November 1966. It would seem that this belief was well-founded.

53    Ms Slattery’s evidence was that after discovering that Mrs Grass’ application for citizenship had been approved, she had a discussion with Mr Callow, the Director of Citizenship in the Parramatta office of the Department. He told her that she could place Ms Grass’ ceremony on hold while her true date of birth was investigated, and that she could ask the Citizenship Policy Section of the Department for advice. Mr Callow also told her to “look into the case”, but to try to do it within the time that Mrs Grass would ordinarily be waiting for a citizenship ceremony to come up. Absent any issue of Mrs Grass being misled, I cannot see anything wrong with what Mr Callow told Ms Slattery to do, especially as it would not involve misleading anyone, let alone Mrs Grass.

54    Ms Slattery followed this advice and discussed the case with Ms Penhaligon. She told Ms Penhaligon that she intended to place Mrs Grass’ citizenship ceremony on hold while she carried out further investigations. Ms Penhaligon gave evidence that she regarded Ms Slattery’s concerns about the case as being well-founded and reasonable, and that she agreed with Ms Slattery’s proposed course of action. She also gave evidence that Ms Slattery did not say to her that she proposed to cancel the approval of Mrs Grass’ application for Australian citizenship.

Ms Slattery’s “hold” on Mrs Grass’ citizenship ceremony in the ICSE system – May 2009

55    On 29 May 2009, following her discussions with Mr Callow and Ms Penhaligon, Ms Slattery made an entry in the ICSE system to place Mrs Grass’ citizenship ceremony on “hold”. To that end, Ms Slattery altered the “ceremony preferences” section of Mrs Grass’ ICSE file by selecting the option “hold conferral” from a drop down list.

56    Ms Slattery’s evidence was that she had not previously placed a “hold” on a citizenship ceremony in the ICSE system, and therefore sought assistance from another member of staff from the Ceremonies Team at the time, Mr Nguyen. Mr Nguyen told her (being evidence of the fact of what was said to her to explain what she subsequently did, rather than evidence of the truth) that the “on hold” procedure was not entirely effective and that some clients had been taken off the “on hold” list and put through to a council citizenship ceremony without any liaison with the Ceremonies Team.

57    Ms Slattery gave evidence that on the same day that she made the “hold” entry in the ICSE system, she noticed a highlighted field on the screen that appeared to give her the option of reversing the approval of Mrs Grass’ citizenship application. She selected that option and entered a note reading “Approval undone pending further investigation into client’s ID – DOB”, together with a further note requesting that any enquiries be forwarded to her.

58    Ms Slattery said that she made the later entries in the ICSE system for the sole purpose of avoiding the possibility that another departmental officer might take Mrs Grass off the “on hold” list before her application had been investigated further. In her evidence, Ms Slattery said that she regarded it as a temporary administrative step taken to reinforce the “hold conferral” entry. She said that she did not make those further entries in the belief that she was exercising a power to formally cancel the approval of Mrs Grass’ citizenship application. She said that at the time, she believed that she had the authority to make the further entries because she had the option of making the entry in the ICSE system. She said that the availability of the particular functionality gave her assurance that she had personal authorisation to do so.

59    Ms Penhaligon’s evidence was that on 29 May 2009, she had a discussion with Ms Slattery concerning the “reversal” entry in the ICSE system. According to Ms Penhaligon, she told Ms Slattery that she had, in effect, vacated the former decision by altering the record, and that this was not an action that she was able to take unless there was “a jurisdictional record or cancellation of approval”. In my view, this was almost certainly an overstatement of the effect of the “reversal” entry, although it doubtless had the appearance of something more substantial than merely changing a departmental record of citizenship approval having been given. The actual approval itself would have remained legal and effective at that time.

60    On 1 June 2009, Ms Slattery received an internal email from Ms Hanny Kassab, who was identified by her email signature as “Manager, NSW Citizenship – Sydney”. The email, which was copied into the ICSE system, relevantly stated as follows:

[A]ccording to ICSE, you seem to have reversed the approval on a conferral application. This action is not within the appropriate delegation in the Citizenship Act. There are appropriate avenues within the scope of the Act and the role delineation in NSW Citizenship to deal with information that may impact on an approval of an application for Australian Citizenship by conferral. As you are aware, the complex conferral application[s] are managed in Sydney. I would appreciate it if you would redirect the case to Sydney, as we have the expertise and the role to manage any complex conferral matters, including any ID.

In the future, I would greatly appreciate it if you would speak to me before directing any of my staff on any matters on which they report to me, in the first instance …

61    Ms Slattery gave evidence that she went immediately to discuss the email with Mr Callow. In her account of the conversation, Mr Callow said words to the effect of “Don’t worry about it, leave it with me and I will arrange to have that email taken out of ICSE”. Ms Slattery said that she understood that Mr Callow proposed this because he thought it was inappropriate for an internal communication such as Ms Kassab’s email to be entered into the ICSE system and because he knew that it had not been Ms Slattery’s intention to make a legal decision regarding the cancellation of Mrs Grass’ citizenship approval.

62    Ms Slattery said that very shortly after making the entries on 29 May 2009, she became aware that she should not have taken this extra step of reversing the record of the approval of Mrs Grass’ citizenship application. She said that at no time did anyone in the Department suggest to her that she should not have made the “hold conferral” entry, and that at no time did she form the view that she was not authorised to make the “hold conferral” entry.

63    Ms Slattery said that she attempted to reverse the cancellation entry but was unable to do so, and informed other officers in the Department of the position.

64    The record of the approval of Mrs Grass’ application was reinstated in the ICSE system on 4 June 2009, six days after Ms Slattery had changed the entry recording the reversal of citizenship approval. There is no suggestion that either of the applicants had any awareness that this had taken place until well after the event. There is no evidentiary basis for concluding that this had, by and of itself, caused any harm.

The investigation regarding Mrs Grass in 2009

65    It appears that in June 2009, Ms Slattery sought legal opinions about Mrs Grass’ case, although her recollection of the details was poor. A file note on the ICSE system for 23 September 2009 by a Mr Jackson, who was an Acting Assistant Manager for NSW Citizenship Sydney, records Mr Jackson’s note of a conversation with Ms Slattery about the case, including his comment that “[i]f it appeared to be one where the pledge might be formally delayed or the approval cancelled then I suggested that it may be appropriate to refer it back to Sydney”.

66    Ms Slattery’s evidence was that, around the time she received Mr Jackson’s note, she became aware that there was a process by which the Minister could exercise a formal statutory power to delay the making of a pledge. She said that she understood that a client could only be prevented from making the pledge for a period of up to 12 months, and would need to be informed of the decision. Ms Slattery said that she did not regard the making of a “hold conferral” entry in the ICSE system as having the same effect as such a formal decision. For reasons that will be explained in further detail below, that understanding was correct.

67    On 24 September 2009, Ms Slattery received an email from one of her staff members, Ms Olga Yakovchyts, who was a Citizenship Integrity Officer in the Parramatta office. That email provided a case history of Mrs Grass for referral to the Fraud Control and Investigations Section of the Department, which Ms Slattery recalled having asked the officer to prepare. Based on the case history, Ms Slattery said that she was aware of the following:

(1)    Mrs Grass (then Ms Barreda) first entered Australia on a Filipino passport bearing a date of birth of 13 November 1954.

(2)    Mrs Grass was removed from Australia as an unlawful non-citizen in January 2002, on the same Filipino passport.

(3)    In August 2003, Mrs Grass, this time with a passport stating that her date of birth was 13 November 1966, applied for and was granted a fiancée visa at the Australian High Commission in London.

(4)    Mrs Grass subsequently entered Australia on 7 January 2004 on a Filipino passport bearing a date of birth of 13 November 1966.

(5)    In Mrs Grass’ application for a fiancée visa, she listed two siblings, Edzon Adrienne Barreda and Elvira Marie Barreda, born in 1982 and 1979 respectively. However, when these two persons made applications for extended eligibility, they stated that Mrs Grass was their mother. They also provided birth certificates that showed that she had been born in 1954, and not in 1966.

(6)    The Department had three different birth certificates for Mrs Grass, all of which had different details of her parents and variations of her name. There were also two marriage certificates showing that Mrs Grass had been married to Mr Barreda, first on 20 September 1979, solemnised by a judge, and for a second time on 7 October 1981, solemnised by a priest.

(7)    Mrs Grass’ permanent residence visa had been cancelled on 9 November 2006. Although this had been re-instated by the MRT, the MRT concluded that Mrs Grass’ correct date of birth was 13 November 1954 and not 13 November 1966.

