Federal Court of Australia

Bibawi v Australian Human Rights Commission [2021] FCA 1476

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.

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

REASONS FOR JUDGMENT

GREENWOOD J

Background

1    These proceedings concern an application by Mr Magdy Bibawi for judicial review of a decision of the Australian Human Rights Commission (the “Commission”) made on 9 October 2020 by Ms Rachel Holt (the “Decision”). By the Decision, the Commission found that the applicant had not made a “complaint” that satisfied the requirements of s 46P of the Australian Human Rights Commission Act 1986 (Cth) (the “Act”). Mr Bibawi is not assisted by any legal advice and accordingly in these reasons, the Court will attempt to identify, as clearly as possible, the nature of the application, the context, the scope of the decision and what appears to be the basis upon which Mr Bibawi seeks to challenge the Decision.

2    The term “complaint”, relevantly for present purposes, means a complaint lodged under Div 1 of Pt IIB of the Act: s 3(1) of the Act. Section 46P of the Act falls within Div 1 of Pt IIB of the Act and, relevantly for present purposes, the section has a number of elements.

3    First, it provides that a written complaint may be lodged with the Commission alleging that one or more acts have been done; or that one or more omissions or practices have occurred; and alleging that those acts, omissions or practices are “unlawful discrimination”: s 46P(1).

4    The term “unlawful discrimination” means any acts, omissions or practices that are unlawful under particular Parts of a number of legislative instruments, namely, the Age Discrimination Act 2004 (Cth), the Disability Discrimination Act 1992 (Cth) (“DDA”), the Racial Discrimination Act 1975 (Cth) (the “RDA”) or the Sex Discrimination Act 1984 (Cth) (the “SDA”). The statutory term “unlawful discrimination” is further defined in s 3(1) of the Act in an inclusive way. It is not necessary to set out comprehensively all of the elements of the definition.

5    Second, s 46P provides that a qualifying characteristic of a complaint is that “[i]t must be reasonably arguable” that the alleged acts, omissions or practices “are unlawful discrimination”: s 46P(1A).

6    Third, the complaint must set out, as fully as practicable, the details of the alleged acts, omissions or practices: s 46P(1B).

7    Fourth, the complaint may be lodged by a person aggrieved by the alleged acts, omissions or practices as set out in s 46P(2).

8    By the decision, the Commission, having reviewed the material put to it, reached this conclusion at Court Book (“CB”) 13:

On the information you have provided I consider that you have not met the requirements for lodging a complaint with the Commission, as you have not met the requirement that it is reasonably arguable that the acts or practices you have alleged constitute unlawful discrimination.

9    As to victimisation, for the purposes of s 42 of the DDA, the Commission observed that a complainant is required to provide, or point to, information which supports a contention that a respondent subjected, or threatened to subject, the complainant to a detriment “because the complainant has done, or proposes to do, one of the actions listed in section 42(2)(a)-(g) of the DDA” [original emphasis]: CB 13-14.

10    By the decision, the Commission reached this conclusion at CB 14:

I appreciate the seriousness of the concerns you have raised and the impact these concerns are continuing to have on you. However, having considered the extensive documents you have provided to the Commission, there does not appear any information to support a reasonably arguable claim that you were subjected to a detriment because of your complaints of unlawful discrimination to this Commission, or that your past complaints could reasonably arguably be considered a substantial and operative factor in any detriment you say you have experienced.

I further note that your complaints to this Commission were not against any of the named respondents, nor do they have any relationship/connection to the respondents of those complaints. It is very unclear whether the organisations and people who you are seeking to complain about now, knew about your previous complaints to the Commission.

[original emphasis]

11    As to discrimination, the Commission said this at CB 14:

In addition to your claim of victimisation, you also make reference to discrimination and racial profiling in relation to the activities that you witness of individuals who are both known to you and strangers (at least some of whom you claim are undercover police watching you). I appreciate that you have genuine concerns about individuals you encounter in your daily life, however the information you have provided to the Commission does not support a reasonably arguable claim of discrimination under the federal discrimination laws administered by the Commission.

12    Having regard to the Commission’s analysis of the documents and the above observations, the Commission expressed this view at CB 15:

For the above reasons, I consider that you have not met the requirements for making a valid complaint of unlawful discrimination under section 46P of the [Act]. Therefore, the Investigation and Conciliation Service of the Commission will not be taking any action in relation to your correspondence.

