FEDERAL COURT OF AUSTRALIA

Gao v Federal Privacy Commissioner [2002] FCA 823

ADMINISTRATIVE LAW – appeal under s 11(1)(c) Administrative Decisions (Judicial Review) Act 1977 (Cth) for extension of time – no grounds of review disclosed – proceeding an abuse of process.

PRIVACY LAW – alleged contravention of Information Privacy Principle (11)(1)(e) of the Privacy Act 1988 (Cth) – where government department made aware of false information provided on birth certificate – disclosure of information reasonably necessary for enforcement of the criminal law – no consent to disclosure of information required when disclosure reasonably necessary for enforcement of the criminal law – Information Privacy Principles not directly actionable under the Privacy Act 1988 (Cth) in any event.

Administrative Decisions (Judicial Review) Act 1977 (Cth):  s 11(1)(c)

Federal Court Rules:  O 20 r 2(1)

Privacy Act 1988 (Cth):  s 14

Gao v Federal Privacy Commissioner [2001] FCA 1683, followed

Gao v Federal Privacy Commissioner [2002] FCAFC 128, followed

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, applied

Lucic v Nolan (1982) 45 ALR 411, applied

PENG YUAN GAO v FEDERAL PRIVACY COMMISSIONER & ORS

V 298 of 2002

GOLDBERG J

19 JUNE 2002

MELBOURNE

THE COURT ORDERS THAT:

1.         The application filed on 17 May 2002 is dismissed.

2.         The applicant pay the respondents’ costs of the proceeding.

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

REASONS FOR JUDGMENT

1                     On 17 May 2002 the applicant applied to the Court pursuant to s 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“AD(JR) Act”) for an extension of time within which to bring an application to review certain decisions made under the provisions of that Act.  The applicant identified those decisions as follows:

“1.       DIMA was told not to disclose the privacy by applicant while the information collected for the purpose of verifying that Yu Jing ZHU [ZHU] committed the offence at Migration Act 1958, but DIMA was knowingly to disclose the privacy after 7 days collected information and take advantage of the privacy making application on behalf of applicant to another for different purpose without consent from applicant.  FPC alleged that to disclose the privacy in order to another to investigate whether a criminal offence had been committed or not.  So for the offence has not been prosecuted at all if it was criminal offence.

2.         ZHU, on 9^th February 1999, gave testimony that she has never seen $140,000 cheque and etc to Family Court.  Evidence produced by Bank that that ZHU had transferred $140,000 to name of herself on 23^rd November 1996.  With respect of the fact, nature of ZHU, evidence produced before them and etc firstly AGD alleged that the offence has insufficient evidence and has not prima facie case; after more evidence were before them, secondly AGD alleged that Privacy Act 1988 prevent them from divulging how the offence being prosecuted to applicant; while the application before the Court, thirdly AGD alleged that the offence has connection with family matter should not prosecuted.  AGD took the advantage of the said to ignore the offence.

3.         Between April 1996 and February 1998, ZHU took advantage of that applicant sponsored her to remain in Australia permanently and was bona fide to the sponsorship to deceive plaintiff into believing that she would spend rest of her life with him, and would bear his children for her permanent visa granted by the DIMA, and that she would be on behalf of applicant to invest the said fund in Shanghai real estate for deceiving the fund from applicant.  While the sponsorship ZHU born another child knowingly, and deceived the said fund away, and was in breach of constructive trust sold applicant flat and also transferred sale proceeds to overseas, and etc.  ZHU made use of deceiving marriage with applicant for gaining her permanent visa in Australia, and committed the offence at Migration Act 1958.  But DIMA took the advantage of Privacy Act 1988 to prevent them from divulging how the offence being prosecuted to applicant for not to prosecute the offence.”