(8)    Notwithstanding the MRT’s findings, an FOI officer within the Department had changed the date of birth based on dental reports, statutory declarations, one of the birth certificates, the new Filipino passport and certification from a Mr Ariola, all of which Ms Yakovchyts regarded as “questionable”.

(9)    Ms Yakovchyts suspected that not all of the information available to the Department had been considered by the FOI officer.

68    On 25 September 2009, Ms Yakovchyts confirmed by email to the Fraud Control and Investigations Section that she was transferring the seven files of Mrs Grass’ case to them. Ms Slattery was copied to that email.

69    Ms Slattery’s evidence was that she believed that no officers in the Department should disclose to or alert Mrs Grass to the fact that she was being investigated. No legal basis for an obligation to notify a person that they are being investigated by a government department was identified, and I am not aware of any such obligation. It is possible to imagine circumstances in which it would not be sensible to warn somebody that they are being investigated, especially if that might adversely affect the investigation in some way. As already noted, this is in a different category to someone being actively misled, which will turn on the particular facts and circumstances and any justification for that taking place, an issue to which I now turn.

The Department’s communications with Mr Grass – December 2009

70    It appears that in December 2009, Mr Grass called the Melbourne Contact Centre of the Department regarding the citizenship ceremony of his wife. Two departmental file notes record details of interactions with staff.

71    The first file note, which is from 21 December 2009, reads:

Client called MCC regarding ceremony as has been waiting over 6 months since approval. Megan Slattery contacted by HCC TL – Catherine Brown – have been advised client ceremony still on hold pending investigation. Client NOT to be advised of investigation or that ceremony on hold. Please speak to Megan Slattery if there are further questions. Client advised that there is currently a big waiting list for ceremony, and they will be contacted in due course.

72    Ms Slattery’s evidence was that she recalled having a conversation with somebody in the Melbourne Contact Centre, but did not remember it being with Ms Brown specifically. She said that she remembered saying to the particular staff member words to the effect of “don’t tell them that the matter has been referred to Investigations”. She said that, although there was a big backlog of people waiting for ceremonies at the time, she did not tell Ms Brown to provide that explanation to Mr or Mrs Grass. She said that a minute dated 22 December 2011 of an investigation by the Workplace Relations and Conduct Section is incorrect insofar as it records that “Ms Slattery also stated that she instructed the call centre to advise Mr Grass that there was a long waiting list for conferral …”. There is no reason to doubt Ms Slattery’s evidence.

73    The second file note apparently records an email by Ms Ordette Assey to Ms Slattery the following day. It relevantly reads:

Hi Megan

I contacted the client’s husband Mr John Grass in response to the email recd and gave him the same information I told the client yesterday that at this stage Ryde Council have not provided any ceremony dates for next year. He was quite persistent about knowing approximately when her ceremony would be as he had found out from the council that they hold ceremonies every month for 100 clients and he was sure his wife would be somewhere on the top of the list. I advised him that there were still clients who were approved about the same time as his wife waiting for a ceremony. Without advising him about the pending investigation, I said that the clients who were approved about May would be invited about Feb or March. I also advised him that 100 clients per ceremony did not mean the first 100 on the list. Some families had many children included in their application and the more number of children the number of main applicants would diminish. He said we should do something about clients waiting for citizenship so long. His wife was depending on her citizenship as she had travel plans. He then thanked me for responding to his enquiry.

74    Ms Slattery said that she could not recall any conversation with Ms Assey around that time. Ms Slattery said that, to the best of her recollection, she did not give her any instructions regarding what the person she spoke to should say to Mr or Mrs Grass.

75    Ms Slattery’s evidence was that she understood at the time that the practice within the Department was not to disclose to a client the fact that an issue relating to that client was being investigated. She said that this understanding was based on her experience in dealing with clients who were the subject of investigations, particularly when she worked as a Compliance Officer and in the Citizenship Section of the Department. Ms Slattery said that she had had involvement in a number of such cases where the fact of the investigation had not been disclosed to the client.

Legal advice within FOI Section – January 2010

76    It appears from the documents in evidence that on 4 January 2010, the Acting Director of the FOI and Privacy Policy Section of the Department, Mr David Turner, sent an email to Ms Karen Kinsela, the Acting Manager of the FOI Section at the time, forwarding legal advice applicable to, but not specifically about, Mrs Grass’ case. The original advice, which was dated 18 June 2008, was from an officer at the Australian Government Solicitor and concerned the ability of a departmental officer to revisit an amendment decision made in respect of a client’s records. It appears that the impetus for the advice being forwarded to Ms Kinsela was a request from the Citizenship Section that the FOI decision in relation to be Mrs Grass be revisited. The substance of the advice is to the effect that the FOI decision could only be revisited in limited circumstances. The advice appears to be relied upon by the applicants to say that it was unlawful for Ms Slattery to have reached a conclusion that was inconsistent with the FOI decision, and to have later made her own changes to the record.

77    It is not necessary to decide whether or not the advice from the Australian Government Solicitor was correct, because Ms Slattery’s evidence was that she had no recollection of ever seeing that legal advice.

Notice of consideration of cancellation – February 2010

78    On 8 February 2010, Ms Slattery sent a letter to Mrs Grass advising that the Department was considering cancellation of the approval of her application for Australian citizenship on character grounds.

79    Ms Slattery said that she could recall being informed, prior to 8 February 2010, that the Fraud Control and Investigations Section was not going to investigate Mrs Grass’ case. I note that the applicants appear to rely upon the position taken by that section of the Department to suggest that it was unlawful for Ms Slattery to take any further action in relation to Mrs Grass. It is not apparent why that should be so. A decision not to commence a criminal investigation does not necessarily have any bearing on administrative actions more generally, and there was nothing to suggest that this situation was in a different category to that general position.

80    Ms Slattery said that at the time she wrote her letter to Mrs Grass, she had reviewed six files relating to Mrs Grass, each of which was in evidence. Ms Slattery said that she recalled being satisfied from those files and the case history she had requested from Ms Yakovchyts that Mrs Grass had provided false and misleading information to the Department.

81    After communications with Mr Grass in relation to the letter of 8 February 2010, Ms Slattery stated in an email to Mr Grass dated 12 February 2010 that she would document the reasons why she was considering cancellation of the approval of Mrs Grass’ Australian citizenship and that she would provide Mrs Grass with a further 28 days to respond to the new letter.

Request for assistance made to the Australian Embassy in Manila – March 2010

82    It appears that on 17 March 2010, Ms Yakovchyts made a request by email to staff at the Australian embassy in Manila for assistance with verifying Mrs Grass’ identity, background, and birth and marriage details. Ms Slattery was copied to that email.

Changing Mrs Grass’ date of birth in the ICSE system – April 2010

83    On 29 April 2010, Ms Slattery changed Mrs Grass’ date of birth from 1966 to 1954 in the ICSE system. The change made was to nominate the 1954 date of birth as the “principal/preferred” date of birth. It did not entail deletion of the details of the 1966 date of birth, which remained recorded.

84    Ms Slattery gave the following evidence about her understanding of the ICSE entries:

(1)    The ICSE system contained an entry for a “principal/preferred” date of birth along with aliases, which might include the same name but with a different date of birth. One person might have many aliases. Officers above APS3 [Australian Public Service Level 3] were able to change an alias to a “principal/preferred” identity or add other aliases. Ms Slattery had done so on a number of other occasions before April 2010. In making those changes, the ICSE system provided a list of standard reasons, which included “forms”, “informed by client” and “other documents”. That is, the reasons for making a change were not confined to FOI amendment applications.

(2)    Ms Slattery said that she had observed that officers who were APS3 or above routinely updated the records as new information about clients became available.

(3)    In Ms Slattery’s ICSE system training, which she had received before 2010, she had been instructed that the ICSE system should record the most accurate identity details within the “principal/preferred” field.

85    Ms Penhaligon also gave evidence about practices concerning amendment of records in the ICSE system. She said that it was her understanding, based on the Privacy Act 1988 (Cth), that officers were expected to ensure that ICSE records were kept up to date. She said that it was her understanding in 2010 that, if an officer had a reasonable view that information about a client recorded in the ICSE system was misleading or inaccurate, the officer was authorised in most cases to alter the record in the system by adding or amending notes, so that the record was not misleading or inaccurate. The basis for this power in 2010 was Principle 7 of the Information Privacy Principles, as then set out in s 14 of the Privacy Act.

86    In her evidence, Ms Penhaligon said that it was her personal view in 2010 that if there was information recorded in the ICSE system as a result of changes to the ICSE records made under the FOI Act, then the Information Privacy Principles did not authorise further change. She also said, however, that other officers within the Department whom she spoke to at the time expressed to her a different view.

