Australian Privacy Principle 6 interpreted

A delegate refused to grant the applicant a partner visa, in which a claim of family violence had been made.

After an application for review was made to the Tribunal, the applicant requested documents from the Tribunal under s 362A of the Migration Act 1958 (Cth), which read:

362A  Applicant entitled to have access to written material before Tribunal

(1) Subject to subsections (2) and (3) of this section and sections 375A and 376, the applicant, and any assistant under section 366A, are entitled to have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review.

(2) This section does not override any requirements of the Privacy Act 1988. In particular, this section is not to be taken, for the purposes of that Act, to require or authorise the disclosure of information.

(3) This section does not apply if the Tribunal has given the applicant a copy of the statement required by subsection 368(1).

At [15], the Federal Circuit and Family Court of Australia (FCFC) described the information sought, and which was produced but which contained information that was redacted, as comprising:

(a) addresses contained in statutory declarations and statements obtained by the Sponsor to support his withdrawal of sponsorship of the Partner Visa applications;

(b) a mobile telephone number contained in a statement obtained by the Sponsor to support his withdrawal of sponsorship of the Partner Visa applications; and

(c) movement details of the Sponsor in the Sponsor’s Movement Details Report.

The Tribunal's response was summarised by the FCFC at [8(q)] as follows:

... some documents were partially redacted and some were redacted in full ... The redactions related to personal information relating to persons other than the applicants. The Tribunal reasoned that the documents contained personal information about another person and it was not satisfied that disclosure was permitted under Australian Privacy Principle 6 (“APP 6”) as set out in Sch 1 to the Privacy Act 1988 (Cth) (“Privacy Act”) ...

APP 6.1 read (original emphasis):

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.

The words “personal information” were defined in s 6(1) of the Privacy Act to mean (original emphasis):

personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable

(a) whether the information or opinion is true or not; and

(b) whether the information or opinion is recorded in a material form or not.

The Tribunal affirmed the delegate's decision.

The applicant then applied to the FCFC for judicial review of the Tribunal's decision.

Some of the questions to the FCFC were as follows:

Question 1: Can it be said that "the addresses and mobile telephone number of a declarant of the relevant statutory declarations or statements is information about identified individuals (the individuals being identified by name in the unredacted portions of the statutory declarations) and is therefore “personal information” for the purposes of APP 6.1"?

Question 2: The Department collected personal information as a result of it being provided to it by the Sponsor approximately ten months after he had withdrawn his sponsorship. Was the particular purpose (and therefore the primary purpose: APP 6.1) of the Department in collecting the personal information to determine whether or not the Applicant was the spouse of the Sponsor, therefore to determine whether the Applicant met the relevant criteria for the grant of a partner visa?

Question 3: Can it be said that, although the task upon which the Tribunal was engaged was a review of the delegate’s decision, the particular purpose of that task, and the particular purpose of the task of the delegate also, was to determine whether the Applicant was the spouse of the Sponsor, and therefore whether she met the criteria for the grant of a partner visa?

Question 4: Can it be said that the Department, "in providing the personal information to the Tribunal, was providing the personal information for the same particular purpose for which it had collected the personal information, and the Tribunal in collecting the personal information was collecting it for the same particular purpose, namely, to determine whether or not [the Applicant] was the spouse of the Sponsor"?

Question 5: If the answer to all the above questions is 'yes', does it necessarily follow that the Tribunal's "failure to provide the redacted addresses of the declarants (and in one instance a redacted mobile phone number) to [the Applicant] was an error because that information would have been provided to her for the particular purpose of assisting the Tribunal to determine if [she] was the spouse of the Sponsor"?

Question 6: Was the sponsor's movement records collected not for the purpose (primary or otherwise) of determining whether the Applicant was the sponsor's spouse, with the result that the failure to provide those records to the Applicant did not amount to error?

Question 7: If the answer to Question 5 is 'yes', may the redaction of addresses or a mobile number from the statutory declaration have deprived the Applicant of an opportunity to be prompted about something which the names of the Sponsor’s friends (which were not omitted from the statutory declarations and statements) alone did not, with the consequence that the error was material?

The FCFC answered those questions as follows: