Federal Court of Australia

Singh v Australian Information Commissioner [2024] FCA 1380

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review is dismissed.

2.    The applicant pay the first respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

1    This is an application for judicial review of a decision of a delegate of the Australian Information Commissioner under ss 41(1)(da) and 41(2)(a) of the Privacy Act 1988 (Cth) not to investigate further the applicant’s complaint that the Department of Home Affairs had interfered with his privacy. The applicant complained to the Commissioner that, while he was held in immigration detention, the Department had interfered with his privacy by disclosing his personal information to another detainee.

2    In the exercise of a broad discretion, the Commissioner’s delegate decided not to investigate the applicant’s complaint further on the basis that doing so was not warranted in all the circumstances, and because the delegate was satisfied that the Department had adequately dealt with the complaint.

Background

3    The applicant is a 36-year-old citizen of the Republic of India. The applicant entered Australia in 2006 on a student visa and thereafter resided in the Australian community on that visa and subsequent visas. On 31 October 2018, the applicant’s visa was cancelled under s 501(2) of the Migration Act 1958 (Cth) on the ground that he did not pass the character test. The applicant challenged this decision in the Administrative Appeals Tribunal and on judicial review, terminating in the decision of the Full Court in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 197, the upshot of which was that the applicant was unsuccessful in challenging the original cancellation decision.

4    From 12 November 2018 until 2 August 2021, the applicant was held in immigration detention. On 2 August 2021, he was voluntarily removed from Australia to India. The present proceeding relates to events that are alleged to have occurred while the applicant was in immigration detention, and awaiting voluntary removal.

5    On 4 January 2021, a status resolution officer of the Department of Home Affairs attempted to contact the applicant by telephone, but mistakenly used a number that belonged to another detainee who resided with the applicant at an immigration detention centre. While it is disputed what exactly transpired during the call, it is common ground that the other detainee received the call, and that eventually the status resolution officer realised that he was not speaking with the applicant. It is also common ground that the status resolution officer ended the call upon realising that he was not speaking with the applicant, and then telephoned the applicant.

6    The applicant claims that the status resolution officer in question disclosed personal information of the applicant to the other detainee over the course of the telephone call on 4 January 2021. Specifically, the applicant claims that the status resolution officer disclosed that the applicant had officially asked to be voluntarily removed from Australia to India, and that the applicant had recently been unsuccessful in litigation before this Court relating to his migration status.

7    On 13 January 2021, the applicant made a complaint to the Department concerning the claimed disclosure of his personal information. In a letter dated 29 January 2021, an officer of the Department responded to the applicant’s “feedback”, stating that the status resolution officer had attempted to telephone the applicant using a telephone number “that had been noted on our records to reach you on which you provided to your then [status resolution officer] on 01 October 2020”. The letter continued that the status resolution officer had then contacted the applicant “on the mobile phone number that the Department has had for you since 2017”. As for the applicant’s claim that the status resolution officer had disclosed his personal information to the other detainee, the letter stated: “I would like to assure you that this did not occur. Departmental Officers respect your privacy and abide by their obligations under the Privacy Act 1988.”

8    In response, the applicant made an additional complaint to the Department on around 31 January 2021, querying whether he had in fact provided the telephone number referred to in the Department’s letter. On 24 February 2021, another officer of the Department responded to the applicant, stating: “Departmental records indicate that the [status resolution officer] did not discuss your personal details with your roommate”. The Department also provided the applicant with information about lodging a privacy complaint with the Office of the Australian Information Commissioner, in the event that he remained concerned.

The applicant’s complaint to the Australian Information Commissioner

9    The applicant lodged a complaint with the Office of the Australian Information Commissioner on 10 May 2021. The applicant’s complaint set out a chronology of relevant events, and set out a series of claims as to medical consequences of the claimed interference with his privacy. The applicant also detailed a conversation he had on 24 February 2021 with the departmental officer who had sent the letter in response to his first complaint. The applicant claimed that the officer had shown him a form dated 3 November 2020, which purported to evidence him advising the Department that the incorrect phone number was in fact his own. The applicant also claimed that the officer had told him that the status resolution officer had disconnected the call with the other detainee within a “few seconds”, whereas screenshots purportedly of his own and the other detainee’s mobile telephones showed that the call lasted for about five minutes.