87    Ms Slattery said that she had made the change to Mrs Grass’ records in ICSE because she believed that Mrs Grass’ year of birth was 1954, rather than 1966. This belief was based on the information available to her at the time, which included, in particular, information that she had received by email from an integrity officer, Ms Melody Subagan, who was based in the Australian Embassy in Manila. Ms Subagan had advised that:

(1)    the verification checks of Mrs Grass’ three different birth certificates revealed only one genuine birth certificate, bearing a date of birth of 13 November 1954;

(2)    the tax identification number verification and social security system verification confirmed Mrs Grass’ correct date of birth as 13 November 1954;

(3)    the results obtained from Manila also included information about Mrs Grass’ three siblings, including one who was born on 23 November 1966, ten days after Mrs Grass’ claimed date of birth of 13 November 1966;

(4)    staff in Manila had also carried out birth certificate verification checks on Mrs Grass’ children’s birth certificates, which again confirmed 13 November 1954 as her correct date of birth; and

(5)    both of Mrs Grass’ educational certificates, from Lipa City Colleges and Far Eastern University respectively, were non-genuine.

88    On 23 July 2010, Ms Slattery received an email from Ms Linda Rossiter, Director of the FOI and Privacy Policy Section of the Department, which referred to Ms Slattery’s change to the ICSE system and relevantly stated:

Can you please advise on what grounds you made this amendment, given there are no reasons attached to the ICSE record and that the previous change to Ms Grass’ date of birth was made by a departmental officer delegated to do so under the FOI Act?

Updated notice of consideration of cancellation – 11 May 2010

89    On 11 May 2010, Ms Slattery sent an updated letter to Mrs Grass with details of evidence of adverse character. Ms Slattery said that this letter was based on her review of all of the files relating to Mrs Grass available to her at that date, together with the information received from the Australian Embassy in Manila. Mrs Grass provided three separate responses but did not address the Department’s concerns in respect of her character. It is not necessary to detail those responses for the purposes of these reasons.

Interview with Mr and Mrs Grass – 4 June 2010

90    On 4 June 2010, Ms Slattery conducted an interview with Mr Grass and Mrs Grass. The transcript of the interview was in evidence.

91    Mr Grass provided a letter at the interview. Following the interview, Mrs Grass also provided that letter by email, together with several attachments in support of her good character.

Citizenship cancellation decision – 5 July 2010

92    On 5 July 2010, Ms Slattery sent a letter to Mrs Grass with an attached decision record that recorded her decision to cancel Mrs Grass’ citizenship approval.

93    Ms Slattery’s evidence was that, in coming to that decision, she had considered all of the documents which were available to her at the time, including the dental records Mr and Mrs Grass had provided and the statutory declaration of a school principal at a school Mrs Grass claimed to have attended.

94    On 12 July 2010, Ms Slattery sent an email to the Visa Cancellations team of the Department requesting an investigation as to the cancellation of Mrs Grass’ visa.

95    On 19 July 2010, Ms Slattery emailed Ms Kinsela, informing her of the cancellation decision and requesting that the FOI decision to change Mrs Grass’ date of birth be reviewed.

Commonwealth Ombudsman’s Investigation

96    It appears from the documents in evidence that:

(1)    at some point following receipt of Ms Slattery’s letter of 8 February 2010, the applicants made a complaint to the Commonwealth Ombudsman; and

(2)    the Department prepared responses to requests by the Commonwealth Ombudsman’s Office for further information relating to the complaint.

97    The Department’s response to the Ombudsman included an email drafted by Ms Slattery in response to a proposal by the Ombudsman’s Office to record administrative deficiency in Mrs Grass’ case. Ms Slattery’s evidence was that the email was cleared by the Global Manager of Citizenship, Settlement and Multicultural Affairs at the time. The final response was sent by the Department.

98    Ms Penhaligon said that she was copied to the email sent in response to the Ombudsman’s notice but did not have any involvement in its drafting or approval, as this was not part of her role.

The applicants’ challenge in the Federal Magistrates Court to the citizenship cancellation decision

99    On 2 November 2012, Mrs Grass commenced proceedings against the Minister in the Federal Magistrates Court, seeking orders that the 5 July 2010 decision by Ms Slattery to cancel her citizenship approval be set aside.

100    Shortly afterwards, on 16 January 2013, the Minister’s solicitors informed Mrs Grass by email that he would consent to orders setting aside this decision. The consent orders attached to this email included a note that the Minister “concede[d] that the decision of the Respondent’s delegate dated 5 July 2010 is affected by a reasonable apprehension of bias”.

101    In early 2013, shortly after the Minister had agreed that the 5 July 2010 decision to cancel the May 2009 approval should be set aside, Ms Penhaligon asked Ms Parker, a citizenship officer based in the Department’s Melbourne regional office (and sixth respondent), to review Mrs Grass’ citizenship application. At this time, Ms Parker was a senior decision-maker with considerable policy experience who had had no previous exposure to Mrs Grass’ case. There is no evidence to suggest that Ms Penhaligon, or anyone else in the Department, gave any directions to Ms Parker as to any decision she should make in relation to Mrs Grass’ application.

102    It is important to note two emails that were sent at the time of the proceedings in the Federal Magistrates Court, as they form what appears to be the main basis for allegations against those involved that they unlawfully consulted and collaborated to bring about the cancellation of Mrs Grass’ citizenship approval.

103    The first email was sent on 7 February 2013 by Mr Vikneson, a Senior Legal Officer in the Enforcement and Citizenship Litigation Section of the Department (and seventh respondent). It was sent to Ms Penhaligon and Mr Burn, Director of the Citizenship Policy Section of the Department (and third respondent), copying Mr Dwyer, the Director of the Enforcement and Citizenship Litigation Section of the Department (and eighth respondent), and is in the nature of a report on the proceedings in the Federal Magistrates Court:

By way of an update, despite our attempts, this case was not resolved by our earlier proposed Consent Orders. As such, the matter proceeded to a hearing (as listed), before the Federal Magistrate yesterday afternoon. I enclose a copy of the hearing report from our solicitor for your attention.

In summary, after hearing arguments from the parties[’] representatives, the Court has reserved judgment. I also subsequently spoke to our solicitor who advised that the Magistrate did not indicate a time by which he may hand down judgment [the following lines are redacted].

Meanwhile, as we discussed at the last meeting in Peter’s office, I assume that arrangements have been put in place and processing is underway in regards to Mrs Grass’ citizenship application.

104    The second email was sent by Ms Penhaligon later that day, forwarding Mr Vikneson’s email to Ms Parker, and relevantly copying Mr Burn:

Please refer to the outcome of the hearing yesterday in the matter of Grass.

It is important that we keep moving quickly – I am going on leave today for a week and [a] bit but could you please work with Adrian and Vik to complete the drafting of the procedural fairness letter.

Aydin Could I ask you please that you provide Dana with support to complete this – I know that she is having trouble with her DRAGON at the moment and may need assistance in preparing the draft letter. Not knowing what the outcome will be makes it very difficult – we will hope for the best that the decision is set aside at a later date rather than the day the finding is handed down. …

105    Both emails reflect a concern that if the Federal Magistrates Court were to make orders setting aside the cancellation decision with immediate effect, arrangements would need to be in place for reconsideration of that decision to take place on an urgent basis.

106    On 13 February 2013, the Federal Magistrates Court handed down its judgment and made an order that the “decision dated 5 July 2010 to cancel the approval of [Mrs Grass’] citizenship application be set aside with effect from 8 April 2013”: Grass v Minister for Immigration [2013] FMCA 74. The Court noted at [6] the Minister’s concession that there had been a breach of natural justice. Regarding the delayed effect of the orders, the Court considered at [22] that it was appropriate to give the Minister time “to decide in a careful and considered way … whether Australian citizenship should be conferred on [Mrs Grass]”.

8 April 2013 cancellation decision

107    On 12 March 2013, Ms Parker notified Mrs Grass that she was considering whether, upon the earlier decision of 5 July 2010 being set aside, she should cancel the approval that had been granted to Mrs Grass’ application for Australian citizenship. Ms Parker stated that Mrs Grass should provide any comments or response by 27 March 2013, but could request an extension stating reasons why such an extension was required.