2                     The respondents to the application are the Federal Privacy Commissioner, Robert Garran Offices of the Attorney‑General’s Department and the Minister for Immigration and Multicultural Affairs.  It appears from the matters and circumstances to which I shall refer that the following decisions or conduct are to be distilled from the application: 

(1)        a disclosure by Mr Paul Johnson of the Department of Immigration and Multicultural Affairs (“DIMA”), as it was then known, to the Registry of Births, Deaths and Marriages (“the Registry”) of false information provided to the Registry in relation to the father of a child, Vicky Gao, born 2 February 1998;

(2)        a decision by the Attorney‑General’s Department not to prosecute or not to recommend to the Director of Public Prosecutions to prosecute Ms Yu Jing Zhu for an offence in relation to the transfer of $140,000 from a bank account;

(3)        a decision by DIMA not to disclose to the applicant decisions it had made in relation to allegations that Ms Zhu had breached provisions of the Migration Act 1958 (Cth) and should be prosecuted; and

(4)        a decision by the Federal Privacy Commissioner not to proceed any further with the claim made by the applicant in relation to the disclosure by Mr Johnson.

3                     On 13 June 2002 the respondents filed a notice of motion in the Court seeking orders pursuant to O 20 r 2(1) of the Federal Court Rules that the application be dismissed on the grounds that:

(a)        no reasonable cause of action is disclosed;

(b)        the proceeding is frivolous or vexatious; or

(c)        the proceeding is an abuse of the process of the court. 

4                     The application and affidavit in support filed by the applicant are not easy to understand, but the applicant expanded on them in oral submissions.  I have been assisted in my understanding of the applicant’s case and the facts and circumstances on which he relies by reference to the decision of Ryan J on 16 November 2001 in Gao v Federal Privacy Commissioner [2001] FCA 1683.  An appeal by the applicant against that decision was dismissed by the Full Court on 10 May 2002 (see Gao v Federal Privacy Commissioner [2002] FCAFC 128).  I have also been assisted by an affidavit filed by the respondents’ solicitor who has had access to a number of relevant files which bear upon the issues raised by the applicant. 

5                     The application by the applicant raises substantially the same issues as were raised before Ryan J, although the applicant now seeks leave to extend the time under s 11(1)(c) of the AD(JR) Act within which he can apply to the Court to review the decisions and conduct to which I have referred.

6                     The applicant was for some time in a de facto relationship with Ms Zhu whom he sponsored for permanent residence in Australia on the basis of their relationship.  On 2 February 1998 Ms Zhu had a child, Vicky Gao, who was registered at the Registry as the child of Ms Zhu and the applicant.  At some stage between the birth of the child and in or about May 1999, the relationship between the applicant and Ms Zhu broke down.  On 18 May 1999 the Family Court ordered that DNA testing be undertaken to determine whether the applicant was the father of Vicky Gao.

7                     On 16 June 1999 the applicant met with an officer from what had become the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) Investigation Section, Mr Paul Johnson.  The applicant made allegations in relation to fraudulent conduct by Ms Zhu and the provision of false information in order to obtain permanent residence.  The applicant’s allegations included an allegation that Ms Zhu had provided false information on Vicky Gao’s birth certificate claiming that he was the father of Vicky Gao, and the applicant produced a DNA test report showing that Vicky Gao was not his child.

8                     On 23 June 1999 Mr Johnson informed the Registry of the false information which had been provided in relation to the father of Vicky Gao.  He wrote to Mr Barry O’Connor at the Registry in the following terms:

“Regarding the birth certificate of Ms. Vicky GAO. …

Would you consider prosecution action against Ms ZHU Yu Jing, based on provision of false information to the Births Deaths and Marriages Registry, under the Births Deaths and Marriages Registry Act?”

The applicant contends that that disclosure was a breach of Information Privacy Principle 10(1)(e) of the Information Privacy Principles enacted under s 14 of the Privacy Act 1988 (Cth).  A more appropriate principle for the applicant is probably Principle 11(1)(e), but nothing turns on this distinction.

9                     On 28 June 1999 the applicant wrote to the DIMIA and made a number of allegations of fraudulent conduct by Ms Zhu, including the provision of false information that the applicant was the father of Vicky Gao to various agencies including the Registry.  On 24 August 1999 the Registry wrote to the applicant and informed him that, as a result of the information provided by Mr Johnson, his name had been removed from the register as the father of Vicky Gao.  The applicant contends that this removal was done without his consent.