10    Little action was taken to advance the applicant’s complaint until 5 April 2022, when the Commissioner’s Office emailed the Department to make preliminary inquiries about the complaint. Around this time, the applicant was notified by the Department about another possible data breach, which was unrelated to the subject of the complaint.

11    On 6 May 2022, the Department wrote a letter to the applicant stating that “the information used to contact you was based on information recorded from a telephone conversation you had with a departmental officer who completed a 929 Form – Change of Contact and/or Passport Details based on your verbal responses”. The Department also acknowledged that there might have been an interference with Australian Privacy Principle (APP) 10.2, but denied other aspects of the applicant’s complaint. To resolve the issue, the Department offered the applicant a written letter of apology and $500 in compensation. The applicant did not accept this offer.

12    The Commissioner’s Office then listed the complaint for conciliation. On 25 July 2022, Comcover wrote to the applicant offering him $1,000 in compensation to resolve the complaint. The applicant did not accept this offer either. The conciliation was held on 20 September 2022, but the complaint was not resolved.

13    In a statement provided to the Office of the Commissioner and dated 15 January 2023, the applicant stated that he was seeking financial compensation of $182,153, comprising –

(a)    $27,715 for medical treatment expenses;

(b)    $17,560 for further ongoing medical treatment;

(c)    $26,340 for farming business losses;

(d)    $10,538 for salary compensation; and

(e)    $100,000 in non-economic loss, including emotional damage.

14    The Commissioner’s Office then solicited information from the applicant and the Department. On 31 July 2023, an Investigations Officer of the Commissioner’s Office wrote to the applicant in her capacity as a delegate of the Commissioner, stating that she “highly recommend[ed] considering the $500.00 compensation amount [the Department] ha[d] offered previously”. On 7 August 2023, the applicant informed the Investigations Officer that he did not consider the Department’s offer to be acceptable.

15    On 22 August 2023, the Investigations Officer opened an investigation into the applicant’s complaint.

16    On 4 September 2023, the applicant sent the Investigations Officer an email attaching, amongst other things, a letter purportedly written by the other detainee to whom the status resolution officer had spoken on 4 January 2021. That letter relevantly stated –

On January 4, 2021, from 9 to 10 in the morning, I was in an art class with five detainees, at Christmas Island detention centre. During the class I received a call on my personal cell phone [having the number that was incorrectly recorded as the applicant’s].

There was a man who claimed to be [a status resolution officer] from Immigration department. He asked if he was talking to Mr. Singh, and I said “Yes”. He said he was calling to check on my well-being. Further he mentioned that I can see from your documents that you lost your case in federal court and agreed to leave Australia as a volunteer. The department is working on scheduling dates, but it is getting delayed because of the COVID-19 situation in India. Are you excited about going back home?

It was a completely bewildering moment. I was in a state of shock, I don’t want to go back to India or agree to it. You can’t make me go forcefully. He said that you have committed a serious offence, your ability to stay as a permanent resident status is terminated. You have already signed the documents to be removed. The ABF Removal team is working on it right now.

I made it clear that I never had permanent residency or never been to federal court. With a quivering voice, he inquired if he was conversing with Galjinder Singh. I informed him that I go by [a different name] and that Galjinder Singh is my present roommate. He asked if I knew the phone number of Galjinder Singh that I had on my phone and gave it to him. Our conversation lasted for approximately 5 minutes.

…

I witnessed that his personal information quickly circulated among compounds. Everyone within the compounds turned against him. Additionally he suffered greatly numerous difficulties throughout the period of detention riots even afterwards.

17    On 26 September 2023, the Department responded to a request from the Commissioner’s Office for information, providing a range of documents related to the applicant’s complaint. Amongst other things, the Department submitted that the information which the applicant claimed was sensitive information was publicly available in decisions of the Administrative Appeals Tribunal published on Austlii.