108    On 25 March 2013, Mrs Grass wrote to Ms Parker, asserting a failure to provide procedural fairness by reason of not having been given more time to respond, but nonetheless providing a lengthy response to Ms Parker’s letter. On 26 March 2013, Ms Parker sent an email to Mr Vikneson and Ms Penhaligon seeking advice in relation to this letter:

… How much of this should I respond to outside of the review process? The client has provided no real additional evidence other than their assertions that there are extenuating circumstances relating to why Mrs Grass overstayed her Visa, and the issue of the date of birth again. …

109    Ms Penhaligon responded on the same date. Relevantly, she said:

I think it best that Litigation provide you with advice on the best way forward – I am sure Vik will seek further advice from the panel firm on how to respond. …

110    It should be noted that Ms Parker’s email, and Ms Penhaligon’s limited response, form the basis for several of the applicants’ allegations of misfeasance.

111    Ms Parker responded to Mrs Grass by letter dated 2 April 2013. She acknowledged the request by Mrs Grass for further time to respond, but indicated that she had decided not to grant that extension for various reasons. These included the fact that Mrs Grass had provided a substantive response to the matters in her 12 March 2013 letter and had not identified what further evidence or submissions she needed additional time to provide. Ms Parker confirmed that she would take into account material previously submitted by Mrs Grass to the Department concerning whether or not she was of good character, and that she would take into account any further material or submissions provided to her up until the time when she would make her decision.

112    On 7 April 2013, Ms Parker received further submissions from Mrs Grass by letter. That letter did not request any further extension of time to respond, or indicate that there was any other material or submissions that Mrs Grass would have provided if afforded further time.

113    On 8 April 2013, Ms Parker exercised her power under s 25 of the Citizenship Act to cancel the approval of Mrs Grass’ citizenship application on the basis that she was satisfied that Mrs Grass was not of good character. She sent a letter to Mrs Grass notifying her of this decision and attaching the decision record.

114    In relation to the question of good character, Ms Parker’s findings included that Mrs Grass had previously unlawfully overstayed her visa for a period of two years, had during that time worked unlawfully in Australia, had demonstrated a pattern of false and deliberate misrepresentation concerning her identity, and had provided false information to the Department and various other Federal and State instrumentalities.

Cross-examination of Ms Slattery

115    The cross-examination of Ms Slattery by Mr Grass took place on the second day of the hearing. Ms Slattery was asked to indicate what training, experience and qualifications she had to make decisions under ss 25 and 26 of the Citizenship Act. Ms Slattery said that she had attended formal training run by the national office, although she could not recall at what time. Ms Slattery said that officers with delegations did not necessarily know 100 per cent of the law when they commenced their duties, but that a lot of the work in the Department was such that they learnt on the job. Ms Slattery said that she had access to reference material and asked experienced colleagues for their advice.

116    It was put to Ms Slattery, without inviting a response, that she was required by s 26(3) of the Citizenship Act to advise Mrs Grass in writing that she had placed her citizenship ceremony on hold. She was then asked whether she considered that she had an obligation to check the terms of the Citizenship Act before doing so. Ms Slattery said that she did check the legislation, but was not directly aware of s 26(3) of the Act at the time.

117    It was put to Ms Slattery that Mrs Grass’ citizenship ceremony was delayed for 13 and a half months. This was said to be contrary to s 26(3) of the Citizenship Act, insofar as it provides that the Minister may determine in writing that a person cannot make the pledge until the end of a specified period not exceeding 12 months. It was put to Ms Slattery, without inviting a response, that an email she sent to Ms Yakovchyts on 24 September 2009 suggested that she had an awareness of s 26(3), given that she had relevantly written:

Although this case has been approved for citizenship it is currently on hold whilst we refer the case to you for investigation. Could you please let me know if an investigation is undertaken on this case as we would then be able to place the Australian Citizenship ceremony on hold for 12 months to enable the investigation to proceed?

118    Ms Slattery was asked why she did not send Mrs Grass to her ceremony, given the 12-month limit in s 26(3) on determining to delay a pledge. Ms Slattery said that she did not formally delay the making of her pledge. She said that she had administratively put Mrs Grass’ case on hold while she referred the matter to the Fraud Section of the Department. She said that the Fraud Section had decided not to prosecute, so she picked up the case and considered whether or not there were grounds for cancellation of approval. She emphasised that she did not formally invoke a 12-month period.

119    Ms Slattery was asked if, at the time she placed the hold in the ICSE system, she was aware that Mrs Grass had been scheduled for a ceremony or was just on a waiting list. Ms Slattery said that she was not specifically aware of whether Mrs Grass had been allocated a date to attend a ceremony.

120    Ms Slattery was asked whether she checked with anybody to see if she had the authority to reverse the record of Mrs Grass’ citizenship approval in the ICSE system. She said that she did not. She said that she did not realise at the time that she had made that mistake. It was put to Ms Slattery that, by her entry in the ICSE system, she was, in effect, cancelling Mrs Grass’ approval before an investigation had commenced. Ms Slattery said that she did not believe that was the case. She said that she understood from her legal training in the Department that the making of a decision involved both a state of mind and the steps taken to enact that decision in the ICSE system. She said that she did not have it in her mind that she was trying to cancel Mrs Grass’ approval. She said that she was simply trying to put Mrs Grass’ case on hold.

121    Ms Slattery was asked to identify what authority she had to amend Mrs Grass’ date of birth in the ICSE system. Ms Slattery said that it was very common practice for anyone with access to the ICSE system to amend details, and that they would add any and all aliases of clients to the system. Ms Slattery agreed that there was a conflict with the FOI decision, but said that she was bound to do what she thought to be the right thing, which was to recognise in the ICSE system the correct date of birth from the evidence in front of her. Ms Slattery said that she believed she had the authority to make the amendment.

122    Ms Slattery was asked whether she accessed the material relied upon by the FOI officer, Ms Lath, in making her decision of 30 June 2008. Ms Slattery said that she read Ms Lath’s decision and that recalled looking through the evidence Ms Lath had considered.

123    It was put to Ms Slattery that the core reasons for her cancellation decision in 2010 were her not having been satisfied of Mrs Grass’ identity and the fact that there had been different dates of birth previously. It was put to Ms Slattery that she did not have authority under the Citizenship Act to come to a different decision than was made under the FOI Act. Ms Slattery said that she understood that there were different Acts, but that she was bound by the Citizenship Act. She said that “Policy” and colleagues had put it to her that the Citizenship Act was the much stronger framework in regard to a person’s identity.

124    It was put to Ms Slattery that Mrs Grass was entitled to be notified under natural justice principles to have the opportunity to respond to the intention to change her date of birth in the ICSE system. Ms Slattery said that she did not consider it necessary to notify Mrs Grass that she was considering whether to edit Mrs Grass’ “principal/preferred” date of birth in the ICSE records. Ms Slattery said that Mrs Grass was provided natural justice under the Citizenship Act in February when considering whether to cancel the approval of her citizenship application, which was the focus of her attention.

125    It was put to Ms Slattery that “identity” is not a ground under s 26 for deferring a ceremony or cancelling an approval. Ms Slattery’s evidence was that Ms Penhaligon had suggested to her that it was open for her to consider identity as part of the consideration of whether a person is not of good character.

126    It was put to Ms Slattery that she had consulted with Mr Callow, Ms Penhaligon and Mr Burn about the Department’s response to the Commonwealth Ombudsman’s investigation. She accepted that she may have.

Cross-examination of Ms Penhaligon

127    Ms Penhaligon was asked about her awareness of the hold on Mrs Grass’ citizenship ceremony and the reversal of her approval in the ICSE system. Ms Penhaligon said that she did not believe that there had been a formal delay of the citizenship ceremony at that time. She said that Mrs Grass’ citizenship approval had not been cancelled by Ms Slattery’s changes in the ICSE system. She said it was just that the record in the system had been reversed, and that this change in the system did not actually cancel the approval.

128    Ms Penhaligon was asked whether she had discussed with Ms Slattery on 29 May 2009, or at any time in the period following, the lawfulness of the delay of Mrs Grass’ ceremony. Ms Penhaligon said that she was not aware of having had a conversation about whether it was lawful or not. She said she had not consulted with anyone else on that question.

129    Ms Penhaligon was asked whether she made any attempts to find out if there was power under the Citizenship Act to put into place or continue the informal practice of placing ceremonies on hold. She said that she was aware that s 26(3) had not been used in relation to Mrs Grass at that time.

130    Ms Penhaligon was taken to a draft internal document dated 27 January 2009. The document took the form of a table that was divided into three sections titled “When should the Citizenship Section process an amendment?”, “When should FOI section process an amendment?” and “When can DIAC staff amend personal information under the Privacy Act?”. Ms Penhaligon accepted that she had been involved in the drafting of the document, but said that she had not seen the final version. No further questions were asked about the document specifically, although it appeared to form the basis for a generalised assertion that the respondents had acted inconsistently with departmental policy.

131    Ms Penhaligon denied having any awareness that the “principal/preferred” record of Mrs Grass’ date of birth in the ICSE system was changed back to 1966 following intervention by the Freedom of Information Commissioner.

132    Ms Penhaligon was asked if she had discussed Mrs Grass’ case with Mr Burn. She could not recall an exact conversation with Mr Burn, but noted that it would have been remiss of her not to have spoken to him about this case, or any other case involving complex issues, during the period.

The applicants’ case

133    The course of conduct that is complained of by the applicants is described as having involved a series of unlawful actions that commenced on 29 May 2009 (the date on which Ms Slattery made the “hold conferral” and “reversal” entries in the ICSE system) and culminated in Mrs Grass’ citizenship approval being cancelled on multiple occasions, the final occasion being on 8 April 2013.

134    The applicants’ particular assertions of misfeasance are broad-based and difficult to follow. As noted previously, the applicants’ case is focused largely on actions taken by Ms Slattery and Ms Parker, and seems only to encompass the other respondents to the extent that those persons may have been aware of, or had some involvement in, their conduct. The key allegations made in the applicants’ written submissions are that Ms Slattery:

(1)    delayed the conferral of Mrs Grass’ citizenship on 29 May 2009 without any lawful authority and contrary to ss 26 and 47;

(2)    reversed the approval of the applicant’s application for citizenship on 29 May 2009 without any lawful authority and contrary to ss 25 and 47;

(3)    in late November 2009 and early December 2009, directed other departmental officers to lie to the applicants about the reasons for the delay in Mrs Grass’ allocation to a citizenship ceremony to conceal the fact of the investigation into her citizenship approval;

(4)    referred Mrs Grass’ file to the Manager, Fraud Control and Investigation;

(5)    improperly altered Mrs Grass’ personal record in the ICSE system to change her date of birth from 13 November 1966 to 13 November 1954, contrary to s 24(1) of the Archives Act 1983 (Cth); and

(6)    wrote to Mrs Grass on 11 May 2010 in terms that demonstrated a lack of impartiality.

135    The applicants submit that Mrs Grass’ citizenship approval was unlawfully cancelled on three separate occasions. It is submitted that on each occasion, the decision-makers were cognisant that they were acting unlawfully in breach of a number of Commonwealth laws. It is submitted that:

(1)    it was known by the respondents, from the advice of their legal representatives, that all of the evidence pertaining to the citizenship application had been reviewed prior to the approval being granted on 21 May 2009;

(2)    the decision-makers tampered with Mrs Grass’ personal identifying information;

(3)    the respondents intentionally lied to the Commonwealth Ombudsman on numerous occasions to conceal the misconduct by citizenship officers of the Department; and

(4)    the respondents continued to tamper with Mrs Grass’ personal identifying information by producing an identity report that had been commissioned solely by the Citizenship Section of the Department, while in conflict with the Department’s FOI, Fraud Control and Investigations, and Visa branches.

136    As best as I can follow, the applicants’ other assertions appear to be that it was malicious or knowingly beyond Ms Slattery’s authority for her to have placed Mrs Grass’ ceremony on hold, reversed her approval in the ICSE system, and then directed staff to “deceive” her about the fact of the pending investigation. Relatedly, it appeared to be the applicants’ contention that it was improper for Ms Slattery to have formed the view she did about Mrs Grass’ date of birth, given that:

(1)    an FOI officer had granted Mrs Grass’ amendment application for her date of birth to be recorded as 13 November 1966;

(2)    the Commonwealth Ombudsman had issued a notice of proposal to record administrative deficiency in 2010 in relation to the Department’s handling of Mrs Grass’ case;

(3)    in 2011, the FOI Section challenged Ms Slattery’s amendment of Mrs Grass’ date of birth in the ICSE system;

(4)    internal legal advice within the FOI Section was to the effect that the decision to amend Mrs Grass’ date of birth could not be revisited unless it could be shown that a supporting document was fraudulent;

(5)    a partner at Clayton Utz had provided legal advice to the Department, referred to below at [139(9)], that, while there may have been a failure to take into account a relevant consideration in the cancellation of Mrs Grass’ visa, it did not give rise to a liability to compensate her for the associated costs; and

(6)    the Fraud Control and Investigations Section concluded that it would not prosecute Mrs Grass.

137    In relation to loss or damage, the applicants also made a general allegation that, from the date that Mrs Grass’ conferral of citizenship was delayed, she had been unlawfully denied her citizenship contrary to Article 25 of the International Covenant on Civil and Political Rights. The applicants’ allege that this caused:

(1)    financial disadvantage to Mrs Grass in not being able to gain employment in the Australian Public Service;

(2)    a loss to Mrs Grass’ democratic life due to her being denied the right to vote in three Federal elections and two NSW State elections, as well as the ability to stand for election; and

(3)    Mrs Grass the inability to travel freely.

138    The only further references as to injury or damage were generalised allegations that the misconduct of the Department’s officers caused the applicants and their family significant financial and emotional distress for which the Commonwealth was vicariously liable.

The evidence relied upon by the applicants

139    A great deal of departmental and inter-agency correspondence was in evidence. The applicants were asked to identify the documents upon which they rely to establish their case. They identified the following, which have been detailed to the extent necessary and relevant:

(1)    An FOI request submitted on 6 December 2002 by Mr Grass on behalf of Mrs Grass that referred to a year of birth of “54”, which was subsequently struck out and replaced with the year “66”.

(2)    An email dated 14 February 2003 from Ms Amanda Walter, Manager, FOI Section, to a Mr Damian Carmichael, who appears to be another officer within the FOI Section, which referred to exchanges between the Department and Mr Grass in relation to Mrs Grass’ date of birth.

(3)    A letter dated 20 February 2003 from Mr Grass addressed to Ms Walter, advising that the “D.O.B. on your records may be incorrect”.

(4)    Two statutory declarations made by Mrs Grass’ school principal, and a letter from the school principal, which were submitted by the applicants to Ms Slattery upon invitation to make representations about the proposed cancellation of Mrs Grass’ approval, including:

(a)    a declaration dated 28 October 2002 that Mrs Grass was a faculty member of Maugat Elementary School for the period June 1984 to March 1985, holding a temporary appointment as elementary teacher;

(b)    a handwritten letter dated 18 October 2005, which appears to state that Mrs Grass completed her primary grades at Maugat Elementary School from 1971 to 1975; and

(c)    a declaration dated 29 November 2006 that Mrs Grass attended primary grades at Maugat Elementary School from 1971 to 1975, which noted that all school records were destroyed by natural disasters.

(5)    An extract of the visa cancellation decision dated 9 November 2006 of Mrs Grass’ spouse visa, which stated (verbatim):

On 19 December 2005, the visa holder’s representative provided further submission stating further attempt was made to change visa holder’s date of birth on departmental records. Some other documentation where also provided; such as letters from the school allegedly attended in the past by the visa holder (folios 128-146, CLF2006/37440).

(6)    A letter dated 30 June 2008 from Ms Lath (whom, it may be recalled, was an officer within the FOI Section of the Department) to Mrs Grass. Ms Lath relevantly advised:

I am pleased to inform you that I have made a decision to approve your request for amendment of your name. I have changed the Department’s computer records to reflect the changes. (Copy attached).

The Department will now refer to your date of birth as 13/11/1966….

(7)    Legal advice dated 18 June 2008 provided by an officer at the Australian Government Solicitor in response to a request by the FOI Section for advice on whether the Department could revisit an amendment decision made in respect of a client’s records. In summary terms, the advice relevantly stated that a decision under s 50 of the FOI Act could only be revisited if it was based on a document that is proven to be fraudulent, in which case the Department might treat the decision as a nullity.

(8)    A letter dated 12 August 2008 from Mr George Masri to Mr Steve Ingrim titled “Notice of proposal to record administrative deficiency”. Mr Masri is identified in the letter as “Senior Assistant Ombudsman”, and Mr Ingrim is identified as the Assistant Secretary, Stakeholder Engagement & Property Branch of the Department. The letter invited comment on Mr Masri’s proposal to record administrative deficiency following the Commonwealth Ombudsman’s investigation of a complaint from the applicants on the issue of Mrs Grass’ year of birth. Mr Masri relevantly stated (verbatim):

In my view, the 2002 FOI request showed that after Ms Grass’s departure from Australia in 2002 and prior to applying for a further visa in 2003, Mr and Mrs Grass had put DIAC on notice that both years of birth pertained to the same person. …

The significance of Ms Grass’s year of birth is particularly evident in the MRT decision, which notes ‘the issue in this case substantially relates to the Applicant’s date of birth’. Further, the MRT also incorrectly noted that ‘the evidence indicates that there was no attempt to correct the documents until 2003 at the time of the lodgment of the prospective spouse visa application’. The latter statement may reflect the impact that the late release of the 2002 FOI request had upon Mr and Ms Grass’s ability to present their case at the MRT…

… I am of the preliminary view that the failure to appropriately consider the 2005 FOI request adversely impacted upon Mr and Ms Grass’s ability to answer the NOICC and present their case to the MRT.