13    The background to the applicant’s complaint and the Decision is this.

14    The applicant made a complaint to the Commission (the first complaint) against the Queensland University of Technology and Ms Kim Appleton in 2011. The complaint was made under the DDA and concerned alleged discrimination by the Queensland University of Technology against the applicant in its provision of education services.

15    A second complaint was made under the DDA by the applicant to the Commission in March 2018 about the Queensland University of Technology.

16    A third complaint was made under the DDA by the applicant to the Commission in 2019. This complaint was made against the University of Queensland and Mr Anthony Arlay, the Director of University Health Services at the University of Queensland at that time. This complaint was terminated on 15 July 2019 because it was lodged more than 12 months after the contended acts, practices, or omissions took place.

17    On 1 May 2020, the applicant made a fourth complaint to the Commission which named two respondents, the Premier of Queensland and Ms Valerie Kellett. The substance of the complaint was that the applicant had been victimised and forced to stop working as a teacher; that the applicant would be admitted to a hospital, presumably against his will; and that the applicant was being intimidated and threatened, including at his place of residence.

18    This complaint is the complaint that led to the Decision the subject of these proceedings.

19    Between 1 May 2020 and 9 June 2020 the applicant sent 13 emails to the Commission which attached a mixture of submissions, correspondence with other organisations, screenshots of the applicant’s social media posts, statements and photographs containing a variety of complaints, including material about the applicant’s claims that he was victimised as a teacher; the contended interactions the applicant had with his neighbour, Ms Kellett, her daughter, and other tenants in his housing complex; complaints concerning the Queensland Police Service (“QPS”) including allegations of racial profiling; and complaints about Flight Centre.

20    The Commission sent an email to the applicant on 12 June 2020 referring to the correspondence received and summarising the complaints made by the applicant. The Commission observed that if the applicant was making a claim of victimisation, the complaint would be governed by s 42 of the DDA. The Commission also identified deficiencies in the material provided by the applicant. First, based on the material it had received, there did not appear to be any information to support a claim that the applicant had been subjected to a detriment because of a complaint he had made to the Commission. Second, there did not appear to be any information that could support the applicant’s racial profiling claim to the effect that he had been treated in the manner alleged because of his race.

21    Following two emails from the applicant indicating his confusion as to the Commission’s suggestion his claim would be better made under s 42 of the DDA, the Commission wrote to the applicant on 15 June 2020 to again explain the requirements to be satisfied concerning a claim of victimisation. The Commission explained that it did not administer Queensland legislation; that the applicant’s racial profiling complaint needed to identify who was said to be racially discriminating against him and why he believed the person or persons in question were treating him in a particular manner because of his race.

22    The applicant was advised that he needed to present a “reasonably arguable” claim in order to make a complaint which satisfied the requirements of s 46P of the Act.

23    Also on 15 June 2020, the Commission sent a separate email to the applicant concerning his complaint about Flight Centre. In that email, the Commission advised the applicant that the complaint did not demonstrate victimisation because there did not appear to be any information that could support a claim that he was treated unfairly by Flight Centre because of the applicant’s earlier complaints to the Commission.

24    Later that day, the applicant wrote to the Commission and confirmed the following:

To ensure there is no confusion and in response to this email I am lodging my complaint from part one to part eighteen and including part nineteen (flight centre), all under the disability discrimination Act 1992 section 42 victimisation

25    In six subsequent emails sent to the Commission, the applicant has confirmed that he relies on s 42 of the DDA for the purposes of his claims.

26    Between 20 June 2020 and 8 October 2020 (the day prior to the Decision), the applicant sent the Commission a further 52 emails containing a mixture of submissions, correspondence with other bodies, screenshots of the applicant’s social media posts, statements and photographs.

27    As earlier mentioned, on 9 October 2020, the Commission sent an email to the applicant attaching its 14 page letter dated 9 October 2020 explaining the basis upon which it considered that the applicant had not made a valid complaint under s 46P of the Act.