The reasons for closing the applicant’s complaint

18    On 31 October 2023, the Investigations Officer wrote to the applicant to advise him that she had formed a view that the Department was adequately dealing with his complaint, and that further investigation was not warranted in all the circumstances. The Investigations Officer foreshadowed an intention to discontinue the investigation and close the complaint, and explained the reasons for this course of action. The Investigations Officer summarised the gist of the applicant’s complaint as follows –

You claim the respondent has disclosed your personal information to a third party, failed to take reasonable steps to ensure the accuracy of your personal information and failed to protect your personal information from unauthorised disclosure. Specifically, the acts and practices that you have raised include:

•    Claim 1 – on 4 January 2021, the respondent contacted another immigration detainee’s mobile number, rather than your mobile number, and improperly divulged your sensitive personal information to the detainee (APP 6)

•    Claim 2 – The respondent failed to take reasonable steps to protect your information from unauthorised access, modification or disclosure. (APP 11)

•    Claim 3 - the respondent did not take steps to ensure that your mobile phone details were accurate and up to date. (APP 10 and 13)

19    As this excerpt shows, the Investigations Officer identified that the complaint related to four of the APPs to which the Privacy Act gives effect.

20    With respect to claim 1, the Investigations Officer set out APP 6.1, which provides –

6    Australian Privacy Principle 6—use or disclosure of personal information

Use or disclosure

6.1     If an APP entity holds personal information about an individual that was collected for a particular purpose (the primary purpose), the entity must not use or disclose the information for another purpose (the secondary purpose) unless:

(a)    the individual has consented to the use or disclosure of the information; or

(b)    subclause 6.2 or 6.3 applies in relation to the use or disclosure of the information.

21    The Investigations Officer stated that the Department acknowledged that the primary purpose of holding information regarding the applicant’s detention and departure was managing immigration matters, and organising the applicant’s departure from Australia. The Investigations Officer noted that the Department confirmed that a telephone call was made by the status resolution officer to another detainee prior to contacting the applicant on 4 January 2021. The Investigations Officer also noted that the Department denied that the applicant’s personal information was disclosed to the other detainee, claiming that after undertaking proof of identity procedures, the status resolution officer terminated the call. The Investigations Officer stated that she considered it reasonable for the status resolution officer to contact the applicant on the most recently updated telephone number in the Department’s system, but that there was insufficient evidence to establish that the applicant’s personal information was disclosed to the other detainee during the telephone call, referring to call notes, which supported the Department’s position. Accordingly, the Investigations Officer concluded that there was not enough evidence to suggest that there was a disclosure of the applicant’s personal information which could have constituted a breach of APP 6.

22    With respect to claim 2, the Investigations Officer set out APP 11.1, which provides –

11    Australian Privacy Principle 11—security of personal information

11.1    If an APP entity holds personal information, the entity must take such steps as are reasonable in the circumstances to protect the information:

(a)    from misuse, interference and loss; and

(b)    from unauthorised access, modification or disclosure.

23    The Investigations Officer stated that the Commissioner’s Office considered “the overall security safeguards the entity has in place to protect the personal information it holds”. She summarised the Department’s position as follows –

The respondent states that the [status resolution officer] used the phone number that was most recently updated in your file. When they received an answer, the [status resolution officer] followed normal procedures by undertaking proof of identity to verify that they were speaking to you. When the other detainee failed these steps, the [status resolution officer] terminated the call.

24    Referring again to the call notes supplied by the Department, the Investigations Officer stated that while she understood that the applicant might “disagree that personal information was shared by the [status resolution officer], there [was] no evidence to suggest that this occurred”, stating that it was likely that the incorrect telephone number had been added to the applicant’s file as a result of human error. The Investigations Officer concluded that there was “no information available to [her] to indicate that reasonable steps were not in place to protect [the applicant’s] personal … information on this occasion”.

25    With respect to claim 3, the Investigations Officer referred to APPs 10.1 and 13.1, which provide –

10    Australian Privacy Principle 10—quality of personal information

10.1    An APP entity must take such steps (if any) as are reasonable in the circumstances to ensure that the personal information that the entity collects is accurate, up-to-date and complete.