In addition, I am of the preliminary view that the failure of the decision maker to take account of the 2002 FOI request, which was in the Department’s possession, when deciding to cancel Ms Grass’s visa in March 2006 constitutes a failure to take account of a relevant consideration.

…

(9)    A letter of advice dated 6 February 2009 from Mr John Carroll, a partner at Clayton Utz, to Ms Susan Lavalette, Acting Senior Legal Officer of the Department. The advice concerned a claim for compensation by Mr Grass for costs incurred as a result of the cancellation of Mrs Grass’ spouse visa in 2006, and compensation for stress. Mr Carroll noted (verbatim) that:

3.1    While we consider that, when taken in isolation, there may have been a legal error in the cancellation of Mrs Grass’s Spouse visa – in so far as the failure of the decision-maker to take into account Mr Grass’s 2002 FOI request may amount to a failure to take account of relevant considerations – that does not give rise to a legal liability to compensate either Mr Grass or Mrs Grass.

(10)    An email dated 23 July 2010 from Ms Rossiter (whom, it may be recalled, was Director of the FOI and Privacy Policy Section of the Department) to Ms Slattery (referred to above at [88]). Ms Rossiter relevantly stated:

Given the recent evidence leading to the citizenship decision, you raised again the possibility of reviewing the FOI amendment decision, and I have responded that we would review once the citizenship decision is upheld if it is agreed that there are sufficient grounds to warrant a review. However, in checking Ms Grass’ documents on the system today I note that her date of birth has already been changed from 1965 to 1954, by you, on 29/4/2010.

Can you please advise on what grounds you made this amendment, given there are no reasons attached to the ICSE record and that the previous change to Ms Grass’ date of birth was made by a departmental officer delegated to do so under the FOI Act?

(11)    A letter dated 21 May 2009 from the Department to Mrs Grass advising of the approval of her application. The letter relevantly stated:

The final step in becoming an Australian citizen is the making of a Pledge of commitment. You will not be an Australian citizen until you have made that pledge.

Generally, citizenship ceremonies are scheduled within 6 months of approval but waiting periods vary. The Department will write to you when arrangements have been made for you to make a pledge of commitment.

(12)    An email dated 4 August 2010 from Ms Rossiter to Ms Alexa Turner. The recipient, Ms Turner, is identified by her email signature as the Director, Ombudsman & Human Rights Coordination Section of the Department. The email relevantly stated (emphasis in the original):

As discussed with Andrew this afternoon, I understand that Mr and Mrs Grass have complained about DIAC’s decision to overturn Mrs Grass’ approval for citizenship, that DIAC did not provide Mrs Grass with sufficient information to explain the reassessment of Mrs Grass’ approval for citizenship and about the length of time it took DIAC to respond to Mrs Grass during the process.

The complaint from Mr & Mrs Grass is about Mrs Grass’ citizenship matter. FOI is a red herring and has no bearing on the complaint – it is purely part of the background. As an aside, FOI was not consulted in the preparation of the response to the Ombudsman’s original questions:

2. Does DIAC intend to reconsider its decision of 30 June 2008 about Mrs Grass’ date of birth.

Yes. In considering the cancellation of approval of Australian citizenship on character grounds, an examination will be undertaken into the 30 June 08 decision regarding Mrs Grass’ date of birth.

We do not know where this response came from and it is contrary to previous legal advice that we received in that:

‘the decision-maker would need to be reasonably satisfied, on the basis of probative evidence, that the s 50 decision was based on fraudulent information in order to ‘revisit’ the decision. The decision-maker cannot simply decide to revisit the decision merely on the basis that he or she fears that the information upon which his or her decision was based is no longer correct’.

The possibility of a review of the FOI decision was recently brought to our attention via FOI Parramatta following a query from Citizenship Parramatta. We have responded that we will await the outcome of the current citizenship process before taking any action as Mrs Grass currently has appealed to the AAT about that decision. At present the documents are alleged to be fraudulent, not proven. Indeed the department declined to prosecute. Even if the citizenship decision is upheld, it is not a clear fit with the FOI decision and may not be enough to require a review. …

(13)    An email dated 9 November 2011 from Ms Rossiter to Mr Grass, which relevantly stated:

This email is to advise that I have, today, changed Mrs Grass’ date of birth to reflect the FOI amendment decision by Reema Lath in 2008. This effectively reverses the change made by Megan Slattery in April 2010.

(14)    An email dated 27 February 2014 from Ms Rossiter to the applicants. Ms Rossiter, apparently responding to a complaint by the applicants that the Department had used Mrs Grass’ “incorrect” date of birth in correspondence to them, stated:

While citizenship has chosen to list Mrs Grass’ date of birth in the header of the document, this is not the official date of birth recorded for Mrs Grass. It may be the date of birth that Citizenship claims is the correct date of birth but it is not the date of birth on ICSE which is DIBP’s official system.

(15)    An email exchange dated 25 February 2014 between Ms Christine Johnston and Mr Robert Day. Ms Johnston is identified in that exchange as Director, Agency Accountability, Government Information Assurance and Policy, National Archives of Australia. In the first email, Ms Johnston noted that the National Archives of Australia had received a complaint from a member of the public about a possible breach of the Archives Act. She then sought information about the records amendment process used to alter Mrs Grass’ record, having regard to s 4 of that Act. Mr Day’s response of the same day relevantly stated that the case notes in the ICSE system from the citizenship application provided a clear context to the change to Mrs Grass’ details in April 2010. He noted, however, the following (verbatim):

As we discussed today, this particular case is complicated by the fact Mrs Grass’s ICSE records had previously been amended in accordance with an FOI decision. The legal test around identity in the Australian Citizenship Act 2007 is different to that in the FOI Act and, as consequence, it is sometimes possible for decision makers under the two Acts to reach different conclusions. It is our understanding that even when this occurs, the preferable position in terms of the FOI Act is for the ICSE record to reflect the FOI decision and this has been clarified with our citizenship decision makers since the particular amendment to Mrs Grass’s record. This is also the reason that the April 2010 change was ultimately reversed.

…

For the sake of completeness, I should note that the department is currently looking at options to resolve the tension between the FOI and Citizenship decisions in Mrs Grass’s case. …

(16)    A letter dated 14 November 2016 from Mr Hamish Hansford, Acting First Assistant Secretary of the Immigration and Citizenship Policy Section of the Department, to Mrs Grass, enclosing an “Identity Assessment Report” on Mrs Grass, which appeared to be in response to her request for a “‘whole of agency’ response in relation to the Department’s records” as to her date of birth. The letter noted that:

… Based on the evidence provided and subsequent Identity Assessment conducted by the Department, it is open to the Department to be satisfied that your correct date of birth is 13 November 1954, and to be satisfied that the Departmental records stating that your date of birth is 13 November 1996 are inaccurate.

(17)    Iterations of the Department’s Australian Citizenship Instructions, which provided Department officials with “guidance on policy in relation to the interpretation of, and the exercise of powers under, the [Citizenship] Act and the Regulations”.

The applicants’ evidence of loss or damage

Events in the proceeding leading to the adducing of evidence of loss or damage

140    On the first day of the hearing of the applicants’ case, 5 February 2018, it was brought to the applicants’ attention that they had not advanced any evidence in admissible form of the loss or damage that they claim to have suffered. At that stage, a key deficiency identified was that the applicants had sought to adduce expert evidence concerning psychological harm by simply tendering a report of a psychiatrist, Dr Roberts, dated 15 December 2015, without it being annexed to an affidavit or any other formal requirements having been met.

141    On the second day of the hearing, 6 February 2018, senior counsel for the respondents made it clear that their objections to Dr Robert’s report, and implicitly any other report like it, were not confined to matters of form. As senior counsel pointed out, the report itself could not be relied upon as evidence of the factual assumptions upon which it was based, and those facts would have to be proved by affidavit evidence, presumably from Mrs Grass.

