FEDERAL COURT OF AUSTRALIA

Gao v Federal Privacy Commissioner [2001] FCA 1683

PENG YUAN GAO  -v-  THE FEDERAL PRIVACY COMMISSIONER,  ATTORNEY GENERAL'S DEPARTMENT  and THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 1068 of 2001

RYAN J

16 NOVEMBER 2001

MELBOURNE

THE COURT ORDERS:

1.         THAT the application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     In this matter the applicant, on 4 October 2001, filed an application to which there were three respondents, the Federal Privacy Commissioner (“the FPC”), the Attorney-General's Department, (“the AGD”), and the Minister for Immigration and Multicultural Affairs, (“DIMA”).  The relief claimed in the application is as follows:

(1)       That DIMA paid [sic] compensation in respect of the breach of the Privacy Act 1988 to the applicant [the amount of compensation is at discretion of the Federal Court]. 

(2)       The DIMA prosecutor investigate that Yu Jing Ju had taken the advantage of deceiving marriage to deceive sponsor and the DIMA for her permanent resident in Australia. 

(3)       Yu Jing Ju committed perjury offence and should be prosecuted. 

(4)       There is no reason to prevent the applicant from knowing the finding of paragraph 2 and 3 from the DIMA and Robert Garran Offices of Attorney-General's Department.

2                     The grounds on which that relief is claimed are said to be set out in the accompanying affidavit.  However, the affidavit filed on behalf of the applicant is not in the usual form and does not contain a narrative or other coherent recital of the facts on which the applicant relies.  I have been assisted in ascertaining the factual background by an outline of submissions filed on behalf of the respondents in support of their motion that the substantive application be dismissed as disclosing no reasonable cause of action.  The factual background has also been elaborated in oral submissions which I have received today from Mr Gao and which have been supplemented by the provision of copies of various orders made in the Family Court.

3                     It seems that Ms Ju travelled to Australia with her second husband, a resident of Hong Kong, and shortly afterwards decided not to return to Hong Kong with him.  Thereafter, the applicant sponsored her application for permanent residence in Australia.  It seems that, for a short time at least, she lived with the applicant.  The applicant claims that he raised a bank draft from the Commonwealth Bank in the sum of $140,000 in the joint names of himself and Ms Ju for the purchase of a property in Shanghai.  Ms Ju travelled to China for that purpose but, according to the applicant, the purchase was not effected as agreed.

4                     In any event, Ms Ju returned pregnant to Australia and persuaded the applicant to transfer into the joint names of himself and Ms Ju, a property at Thornbury.  Thereafter, again according to the applicant, Ms Ju arranged a sale of that property without his knowledge and transferred the net proceeds of sale to China.  The applicant then commenced proceedings in the County Court of Victoria but Ms Ju persuaded him to effect a reconciliation.  About a month later she made a claim on him for child support.  That prompted the applicant to apply to the Family Court for access to the child, Vicky Gao, who had been born to Ms Ju.

5                     Later the applicant obtained from the Family Court an order restraining Ms Ju from taking the child, Vicky, overseas.  Ms Ju was intercepted in Sydney and in subsequent proceedings denied receipt of the bank draft for $140,000.  However, after further proceedings, it was determined, as a result of a paternity test ordered by the Family Court, that the applicant was not the father of the child formerly known as Vicky Gao.  The applicant alleges that, in the course of the proceedings in the Family Court, Ms Ju committed perjury in various respects.

6                     It is convenient to deal separately, and in order, with the claims made against each of the respondents.  I deal first with the Privacy Commissioner.  The applicant's complaint against this officer seems to be that the Commissioner wrongly decided on 18 July 2000 to reject a complaint made by the applicant under the Privacy Act against DIMA for disclosing, in contravention of the Privacy Act, to the Registry of Births, Deaths and Marriages, information about the paternity of the child Vicky Gao, who had been born to the applicant's former de facto spouse Yu Jing Ju.

7                     The Commissioner apparently took the view that the disclosure to the Registry was “necessary for the enforcement of the criminal law” within the privacy principle embodied in s 11(1)(e) of the Privacy Act.  At all events, the application in its present form does not disclose how a review in this Court of the Commissioner's decision is said to be available under the Administrative Decisions (Judicial Review) Act (“the AD(JR) Act”).  Even if the application had identified an alleged error of law or other ground of review afforded by the AD(JR) Act, it would still be more than twelve months out of time.  I shall, therefore, dismiss the application against the Privacy Commissioner without prejudice to the applicant's rights, if so advised, to apply for an extension of time in which to bring an application under the AD(JR) Actagainst that officer.

8                     I deal second with the respondent named as “the Attorney-General's Department”.  The applicant contends that Yu Jing Ju had committed perjury in the Family Court in relation to, amongst other things, the Commonwealth Bank draft.  He complained to that effect to the Attorney-General’s Department but, after investigation, that Department declined to recommend to the Commonwealth Director of Public Prosecutions that Ms Ju be prosecuted for perjury.  In a letter to the applicant dated 30 August 2001 the Department advised the applicant that it was precluded by the Privacy Act from disclosing to him what had been revealed by its investigation.

9                     Assuming in the applicant's favour that the making of any decision within the meaning of the AD(JR) Actwas reposed in the Attorney-General's Department rather than the Director of Public Prosecutions, no basis has been shown on the face of the application for this Court’s reviewing that decision under the AD(JR) Actor otherwise within the jurisdiction of this Court. 

10                  I deal thirdly with the application against DIMA.  As I understand it, the complaint against this department is for contravention of the Privacy Act on account of its conduct in conveying the results of the paternity test to the Registry of Births Deaths and Marriages.  However, that complaint cannot be made directly to this Court.  It must be made to the Privacy Commissioner under s 36 of the Privacy Act.  As already noted in relation to the Privacy Commissioner, a decision by that officer rejecting such a complaint is reviewable by this Court under the AD(JR) Act but no right of review is exercisable against the agency which is alleged to have infringed the privacy of a complainant.  Furthermore, I reiterate that the time within which a review of the applicant's complaint to the Privacy Commissioner against DIMA has long since expired.

Conclusion

11                  For the reasons which I have endeavoured to explain, the application in its present form does not disclose a reasonable cause of action and must be dismissed.  I have adverted to the possibility that the action might be reinstated or recommenced in a different form, particularly if leave is sought for an extension of time within which to bring certain applications under the AD(JR) Act.  At present I make no order as to the costs of the present application but I indicate that if the applicant should seek to revive the substance of these proceedings in this Court or elsewhere, the fact of these proceedings and this order, which I make today should be taken into account in the exercise of any discretion as to the costs of the subsequent proceedings.  Accordingly, the only order of the Court which is made today is that the application be dismissed.

Associate:

Dated:              16 November 2001