…

13    Australian Privacy Principle 13—correction of personal information

Correction

13.1    If:

(a)    an APP entity holds personal information about an individual; and

(b)    either:

(i)    the entity is satisfied that, having regard to a purpose for which the information is held, the information is inaccurate, out-of-date, incomplete, irrelevant or misleading; or

(ii)    the individual requests the entity to correct the information;

the entity must take such steps (if any) as are reasonable in the circumstances to correct that information to ensure that, having regard to the purpose for which it is held, the information is accurate, up-to-date, complete, relevant and not misleading.

26    The Investigations Officer noted the applicant’s claim that he had never had another telephone number while in Australia. The Investigations Officer further noted that the applicant had attempted to change the telephone number on record for him to the correct number on 24 February 2021, 13 April 2021 and 5 May 2021, and received confirmation of the update on 30 June 2021.

27    The Investigations Officer noted that the Department accepted that a breach of APP 10.1 occurred when the status resolution officer telephoned the other detainee, because the applicant’s telephone number was recorded inaccurately. As for APP 13.1, the Investigations Officer stated that APP 13 does not specify a reasonable timeframe for correction, but nevertheless conceded that “a lengthy period of time had passed” before the applicant received confirmation that his telephone number had been corrected.

28    The Investigations Officer then noted the applicant’s claims to have suffered “emotional damage” and specified medical conditions since the alleged breaches of the APPs. The Investigations Officer noted a letter from the Beniwal Hospital that stated that the applicant had been receiving treatment from 18 August 2021, and that he was not fit for work. Ultimately, the Investigations Officer concluded that it was not clear what treatment the applicant was receiving, or whether the alleged breaches of the APPs had resulted in the medical conditions the applicant claimed to suffer.

29    The Investigations Officer also dealt with the applicant’s claimed economic losses, but concluded that there was insufficient evidence establishing a direct link between the claimed breaches of the APPs and the losses the applicant claimed.

30    The Investigations Officer concluded that the applicant had not established any loss caused by the impugned incident that exceeded the Department’s offer of $1,000. The Investigations Officer therefore concluded that the apology and financial compensation offered by the Department were sufficient redress for the applicant’s complaint, and so the Department had already dealt with the applicant’s complaint.

31    The Investigations Officer dealt separately with the question whether an investigation was warranted having regard to all the circumstances, within the meaning of s 41(1)(da) of the Privacy Act. The Investigations Officer identified as a relevant factor whether an investigation would be a productive and efficient use of the Commissioner’s powers. The features that persuaded the Investigations Officer that further investigation was not warranted included –

(a)    the fact that the Commissioner’s Office had attempted to assist in the resolution by conducting a conciliation;

(b)    the fact that the Investigations team had reviewed the material, opened an investigation, and assessed the applicant’s claims against the Privacy Act;

(c)    the fact that further expenditure was not warranted, given that it was unlikely that an investigation would achieve a better result for the applicant than the Department had already offered; and

(d)    the fact that various additional steps would need to be taken if the investigation were to continue.

32    The Investigations Officer gave the applicant until 14 November 2023 to provide any response to these indicative views. The applicant took up the opportunity to respond by sending an email to the Investigations Officer on 22 November 2023.

33    On 23 November 2023, the Investigations Officer informed the applicant that his additional representations had not changed her view of the matter. The Investigations Officer also gave additional reasons related to the factual controversy concerning whether the status resolution officer had disclosed the applicant’s personal information to the other detainee. The Investigations Officer noted the other detainee’s supporting letter, and the applicant’s submission that the duration of the telephone call should lead to an inference that the Department’s account of events was not true. The Investigations Officer acknowledged the evidence relating to the duration of the telephone call, but stated that there was still insufficient evidence to conclude that the status resolution officer had disclosed the applicant’s personal information. The Investigations Officer informed the applicant that she was a delegate of the Commissioner, and that she had decided to decline to investigate the complaint further in the exercise of the Commissioner’s discretionary powers under ss 41(2)(a) and 41(1)(da) of the Privacy Act.