142    By the fourth day of the hearing, 8 February 2018, it was apparent that the applicants were proposing to apply to reopen their case on loss or damage. I took some time, as recorded over a number of pages of transcript, to explain to them why assumed facts relied upon by an expert had to be independently proven. Mr Grass acknowledged what was being said to him at various points.

143    As foreshadowed, the applicants sought to reopen their case to adduce further evidence on loss or damage following the conclusion of the hearing on 8 February 2018. The respondents did not oppose that application being made, albeit that they sought an opportunity to make certain objections to the applicants’ proposed evidence. Leave was granted to the applicants to reopen their case on loss or damage. A further hearing was scheduled to take place on 6 June 2018.

144    By a subsequent email sent on 21 May 2018, Mr Grass sought to delay the further hearing pending an AAT merits review of a decision made on 7 March 2018 by a FOI delegate of the Department. As it turned out, the delegate had refused an application made by Mrs Grass on 3 February 2018 to change the record of her date of birth from 13 November 1954 to 13 November 1966. I declined to grant that adjournment application solely on the basis of an email, and without hearing from the respondents. The parties were advised by an email from the Court Registry that the adjournment application would be heard on 6 June 2018, and, if unsuccessful, the resumed hearing would proceed on that day.

145    On 6 June 2018, the applicants renewed their application to adjourn the resumed hearing pending the AAT merits review. That application was based on the proposition, which must be rejected, that factual findings by the AAT on Mrs Grass’ date of birth could in some way affect this Court’s independent consideration of the past events that were the subject of this case. The respondents opposed the adjournment, tendering a copy of the FOI delegate’s decision and reasons, as well as the application for merits review and related documents, which were admitted on the adjournment application. The applicants were unable to provide any sound reason for the finalisation of the hearing in this proceeding to be delayed pending the outcome of the AAT proceedings. Their adjournment application was refused.

Evidence adduced on loss or damage

146    The evidence ultimately sought to be adduced by the applicants on loss or damage was in the form of three affidavits, two having been affirmed by Mr Grass and the third sworn by Dr Roberts.

147    The affidavit from Dr Roberts, sworn 9 March 2018, annexed his report dated 15 December 2015 (being the same report that was rejected on 5 February 2018). The affidavit addressed the formal shortcomings identified when the report was rejected. However, it did not address the substantive associated defect of not proving separately the assumed facts emanating from Mrs Grass upon which the opinion was given. As noted above, the applicants were alerted to this requirement in open court by the respondents on 6 February 2018, and I explained the requirement to them in detail in court on 8 February 2018. Despite that, no evidence was sought to be adduced proving the assumed facts relied upon by Dr Roberts. Indeed, Mr Grass seemed to suggest that he had made a decision not to adduce such evidence because he was unwilling to have Mrs Grass made available for cross-examination. Accordingly, the affidavit of Dr Roberts was rejected as being irrelevant without the necessary factual substratum having been established.

148    The first affidavit from Mr Grass, affirmed 13 March 2018, was read subject to paragraphs 3 and 4, which were conclusory in form and treated as submissions, and a phrase in paragraph 11, which was also treated as a submission. Senior counsel for the respondents addressed the Court to the effect that much of the material annexed to this affidavit concerned costs incurred in this proceeding, and so could not be evidence of loss or damage if liability were established. There was some very limited evidence of legal expenses incurred as a result of Mrs Grass’ citizenship being cancelled the first time. However, the problem with that head of damage is that s 25(5) of the Citizenship Act provides that if the Minister cancels a citizenship approval, the approval is taken never to have been given. Because the second cancellation of Mrs Grass’ citizenship approval has not been overturned, she has never, at law, had the benefit of an approval. No loss or damage can therefore arise from the first cancellation decision that was overturned. It follows that Mr Grass’ first affidavit does not prove any loss or damage in the event that misfeasance in public office were to be established.

149    Mr Grass’ second affidavit, affirmed 19 March 2018, annexed four documents but was otherwise without content. Annexure A was in the form of 21 paragraphs of submissions by Mr Grass and was received as a submission, rather than as evidence. Annexure B was a 1989 Monash University Law Review article by (Professor) Enid Campbell, and was received as an article, rather than as evidence. Annexure C was an undated letter from Professor Kim Rubenstein to the Minister, without enclosures, making submissions in support of an application made under s 37 of the Citizenship Act for a notice to issue as to Mrs Grass’ identity. That undated letter was apparently relied upon by the applicants to support various factual assertions contained within it. As that was not an admissible means to prove any fact relevant to loss or damage, that letter was rejected. Annexure D was a written legal advice from Professor Rubenstein, which, again, was not admissible to prove any fact relevant to loss or damage. Accordingly, it was also rejected.

150    The applicants therefore had no evidence of loss or damage.

151    It should be noted that the respondents also submit in respect of Mr Grass that he is unable to pursue any claim for the tort of misfeasance in public office because no public power was ever exercised in respect of him by any of the relevant Commonwealth officers. The better view is that this submission is well-founded and that Mr Grass is not affected in any relevant way. Indeed, the allegations against each respondent in the amended statement of claim in respect of the second form of the tort are framed in terms of harming “the Applicant, Mrs Grass”. However, it is not necessary for me to reach a final conclusion on this because even if Mr Grass did somehow have a cause of action based on some collateral harm as Mrs Grass’ husband, he would have failed in that cause of action by reason alone of providing no evidence of loss or damage going to either liability or quantum.

The tort of misfeasance in public office

152    The tort of misfeasance in public office is concerned with the misuse or abuse of a public power or duty: Sanders v Snell [1998] HCA 64; 196 CLR 329 (Snell HCA) at [37]-[39]. In Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 at 190H, Lord Steyn identified the rationale for the tort as being that in a legal system based on the rule of law, executive or administrative power may be exercised only for the public good and not for ulterior and improper purposes.

153    After the decision in Snell HCA, the matter returned to the Full Court of this Court in Sanders v Snell (No 2) [2003] FCAFC 150; 130 FCR 149. The Full Court considered the authority to that time, summarising the effect of Northern Territory v Mengel (1995) 185 CLR 307 and Snell HCA (at [95], with some adjustment for apparent formatting errors in the report in 130 FCR 149) as being:

… clear from their Honours’ judgment [in Snell HCA], read with what was said in Mengel, that misfeasance in public office could not be made out unless there were a finding of one or other of the following states of mind on the part of Sanders:

[a]    an actual intent to cause injury; or

(b)    actual knowledge that his action was beyond power or reckless indifference to that possibility coupled with knowledge of or reckless indifference to the possibility that his action would cause or be likely to cause injury.

154    Both forms of the tort reflect the mental states that courts have accepted as being inconsistent with an honest exercise of power by a public officer: see also Farah Custodians Pty Limited v Commissioner of Taxation [2018] FCA 1185, per Wigney J at [97]-[111].

155    It is important to observe in this case that liability for the tort cannot be established by aggregating the acts and knowledge of various officers: see Farah at [108], citing Leinenga v Logan City Council [2006] QSC 294 at [66]; Chapel Road Pty Ltd v Australian Securities Investments Commission (No 10) [2014] NSWSC 346; 285 FLR 14 at [77], and Deputy Commissioner of Taxation v Frangieh (No 3) [2017] NSWSC 252; 321 FLR 1 at [117].  

156    Nor can a case of misfeasance in public office be built upon a foundation that is a composite of the conduct of a number of individual officers: see Farah at [108]; Moder v Commonwealth of Australia [2012] QCA 92; 261 FLR 396 at [73]; MJL v the State of Western Australia [2015] WASC 348 at [87]. The nature of the tort of misfeasance in public office means that the mental and physical elements of the tort ought to coalesce in one individual: see Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53; 2 NZLR 679 at [97].

157    The elements of the tort derived from the leading authorities above are considered in detail below.

A public officer

158    An essential element of the tort is that the alleged tortfeasor must be the holder of a public office. In this context, the concept of an “office” connotes an official position to which continuing functions or duties of a public nature are assigned: Leerdam v Noori [2009] NSWCA 90; 227 FLR 210 per Spigelman CJ at [16]. There is no authoritative statement of a test for determining what constitutes a public office for the purposes of the tort, and in many cases the answer will be obvious. It is essential, however, to identify a relevant power attached to the public office: Canon v Tahche [2002] VSCA 84; 5 VR 317 at [28]; Leerdam at [6] per Spigelman CJ and at [48] per Allsop P. As Spigelman CJ observed in Leerdam at [6], the identification of a power to act, which has or has not been exercised, is a necessary step in determining whether the conduct complained of occurred in purported performance of the functions of a public office.