10                  On 22 September 1999 the applicant made a complaint to the Commonwealth Ombudsman about Mr Johnson’s disclosure, and four days later, on 26 September, he made a complaint to the Federal Privacy Commissioner in relation to the same disclosure.  On 10 March 2000 the Federal Privacy Commissioner wrote to the applicant to inform him that the disclosure that formed the basis of his complaint came within Information Privacy Principle 11(1)(e) of the Privacy Act, and that the Commissioner considered it appropriate that his discretion be exercised not to investigate the complaint further.

11                  Information Privacy Principle 11(1)(e) provides:

“A record‑keeper who has possession or control of a record that contains personal information shall not disclose the information to a person, body or agency (other than the individual concerned) unless:

…

(e)        the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue.”

The applicant was given an opportunity to make further comments before the investigation was discontinued.  The applicant on 18 March 2000 replied to the letter of 10 March 2000 with further comments.  On 18 July 2000 the Federal Privacy Commissioner wrote to the applicant again, confirming his view that the disclosure by the DIMIA to the Registry came within Information Privacy Principle 11(1)(e) of the Privacy Act, and that in those circumstances the applicant’s consent was not specifically required to enable such disclosure.  The Federal Privacy Commissioner informed the applicant that he considered the matter to be closed.

12                  I turn to the issues involving the Attorney‑General’s Department.  As appears from the judgment of Ryan J, the applicant claimed that after he and Ms Zhu began to live together he raised a bank draft from the Commonwealth Bank in the sum of $140,000 in their joint names for the purchase of a property in Shanghai.  According to Ryan J, Ms Zhu travelled to China for that purpose, but according to the applicant, the purchase was not effected as agreed.  Ryan J noted at [4] and [5]:

“[4.]   In any event, Ms Ju [sic] 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.”

13                  On 18 April 2000 the applicant wrote to the Attorney‑General’s Department alleging that Ms Zhu had committed perjury in family law proceedings.  On 20 June 2000 Ms Turner from that Department notified the applicant that, following assessment of the evidence, the Department had concluded that the evidence provided was not sufficient to establish a prima facie case of perjury.  The applicant wrote again to the Attorney‑General’s Department on 13 July 2001 reiterating his allegations of perjury and providing further evidence, but that was not sufficient in the view of Ms Turner to provide evidence of a prima facie case of perjury.

14                  There was further correspondence between Ms Turner and the applicant in relation to the issue of perjury and also in relation to the issue of the bank draft of $140,000 and the transfer of the property at Thornbury.  Ms Turner informed the applicant in July 2001 that, in relation to those two issues, the applicant may have additional evidence that would enable those issues to be reassessed.  She informed the applicant that if such material was provided, the matter would be reassessed, but it did not necessarily mean that the information requested would be sufficient to establish a prima facie case in relation to those two issues.

15                  The applicant provided further information, but ultimately on 30 August 2001 Ms Turner informed the applicant that the Attorney‑General’s Department’s further assessment of the two issues was now complete, but that the provisions of the Privacy Act prevented the disclosure of information regarding the findings of its investigations, and they could not be disclosed to the applicant. 

16                  On 4 October 2001 the applicant filed an application in the Federal Court against the Federal Privacy Commissioner, the Attorney‑General’s Department and DIMA.  By that application the applicant sought compensation from DIMA, now called DIMIA, in respect of the claimed breach of the Privacy Act, the prosecution or investigation by the DIMIA of Ms Zhu’s claimed deceptive conduct in relation to her application for permanent residence, and the prosecution of Ms Zhu for perjury.

17                  It will be recalled that the Federal Privacy Commissioner had made a decision not to take the applicant’s complaint in relation to the breach of the Information Privacy Principles any further, and that the applicant had been informed of that decision on 18 July 2000.  The application was dismissed by Ryan J and his Honour’s reasons are set out in pars [7] to [11] of his Honour’s reasons for judgment:

“[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) Act against 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) Act was 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) Act or 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.”