The applicant’s claims before this Court

34    By his amended originating application for judicial review, the applicant seeks relief against the Commissioner. The amended originating application is roughly framed around three grounds that mirror the three claims which the Investigations Officer summarised in the 31 October 2023 letter, with an additional statement which states the gravamen of the applicant’s complaint in relation to each claim. The details of claim in the amended originating application are as follows –

1.     Claim 1 – On 4 January 2021, the respondent contacted another immigration detainee’s mobile number, rather than your mobile number, and improperly divulged your sensitive personal information to the detainee (APP 6) - The respondent gave partition consideration of supporting document provided as evidence to justify the breach.[ ]The respondent failed to appropriately acknowledge the crucial evidence statement presented by [the other detainee].

2.     Claim 2 – The respondent failed to take reasonable steps to protect your information from unauthorised access, modification or disclosure. (APP 11) - The Respondent considered incorrect handling of evidence. Additionally considered were unsupported content of [status resolution officer] hand written notes.

3.     Claim 3 - Adequately dealing with your complaint - The mental conditions of applicants were not taken into consideration at all.

35    The applicant sought orders that his “appeal” be allowed, that the Commissioner’s decisions be set aside, and that the applicant be awarded “compensation costs” of $182,153.

36    With respect to claim 1, the applicant claimed that the Investigations Officer had referred to the letter from the other detainee, but had not given it the weight which the applicant thought it should carry. The applicant also claimed that the Investigations Officer had been biased in favour of the Department, which accounted for the Investigations Officer’s factual conclusion on this subject.

37    With respect to claim 2, the applicant submitted that the Investigations Officer had erred, because the Department had not established that identity checks were conducted when the status resolution officer telephoned the other detainee.

38    With respect to claim 3, the applicant submitted that the Investigations Officer had not taken into account his mental health conditions.

Consideration

39    The originating application for judicial review was in Form 66, a form provided under the Federal Court Rules 2011 (Cth) for use on applications made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The applicant’s amended originating application for judicial review is likewise in Form 66. By s 8 of the ADJR Act, this Court has jurisdiction to hear and determine the applicant’s application.

40    At the first case management hearing in this proceeding on 28 March 2024, I raised with the applicant the fact that his grounds of review were too general. I explained to the applicant the nature of a proceeding under the ADJR Act. I stated that it was not like an appeal against the Commissioner’s decision, and that the applicant had to establish some particular error by reference to one of the grounds under s 5 of the ADJR Act. I also drew the parties’ attention to my decision in Madzikanda v Australian Information Commissioner [2023] FCA 1445; 330 IR 387 (Madzikanda), which had considered the Commissioner’s discretionary powers not to investigate complaints further. I ordered the applicant to file an amended application for judicial review, providing that it was to include particulars of any grounds of review that the applicant pursued.

41    In his amended originating application for judicial review that is now before the Court, the applicant has not specified any particular grounds of review under s 5 of the ADJR Act. Nor are any grounds of review expressly specified in his submissions. However, in what follows I have had regard to whether there is any tenable claim on any of the grounds of review set out in s 5, and in particular, whether the Commissioner breached any rule of natural justice including the rules concerning actual and apprehended bias, failed to have regard to any relevant consideration, took into account any irrelevant consideration, or exercised the discretionary powers in a way that was so unreasonable that no reasonable person could have so exercised the power.

42    In Madzikanda, I explained that an application for review under the ADJR Act is not concerned with the merits of an administrative decision, stating at [5] –

Upon an application for relief under the ADJR Act, the Court is concerned with the legality of the Commissioner’s decision not to proceed further by reference to one or more of the grounds of review that are advanced, and not with the merits of the applicant’s underlying claims: Simjanovska v Department of Human Services [2019] FCA 499 at [108]-[117] (Perry J); Jones v Office of the Australian Information Commissioner [2014] FCA 285 at [19]-[22] (Greenwood J).

43    The decision of the Commissioner under challenge is the decision pursuant to ss 41(1)(da) and 41(2)(a) of the Privacy Act not to investigate further the matters about which the applicant had complained.