The exercise or purported exercise of a public power or duty

159    The second element of the tort is that the defendant must have engaged in conduct that involves the exercise or purported exercise of a public power or duty.

160    As Lord Bridge observed in Calveley v Chief Constable of Merseyside [1989] AC 1228 at 1240:

… the tort of misfeasance in public office … must … involve an act done in the exercise or purported exercise by the public officer of some power or authority with which he is clothed by virtue of the office he holds …

161    This requirement has been expressed in different ways in the authorities. In Canon, the Victorian Court of Appeal spoke at [28] of “abuse by the holder of a public office of a public power or one which must be exercised for the “public good”, and which is attached to the office” (footnote omitted). And in Sanders v Snell (No 2) at [96], the Full Court of this Court observed that “the impugned act must have involved the exercise of power as a public officer”.

162    More recently, Bathurst CJ queried in Obeid v Lockley [2018] NSWCA 71; 355 ALR 615 whether it is necessary for the power to be expressly attached to the particular public office. At [113]-[114], his Honour noted:

It may be that, on the present state of authorities in this country, the concept of “public office” is not as broad as suggested in some of the more recent United Kingdom authorities. The concept clearly would not include all public employees, particularly those with minimal responsibilities. However, it does not seem to me that the tort of misfeasance in public office is confined only to a person appointed to a particular statutory office which expressly confers statutory power and responsibilities … Such a narrow definition of “public officer” would defeat the rationale of the tort as expressed by Lord Steyn in Three Rivers at AC 190, that “executive and administrative power ‘may be exercised only for the public good’ and not for ulterior or improper purposes”.

In these circumstances, it seems to me that a “public officer” would at least include persons who, by virtue of the particular positions they hold, are entitled to exercise executive powers in the public interest. If such an entitlement is conferred on them and they misuse the power, they may have committed the tort and be liable for damage which results from their conduct.

163    Not everything that a public officer does during the course of carrying out the functions of his or her office will amount to a relevant exercise of a public power or duty. The following authorities identified by the respondents indicate certain practical limitations on what constitutes the exercise of a public power:

(1)    in Leinenga at [75], Mullins J found that a council employee providing information to an applicant as to what was required to obtain final approval of construction works was not purporting to exercise any public power;

(2)    in Calveley at 1240C-F, the House of Lords found that it did not involve any exercise or purported exercise of public power for a police officer to make an allegedly inaccurate report to the deputy chief constable, that report having resulted in the suspension of another officer (but that if the deputy chief constable had acted maliciously when he suspended the officer, that would have been capable of constituting the tort); and

(3)    in Emanuele v Hedley (1998) 179 FCR 290 at [34], the Full Court of this Court found that the making of an internal report by an official to his superior officers did not involve the exercise or purported exercise of a power or authority of his public office – “[t]hey were simply the actions of an employee reporting an alleged event to superior officers”.

164    In Nyoni, North and Rares JJ noted at [112] that in cases such as Calveley and Emanuele, the principle appears to be that:

… the action of making or furnishing internal communications or reports by employees to superiors within a governmental institution may not amount to an act done in the exercise of the author’s public office. That is, such an act, whatever may be its ultimate influence or impact on those who are the superiors of the actor, does not have an immediate or direct consequence on the person who is, or in due course comes to be, injured by it. …

165    In Nyoni, the chief executive officer (CEO) of a shire council had used his council email account, copying in all other councillors, to make complaints to State government agencies about the appellant. That conduct was found to have been actuated by malice, but the primary judge nevertheless rejected the appellant’s claim of misfeasance on the basis that there had been no exercise of a power in public office. On appeal, a majority of the Full Court (North and Rares JJ, with Dowsett J dissenting) overturned this conclusion. Their Honours characterised the CEO’s actions as involving the use of his office and its authority to make an official complaint, with the direct consequence that other authorities initiated investigative and disciplinary actions in relation to the appellant. Distinguishing Calveley and Emanuele, their Honours considered that the CEO’s exercise of power was complete when he set those processes in motion. It may also be seen from this case that an express statutory power may not be necessary for there to be an exercise of power for the purposes of the tort: see [108]-[114] per North and Rares JJ, and [160] per Dowsett J.

The tortfeasor must have acted with the requisite intent

166    As noted above, there are two ways in which the tort of misfeasance in public office may be committed. Each is considered below.

Targeted malice

167    The first form of the tort, involving “targeted malice”, requires an intentional infliction of harm, in the sense that infliction of harm is the actuating motive: Mengel at 347. In this form of the tort, it is the fact that a public power is exercised for an improper or ulterior motive that gives it the character of being unlawful.

168    In Nyoni, the Full Court rejected the proposition that there will be no liability for a malicious act by a public officer where the officer in question, or another officer in their position, could otherwise validly have decided to do the same act for lawful and proper purposes. North and Rares JJ considered this proposition by reference to the following statement of Harper J in Grimwade v Victoria (1997) 90 A Crim R 526 at 566 (emphasis added by the Full Court):

Malice of itself is insufficient unless the exercise of the power is only valid if done without malice: a parking officer may be as malicious as he likes in giving a parking ticket to his worst enemy whose vehicle is illegally parked. And the fact that the officer intends to cause harm (by fixing the enemy with an obligation to pay the fine) is wholly beside the point.

169    Their Honours considered that Harper J’s example was flawed because it overlooked the causative role of the officer’s intention, which would be to injure the “enemy” as opposed to carrying out his lawful duties. At [96], their Honours proceeded to observe that:

Public power exists to be exercised for public, not private, purposes: Futuris at [11]. A public officer can use, with a proper or improper purpose, a power to make a grant to persons of public money, a licence or authority. The improper purpose, such as to do a favour for a friend, to give a benefit to a relative or to give the quid pro quo for a bribe, is an abuse of the power even though that or any other officer could have decided to do the same act for lawful and proper purposes. Clearly enough, it will be a very rare case in which an officer, such as Harper J’s parking officer, will be proven to have acted for an improper purpose in giving a ticket to a person who both illegally parked a vehicle and coincidentally is the officer’s enemy. But, the difficulty of imagining a particular case should not obscure the commonplace experience that persons entrusted with powers can and do misuse them.

170    In Sanders v Snell (No 2) at [108], the Full Court observed that “targeted malice” required, in that case, a finding of an intention to exercise the power “as a means of inflicting harm”. The intention to harm, it considered, must be the “actuating motive”.

Acting beyond power

171    The second form of the tort is committed if a public officer performs an invalid act with knowledge of, or reckless indifference to: (a) the invalidity of their conduct; and (b) the likelihood that the conduct would cause injury or damage to the plaintiff: Sanders v Snell (No 2) at [95].

172    As may be seen, this form of the tort requires that the impugned act of the public officer must involve invalidity arising from a lack of authority or some other administrative law defect. However, misfeasance in public office is not established simply by an act of a public officer which he or she knows is beyond power and which results in damage: Mengel at 347. Rather, liability is confined to circumstances where the public officer also knows, or is recklessly indifferent to the fact, that his or her conduct is likely to cause harm to the claimant.

173    There remains as a possible live issue in the jurisprudence as to whether this second form of the tort, in respect of the likelihood that the conduct would cause injury or damage, extends to an objective foreseeable risk of injury or damage: see Obeid, which is the subject of a High Court special leave application to be heard on 16 November 2018; see also Farah at [129]. At [151]-[171] in Obeid, Bathurst CJ considered the correct approach to be that the second form of the tort requires more than an objective foreseeable risk; it requires the public official to be aware of, or recklessly indifferent to, a likely risk of harm. Beazley P agreed with Bathurst CJ. Leeming JA also agreed, and considered the issue in some detail at [213]-[243]. As will be evident from the discussion below, it would only be necessary to reach a concluded view on that issue if an invalid act were established.

Damage

174    The claimant must establish that he or she has suffered loss or damage caused by the relevant public officer’s unlawful or invalid act. Damage is “the gist” of the tort of misfeasance in public office, and the claimant will fail if he or she cannot prove it: Watkins v Home Secretary [2006] 2 AC 395 at [79] per Lord Carswell, quoting Heuston RFV and Buckley RA, Salmond & Heuston on the Law of Torts (21st Ed, Sweet & Maxwell Ltd,1996) p 6.

175    In Nyoni, the majority of the Full Court confirmed at [97], citing Watkins at [7] and [27], that the claimant must have suffered either special damage or “material damage” such as financial loss, physical or mental injury, including recognised psychiatric injury (but not merely distress, injured feelings, indignation or annoyance).

Consideration

176    Before turning to the separate claims against each of the respondents, it is necessary to make several observations about the general problems with the applicants’ case.