18                  The Full Court saw no error in the approach of Ryan J.  Having considered the matter, I am satisfied that the application discloses no reasonable cause of action, that it is frivolous and vexatious and that it is in part an abuse of process of the Court as the matters raised have already been considered by Ryan J whose reasons were not disturbed on appeal. 

19                  I turn to the relief sought against the Federal Privacy Commissioner in relation to the decision of 18 July 2000, that the applicant’s complaint not be investigated further.  There have been many decisions, not only in this Court but in other courts, about the principles to be applied as to whether applications to extend time for lodging documents and filing notices of appeal and similar applications should be allowed.  A number of those relevant principles have been collected and restated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348‑349.  In particular his Honour’s fifth principle was:

“The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.”

Before I consider how I should apply the relevant principles to the matter, I also note the observation made by Fitzgerald J in Lucic v Nolan (1982) 45 ALR 411 at 416 where his Honour said:

“[I]t must, in my opinion, be accepted that it has deliberately been made the prima facie rule that proceedings not commenced in time should not be entertained.”

20                  In my view the application and the affidavit filed by the applicant do not disclose grounds of review under the provisions of the AD(JR) Act, which does not allow merits review as such.  A ground of review must be disclosed under s 5 of the AD(JR) Act.  Neither the application nor Mr Gao’s affidavit particularise facts or other matters or circumstances which are capable of constituting the grounds of review which are identified in his application against the Federal Privacy Commissioner.  I repeat the observation of Ryan J in the previous decision at par [7] and apply it to the application before me:

“[T]he 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 …” 

In those circumstances, it would be inappropriate to extend the time within which to bring the application for review of the decision of the Federal Privacy Commissioner as, on the material before me, no grounds of review are disclosed.  It is for that reason that I would not allow an extension of time to bring a proceeding in relation to the decision of the Federal Privacy Commissioner.

21                  I turn to the relief sought against the Attorney‑General’s Department.  This claim raises the same issues as were considered by Ryan J in pars [8] and [9] of his earlier decision.  I consider it is an abuse of the process of the Court for those issues to be agitated again in this proceeding against the Attorney‑General’s Department.  In any event, even if there was a decision in respect of which review under the AD(JR) Act might lie - and I doubt that there is one - no grounds of review are disclosed in the applicant’s material.

22                  I turn to the relief sought against the DIMIA.  Ryan J has already found in par [10] of his reasons that no complaint can be made directly to the Federal Court that the DIMIA breached the Privacy Act or the Information Privacy Principles.  As Ryan J pointed out, complaints about interference with privacy must be made to the Privacy Commissioner under s 36 of the Privacy Act.  Breach of the Privacy Principles is not directly actionable under the Privacy Act (see for example Ibarcena v Templar [1999] FCA 900).

23                  The Court’s only jurisdiction – that is the jurisdiction of this Court - is under s 55A of the Privacy Act to enforce determinations made under the Act.  That is not an application which is sought in the present proceeding.  No error of law has been shown arising out of, or in relation to, what is said against the Minister and the DIMIA, and no order in the nature of judicial review is available.  There is also no basis to review the conduct of the DIMIA in relation to the issue of whether Ms Zhu should be prosecuted under the Migration Act.  There is not disclosed in any of the circumstances raised by the applicant in relation to that matter any basis upon which an application in relation to the DIMIA could be made the subject of judicial review under the provisions of the AD(JR) Act.

24                  It accordingly follows from the reasons to which I have referred that there is no basis for the substantive claims which are sought to be agitated under the provisions of the AD(JR) Act and accordingly the application for leave to extend time to bring any proceedings under that Act in respect of the decisions and conduct of the respondents referred to in the application.

25                  The order of the Court will be:

1.         The application filed on 17 May 2002 is dismissed.

2.         The applicant pay the respondents’ costs of the proceeding.

Associate:

Dated:              27 June 2002