44    Section 41(1)(da) provides –

41 Commissioner may or must decide not to investigate etc. in certain circumstances

(1)    The Commissioner may decide not to investigate, or not to investigate further, an act or practice about which a complaint has been made under section 36 if the Commissioner is satisfied that:

…

(da)    an investigation, or further investigation, of the act or practice is not warranted having regard to all the circumstances …

45    Section 41(2)(a) provides –

(2)    The Commissioner may decide not to investigate, or not to investigate further, an act or practice about which a complaint has been made under section 36 if the Commissioner is satisfied that the complainant has complained to the respondent about the act or practice and either:

(a)    the respondent has dealt, or is dealing, adequately with the complaint …

46    The Privacy Act does not create a directly enforceable action by individuals for the infringement of privacy. Instead, the Act directs individuals’ concerns about breaches of APPs through a complaints process. The role of the Commissioner is as an administrative gatekeeper of complaints about interferences with privacy. The initial steps that the Commissioner may take include conciliation and investigation. As an administrative gatekeeper, the Commissioner has no duty to adjudicate rights — the statutory powers of investigation are tempered by the powers to terminate an investigation: see Madzikanda at [50], cited in Papoutsakis v Australian Information Commissioner [2024] FCA 75 (Papoutsakis) at [37] (Stewart J) and Remawi v Australian Information Commissioner [2024] FCA 1156 at [20] (Meagher J).

47    As I said in Madzikanda at [47]–[48] –

The discretion to terminate an investigation is to be considered in the context of the Commissioner’s powers should an investigation continue to completion. Those powers are contained in s 52 of the Act and include the power to make a determination dismissing the complaint, and the power to find that a complaint is substantiated and to make a determination that includes one or more declarations, which include –

(a)    that the respondent has engaged in conduct constituting an interference with the privacy of an individual and must not repeat nor continue such conduct: s 52(1)(b)(i)(B);

(b)    that the respondent take specified steps within a specified period so that the conduct the subject of the complaint is not repeated: s 52(1)(b)(ia);

(c)    that the respondent perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant: s 52(1)(b)(ii);

(d)    that the respondent is entitled to a specified amount by way of compensation for any loss or damage suffered by reason of the act or practice the subject of the complaint: s 52(1)(b)(iii); and (e) that it would be inappropriate for any further action to be taken: s 52(1)(b)(iv).

Therefore, even where an individual’s complaint is found to have been substantiated, the Commissioner may determine that no further action be taken in a matter. …

(Emphasis added.)

48    Additionally, I refer to the following observations in Madzikanda at [51] –

The words of s 41(1)(da) must therefore be construed in light of the gatekeeping role given to the Commissioner. There is nothing in the text, structure, or purpose of the Act that detracts from giving s 41(1)(da) the broad meaning that the text of the provision bears on its face. The factors upon which the Commissioner may rely in reaching the state of satisfaction provided for by s 41(1)(da) are therefore wide, and it is axiomatic that the weight to be ascribed to such factors is a matter for the Commissioner. For present purposes, it is sufficient to say that I consider that the words “having regard to all the circumstances” in s 41(1)(da) are broad enough to entitle the Commissioner to take into account –

(a)    the strength of the evidence concerning a claimed interference with privacy advanced by the applicant in his s 36 complaint;

(b)    the weight to be given to any legal arguments;

(c)    the practical utility of pursuing an investigation; and

(d)    the efficient allocation of the Commissioner’s resources and powers.

49    The broad nature of the Commissioner’s discretion not to investigate further a complaint was also referred to by Stewart J in Papoutsakis, who held at [45] that there were no mandatory considerations attaching to the discretion in the sense described by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39–40.

50    The applicant’s submissions to this Court on the first two claims essentially challenge the Investigations Officer’s conclusion that there was insufficient evidence to establish that the status resolution officer had disclosed the applicant’s personal information to the other detainee.

51    However, as noted at [40]–[42] above, on an application for relief under the ADJR Act the Court is not concerned with reviewing the merits of the Commissioner’s decision. The applicant identified the letter from the other detainee, which was provided to the Investigations Officer, and submitted that more weight should have been attributed to it. But without more, expressing disagreement with the weight that the Investigations Officer placed upon this evidence does nothing to show that the Investigations Officer exceeded the wide bounds of the discretion she was exercising such as to engage any of the grounds of review under s 5 of the ADJR Act. No persuasive basis was advanced for concluding that the Investigations Officer erred in the weight she placed on the various pieces of evidence that were before her, including notes of the telephone call with the other detainee, which were the subject of the applicant’s claim.

52    Nor was any evidentiary foundation identified for the claim that the Investigations Officer was biased, or apparently biased in her assessment of the material before her. As I remarked in Madzikanda at [37], decision-making necessarily involves a risk that the interests of some persons affected by the decision are not preferred. It is therefore unusual for a court to find that that there has been apprehended bias merely by reference to particular findings or conclusions disclosed by the reasoning of a decision-maker. There is nothing about the delegate’s reasons in this case that exhibits any basis on which to impugn the decision on the grounds of actual or apprehended bias. There might be some exceptional cases, such as NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; 214 ALR 264, where fact-finding has been conducted in a manner which in substantial respects is so unreasoned, or lacking rational or reasoned foundation, or plainly and ex facie wrong, that in combination with the way a hearing was conducted, a reasonable apprehension of bias arises. No basis for these types of conclusions exists here.

53    Moreover, even if the applicant could establish that the Investigations Officer reached an incorrect factual conclusion, it would not follow that the decision should be set aside. Within the bounds of reasonableness, the evaluation of the material in support of the complaint was a matter for the Commissioner within the context of decisions about investigation, and not the adjudication of rights. And as noted at [47] above by reference to Madzikanda, even where a complaint has been substantiated, it does not follow that the Commissioner is obliged to pursue an investigation indefinitely.

54    Indeed, the Investigations Officer expressly concluded that there had been a breach of APP 10, yet nevertheless decided to close the complaint. Even putting her factual findings to one side, the Investigations Officer considered that it was not warranted, in all the circumstances, to continue with the investigation. The applicant has not advanced any cogent basis to maintain that the Investigations Officer erred in reaching this conclusion. The Investigations Officer weighed a range of relevant factors, in an orthodox manner. She concluded, in effect, that any further investigation would be out of proportion to the seriousness of the issues underlying the complaint. No persuasive reason to doubt this conclusion has been proffered by the applicant.

55    The final claim raised by the applicant relates to the Investigations Officer’s conclusions on his mental health. The gist of the applicant’s complaint was that the Investigations Officer did not take his mental health conditions into account at all: see [34] above.

56    I do not accept the applicant’s submissions on this topic. For one thing, the applicant’s mental health conditions were not relevant to the main disputed factual issue between him and the Department, which was whether the status resolution officer had disclosed his personal information to the other detainee. It is thus unremarkable that the Investigations Officer did not refer to the applicant’s mental health while considering that topic. And in any event, the Investigations Officer did consider the applicant’s claimed mental health conditions, under the heading of “Non-economic loss”. The Investigations Officer dealt with the applicant’s claimed “emotional damage”, and identified the range of mental health conditions which the applicant claimed to have suffered. The Investigations Officer even “acknowledge[d] the distress caused by the act or practice complained about” and acknowledged the “stress” the applicant suffered in detention. The Investigations Officer nevertheless concluded that there was insufficient evidence to show that any conditions from which the applicant claimed to be suffering were caused by the alleged breaches of the APPs. This conclusion then informed the Investigations Officer’s consideration of whether the Department had remedied the breach of APP 10. The applicant has not identified anything in the material that brings the Investigations Officer’s conclusion or reasoning into serious doubt. The Investigations Officer considered the applicant’s evidence and representations on this subject, and reached a conclusion that was well open to her on the material. Again, merely expressing disagreement with one of the Investigations Officer’s factual findings does not establish any reviewable error in her decision.

57    As explained above, the Investigations Officer was acting as the administrative gatekeeper of the complaints process. After facilitating a conciliation, the Commissioner’s Office opened an investigation into the applicant’s complaint. The Commissioner’s Office requested and received evidence and submissions from the applicant and the Department. The Investigations Officer considered the evidence and submissions, and formed the view that further investigation was not warranted. It was open to the Investigations Officer to reach that conclusion.

Conclusion

58    For the foregoing reasons, the applicant has not established any reviewable error in the decision of the Investigations Officer, which was made as a delegate of the Commissioner.

59    The proceeding will be dismissed. The applicant should pay the Commissioner’s costs of the proceeding.

Associate:

Dated:    3 December 2024