28    It is now necessary to turn to further aspects of the Decision.

The Decision under review

29    The Decision begins by summarising the material received by the Commission from the applicant, namely a document entitled “‘Complaint doc’, 26 Parts and over 40 emails from 7 August 2020 to date”. Included in the attachments to those documents are a number of statements written by the applicant’s friend, Mr Andrew McLean; documents associated with the applicant’s previous concerns with various organisations; photographs of people that the applicant says he believes are watching him; photographs of cars and streets; and screenshots of posts made by the applicant on social media.

30    The submissions made by the applicant are then summarised.

31    Although in the “Complaint doc” the applicant identifies the State of Queensland, the Hon Annastacia Palaszczuk, Premier of Queensland (the “Premier”), and Ms Valerie Kellett (the applicant’s neighbour), as the respondents, the material provided by the applicant also raises concerns about the following individuals or organisations: the Hon Dr Steven Miles, Minister for Health (as he then was); Education Queensland; the other tenants in the applicant’s housing complex; Queensland Department of Housing and Public Works (“Housing”) and specifically the Buranda Housing Service Centre (“Buranda”); QPS; and Flight Centre.

32    The Decision addresses each of the claims made against all of these “alleged respondents”.

33    In seeking to summarise the applicant’s claim, the Commission notes that the large volume of material provided by the applicant is “often confusing and hard to understand”. The Commission, however, explains that it has “endeavoured to ascertain what [the applicant is] seeking to complain about” and has accordingly provided a summary of the applicant’s claims, including the Commission’s understanding of the applicant’s “primary allegation”, that is, the conduct the applicant describes as “deliberate victimisation” of the applicant by the named organisations and persons because of his previous complaints to the Commission.

34    As the Commission observes, the applicant contended that various organisations had acted towards him in a way with a view to subjecting him to another emergency examination order; and that he had been placed under surveillance by the QPS since August 2017 (when he moved into the residence he was occupying at the time of the Decision). The Commission also notes that the applicant has previously advised that he suffers from anxiety and depression and that he had been admitted to a mental health hospital (facility) following two involuntary treatment orders in 2009 and 2011.

35    The Commission observes that the applicant believes that he was wrongly diagnosed at that time and he fears this will happen again based on his experiences around the time of the Commission’s Decision.

36    The Commission refers to the three complaints lodged with it under the DDA (as described earlier in these reasons) and considered the complaint made by the applicant to be a complaint about victimisation under s 42 of the DDA rather than a complaint under ss 26 and 31 of the Act as the applicant had originally contended. Following the exchange of correspondence between the Commission and the applicant prior to the making of the Decision, the applicant had accepted the Commission’s understanding of the basis upon which the complaint had been made: see [19] to [23] of these reasons.

37    By its decision, the Commission then sought to summarise the conduct identified by the applicant, grouped by reference to each respondent.

The State of Queensland and the Premier of Queensland

38    The first series of concerns related to the State of Queensland and the Premier, and concerned the applicant’s complaints about Education Queensland. The Commission summarised these concerns as follows at CB 4-5:

You advise you were registered as a general relief teacher with Education QLD between 2017 and March 2020, when you withdrew your registration.

…

In summary, you felt that Education QLD forced you to stop working for it as a result of its actions and claims school staff allegedly made about you during your relief postings. You advised your friend Mr McLean that you had done 50 placements as a relief teacher and experienced discrimination on each occasion. You feared that Education QLD’s actions would prompt another emergency examination order being made against you or you being misdiagnosed with a mental illness again.

39    Having summarised that matter, the Commission noted that, based on the applicant’s documents and the statements provided by Mr McLean, the applicant contended that he had worked five days at four different schools in 2020. The Commission then notes the applicant’s contentions about that matter as follows at CB 5:

•    On 21 February 2020, you attended Calamvale Community College. You say that there was another supply teacher there who tried to provoke you inside of the class by asking you who you were working with and saying the ‘kids are disruptive’. You say that she repeated her behaviour towards you and then sent out some text messages. You say that you subsequently found out she was not a teacher.

•    In Cavendish High School, the Head of the Maths Department asked you to take cartons to the bin.

•    In Bowen Hills School, the Deputy Principal prevented you from teaching and asked an Indian teacher to teach maths to the class.

•    On 6 March 2020, you worked at Everton Park State School. You say you sent a student to the Principal’s office who you felt was misbehaving. You say that you were subsequently accused by the Head of the Maths Department of touching and grabbing the student that you had sent to the Principal’s office, as well as taking the student’s pencil, despite him not being in the classroom. You said that you had ‘clapped the student’s hand’ to create a ‘positive learning environment’ and took the pencil from the student to ‘teach him how [to] calculate the percentage’.

40    The Commission also observes that on 27 April 2020 the applicant had informed “TRACER” (the administration unit for relief placements in Education Queensland) that the applicant had withdrawn his services in order to concentrate on his proposed return to Egypt. The Commission notes the applicant’s advice that Education Queensland had then cancelled his registration which the applicant felt was discriminatory, contending that Education Queensland did not need to cancel his registration and, instead, could have suspended his registration.

Ms Valerie Kellett

41    As to the applicant’s claims of victimisation by his neighbour, Ms Kellett, the Commission provided a non-exhaustive list of the examples provided in the applicant’s material to illustrate the applicant’s concerns.

42    The Commission also referred to the statements by Mr McLean dated 14 March 2020 and 26 March 2020 included in the material the applicant sent to the Commission. The first of those statements indicates that the applicant had informed Mr McLean that he believed that “the danger is not in Val … but from the people who used her to get a response or a stimulus from [the applicant]”. The second statement conveyed the applicant’s concerns for his safety and his fear that Ms Kellett may call the police or ambulance to him which might result in the applicant being returned to a mental hospital.

43    The Commission also notes emails sent by the applicant in July and August 2020 to the Commission in which the applicant continued to raise concerns about Ms Kellett and her daughter and their interactions with the applicant and their presence outside the applicant’s flat. The Commission also refers to the applicant’s email dated 4 July 2020 in which he raises concerns about his fellow neighbours, including Ms Kellett and an “unnamed individual” who was said to be blocking the entrance to the applicant’s flat.

Housing and Buranda

44    With regards to the complaints about Housing and Buranda, the Commission notes that the applicant has been renting accommodation from Housing. The Commission quotes the applicant directly with regards to his contended experiences of victimisation, as follows at CB 8:

Continuous victimisation and discrimination of [Buranda] Service Centre of the department of housing after the Queensland Ombudsman remove the warning issued against me by the department and receiving apology they transfer me at my current address [address] on 10/8/2019 and from this date of arrival until date I writing my complain, they continue discriminating and victimising me.

45    The Commission also notes the concerns of the applicant about “other tenants and about ‘criminal people’ coming to the complex in the early hours of the morning and asking for mobile chargers”; the applicant’s concern that his neighbours were searching and/or taking his rubbish bags in September 2019 and particularly his concern that his neighbours were putting something illegal in the bags to incriminate him (as a result of which the applicant asked Mr McLean to inspect his rubbish for him before it was put in the bins and reported his concerns to Buranda); the applicant’s concern that he had sought a transfer at that time but this request had been refused; that Buranda had circulated a notice to the tenants in the applicant’s complex on 17 October 2019 warning that “searching through others rubbish is not an acceptable behaviour”; and, referring to concerns expressed in emails the applicant had sent the Commission in October 2020 that Buranda had not replaced a sliding door in the applicant’s bathroom which he considered necessary as it reduced the extent to which he could be under surveillance by Ms Kellett, as the sliding door minimised the sound of his movements.

The QPS

46    The primary contention concerning the QPS is that the applicant has been placed under surveillance. The material provided by the applicant details a number of occasions where the applicant has observed a number of people (who he contends are, or may be, undercover officers working for QPS) watching him from the streets outside his accommodation complex. The Commission refers to photos and supporting statements of Mr McLean sent to the Commission by the applicant in support of these concerns. The Commission sets out examples of the types of concerns raised by the applicant in his expressly non-exhaustive summary of concerns. In reviewing the summary, the Commission refers to the statements of Mr McLean dated 22, 25, 27, 29 April 2020 and 7, 9, 20 May 2020, and 17 June 2020. The Commission also quotes from an email the applicant sent to the Commission on 29 September 2020 and notes that the applicant continues to email the Commission with information about these concerns.

Flight Centre

47    As to the circumstances giving rise to the applicant’s complaints about Flight Centre, the Commission says this at CB 11:

You advise you planned to return to Egypt permanently in November 2020, and bought a one way ticket with the help of Flight Centre in November 2019. You say that you called Emirate Airlines about your trip and they suggested to you that you buy a return ticket since you would be travelling on an Australian passport (not an Egyptian passport) and that ‘Immigration/Customs’ may prevent your travel because of this.

You felt that this would have meant you would have been homeless in November, having intended to vacate your home here. You say that you believe that Flight Centre gave you incorrect information.

You say that you contacted Flight Centre to change your ticket to a return ticket. You say that after saying ‘I will stand for myself in the future’, the officer perceived this as a threat (which you dispute) and you were transferred to a different office. You say that you now have been allocated one officer that you can only deal with, but are finding it difficult to contact her.

Tenants in Unit 4

48    The Commission refers to the applicant’s email dated 20 June 2020 and the statement of Mr McLean dated 19 June 2020. The Commission notes concerns raised by the applicant about his neighbours, a couple in Unit 4. The conduct about which the applicant complains includes the searching of his rubbish bins; neighbours approaching him about calling the police due to criminal activity in the complex; and interactions the applicant had experienced or observed concerning his neighbour.

The Commission’s Assessment and Findings

49    Following this summary, the Commission then correctly identified the relevant elements of s 46P of the Act.

50    The Commission then correctly identified the elements of a claim of victimisation under s 42 of the DDA noting that the applicant must provide, or point to, information which supports a claim that the respondent subjected, or threatened to subject, the applicant to a detriment because the applicant has done, or proposes to do, one of the actions listed in ss 42(2)(a)-(g) of the DDA, which includes the making of (or the proposal to make) a complaint under the DDA or the Act.

51    The Commission then refers at CB 14 to the authority of Penhall-Jones v New South Wales [2007] FCA 925 in which Buchanan J observes at [85]:

Accordingly the authorities are unified in their approach that the ground or reason relied upon to establish breach of the relevant legal obligation need not be the sole factor but it must be a substantial and operative factor. At least one circumstance from the list in s 42(2) of the Act must be a reason for the alleged detriment or threatened detriment. It must afford a rational explanation, at least in part, ‘why’ an action was taken. The connection cannot be made by a mere temporal conjunction of events, by an incidental but non-causal relationship or by speculation. …

[emphasis added]

52    Having considered all of these matters together with the material received from the applicant, the Commission reached the conclusions set out earlier in these reasons. To recap, the Commission concluded that there did not appear to be any information “to support a reasonably arguable claim” that the applicant was “subjected to a determinant because of [his] complaints of unlawful discrimination to [the] Commission”, or that the applicant’s “past complaints could reasonably arguably be considered a ‘substantial and operative factor’ in any detriment” he says he has experienced [emphasis in original].

53    In support of this conclusion, the Commission further notes that the earlier complaints made to it were not made against any of the named respondents or anyone connected to the named respondents, in the material before the Commission in support of the present complaints. The Commission also observed that it was unclear on the material whether the people and organisations the subject of the present complaints knew about the previous complaints to this Commission.

54    The Commission also addressed the applicant’s claims of racial profiling and discrimination ultimately concluding that the information provided to it “does not support a reasonably arguable claim of discrimination under the federal discrimination laws administered by the Commission”.

55    Having reached those conclusions, the Commission expressed the conclusion set out at [11] of these reasons.

Application for Judicial Review

56    As to the parties, the Attorney-General for the Commonwealth was joined as second respondent to the application on 2 March 2021. The Commission, as first respondent, filed a submitting notice on 3 March 2021.

57    The applicant filed an Originating Application for Judicial Review on 20 October 2020 (the “OA”) under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “AD(JR) Act”). The applicant has since filed an Amended Originating Application (the “Amended OA”). However, at p 14 of the Amended OA, the applicant asserts that he continues to rely on the OA. The applicant repeats that position in para 6 of his submissions. Accordingly, the second respondent engages with both the OA and the Amended OA.

The applicant’s case

58    The applicant advanced his case in written submissions filed on 21 July 2021 and by way of oral submissions at the hearing on 28 September 2021. While these submissions at times lack clarity, the two main propositions can be summarised as follows.

59    First, the applicant contends that there is reviewable error on the ground that the decision-maker ought to have examined his complaint not only under s 42 of the DDA but also under ss 26 and 32 of the Act.

60    Second, the applicant contends that there is confusion in the Decision about what was properly under examination, thus giving rise to error.

61    In the applicant’s submissions, he seeks an order that his complaint be returned to the Commission for further consideration based on new evidence which was not available to the Commission at the time the Decision was made.

62    In addition to the applicant’s oral and written submissions, the applicant filed nine affidavits in this proceeding, comprising over 1,000 pages of material in total.

63    At times, the applicant’s affidavits engage with the Decision along the lines adopted by the applicant in his submissions, correcting minor factual errors said to have been made by the decision-maker (as, for example, at pp 7–9 of the applicant’s first affidavit filed on 25 February 2021; para 3 of the applicant’s fifth affidavit filed on 10 May 2021). The affidavits otherwise cover much the same ground, mainly detailing what the applicant describes as numerous “attempts to physically terminate” him. The events described, and material exhibited to the affidavits, for the most part post-date the Decision. The relevance of this material, and the limited number of documents that pre-date the Decision, is discussed further below.

The second respondent’s case

64    The second respondent filed written submissions on 16 July 2021 and made oral submissions at the 28 September 2021 hearing.

65    The second respondent in written submissions contends that the only purported legal errors identified by the applicant are these.

66    First, the applicant’s complaints ought to have been considered by the Commission under ss 26 and 31 of the Act.

67    Second, p 13 of the Decision is said to be misleading, confusing, deceptive, unfair and discriminatory, with very significant legal errors.

68    Third, there is a factual error concerning a date on p 9, para 4 of the Decision.

69    Fourth, new incidents of victimisation have occurred since the Commission’s decision.

70    Fifth, the Commission failed to consider the applicant’s claims and evidence.

71    Apart from propositions 1-4 above, the overarching substantial complaint is that the Commission failed to consider the applicant’s claims and evidence and reached a decision that did not take account of the content of the claims and the evidence said to support those claims. Each of the contended errors are examined in the context of the extent to which they engage with a ground that might be though to support a contended Order of Review under s 5(1) of the AD(JR) Act. The particular ground of primary concern is that “there was no evidence or other material to justify the making of the decision”: s 5(1)(h) of the AD(JR) Act.

72    In support of this primary contention, the applicant includes additional evidence for the Court’s consideration which he says justifies his claim of victimisation. The new information is found in the applicant’s affidavits filed on 25 February 2021, 5 and 9 March 2021, 10 and 17 May 2021, and 4 June 2021. The evidence exhibited to these affidavits includes LinkedIn posts, statements, photographs and emails concerning alleged surveillance operations and “serial killers”, emails regarding a tenancy dispute in the Queensland Civil and Administrative Tribunal (“QCAT”) in 2021, material from 2021 relating to the suspension of the applicant’s registration as a teacher, emails concerning the refunding of money concerning a taxi fare, and emails about an ongoing dispute with Flight Centre.

73    The particular and abiding difficulty with this material is that almost all of it entirely post-dates the Decision.

74    The evidence that pre-dates the Decision is this:

(a)    A letter from the applicant and Mr McLean dated 20 June 2020 which is at p 13 of the 17 May 2020 affidavit. This letter is found at p 416 of the Court Book.

(b)    Health records at pp 73 to 75 of the 17 May 2020 affidavit, which were not before the Commission.

(c)    Teaching records at pp 76 to 87 of the 17 May 2020 affidavit, which were not before the Commission (except for the documents at pp 76, 77 and 87 of the affidavit which are at CB 53-55).

(d)    Medical reports at pp 317 to 319 of the 25 February 2020 affidavit, which were not before the Commission.

(e)    Various correspondence to and from the applicant concerning previous complaints at pp 75 to 94 of the 25 February 2020 affidavit, which were not before the Commission.

(f)    Correspondence concerning the applicant’s earlier complaints to the Commission, at pp 119 to 127 of the 25 February 2020 affidavit. The material at pp 120 to 127 concerns the settlement of the applicant’s 2019 complaint against University of Queensland and Mr Arklay and was not before the Commission.

75    Included in the applicant’s 25 February 2020 affidavit at p 228 is an email from the applicant to the Commission dated 23 September 2020 about the applicant reporting a matter to the police which occurred outside the Chino Hotel. This email does not appear to be included in the Court Book. However, the second respondent accepts that the email should be treated as an additional page to the Court Book as the email was sent to the Commission.

76    An application for judicial review is ordinarily confined to the material put before the decision-maker: Rivas v Republic of Chile [2019] FCA 1940 at [14]. Further, fresh evidence is not admissible unless it bears on a question of jurisdictional error: SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 at [27]. The second respondent contends that it is not open to the applicant to ask the Court to admit new evidence for the purpose of inviting the Court to reach a different conclusion on the facts to the decision reached by the decision-maker: MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8]; Gupta v Minister for Immigration and Border Protection [2016] FCA 1004 at [27].

77    The second respondent objects to the applicant’s reliance on the new material which post-dates the Decision and characterises the new material as a basis upon which the applicant seeks to make new claims of victimisation or discrimination. The material provided by the applicant that post-dates the Decision is simply not relevant for the purposes of the present application.

78    As to the material that pre-dates the Decision, the second respondent objects to reliance on this material and submits that as it was not put to the Commission, it is irrelevant to the decision under review. The second respondent contends that information not put before the Commission cannot be relied upon to seek to demonstrate that the Commission made a relevant error, namely, a failure to consider a relevant matter. The applicant, in his written material and oral submissions, has not demonstrated how this material is relevant to any ground of challenge. Nevertheless, the second respondent has attempted to deal with an assessment of what impact, if any, the material would have if now admitted. At [39] of the submissions, the second respondent says this:

Even if such evidence were admitted, it cannot demonstrate that the Commission erred because there was ‘no evidence’ to justify making the decision. The Commission reached a conclusion that it was not reasonably arguable that the acts, omissions or practices alleged by the applicant were unlawful discrimination due to an absence of proper claims of victimisation or racial profiling advance by the applicant. The further evidence advanced by the applicant does not logically demonstrate that there was no evidence before the Commission. The no evidence ground is not available as an error of law where the finding challenged is in substance a negative one (that is, that something is not the fact): see Sunchen Pty Ltd v Commissioner of Taxation (2010) 114 ALD 49 at [42]-[45].

[emphasis added]

79    Having considered the material that pre-dates the Decision, as described at [74] above, and the submissions with regards to this material, I am not satisfied that the material is relevant to any ground of judicial review of the Decision. The material was not before the Commission. Nor is the material demonstrated to have any logical connection in advancing the applicant’s contention that the Decision is not supported by the evidence.

80    To succeed on this ground (s 5(1)(h) having regard to s 5(3)(b) of the AD(JR) Act), the Court must be satisfied that the decision was “based on” the existence of a “particular fact”, that is, a particular fact critical to the making of the decision; that there was no evidence or other material to support the finding of that particular fact; and that it could be shown that the particular fact did not exist: Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212.

81    The applicant has identified four specific factual errors in the Decision which, as described earlier, are of a minor factual nature and concern mistakes rather than findings lacking any evidential basis. For example, the Commission incorrectly states the date when the applicant moved residence, although it remains true that the applicant did change his place of residence. The factual errors are examined at [95] and following, for the purposes of the fifth ground of review.

82    For the purposes of this first ground of review, the applicant’s general complaint that there is no evidence to support the Decision cannot succeed.

83    The question for the Commission was whether it was reasonably arguable, on the basis of the material put before the Commission, that the acts, omissions or practices alleged by the applicant gave rise to a complaint of unlawful discrimination. In order to decide that question, the Commission was required to examine the material provided by the applicant and form a view about whether the complaint bore the characteristic of being reasonably arguable unlawful discrimination for the purposes of s 46P(1A) of the Act. This was the process undertaken by the Commission. Notwithstanding all of the applicant’s material, the applicant has failed to identify (and nor is it apparent from a review of the Decision), any error on the part of the Commission in reaching a decision that the complaint fails to demonstrate reasonably arguable acts, omissions or practices amounting to unlawful discrimination.

84    The second ground relied upon is an alleged failure by the decision-maker to consider a claim or to consider evidence: see ss 5(1)(e) and 5(2)(b) of the AD(JR) Act.

85    This ground concerns the applicant’s contention that the Commission failed to take into account his claims concerning “Steppingstone”; the contended conduct of the University of Queensland and Queensland Health retaliating against him (as the applicant complains) following a $5,000 payment (payout) to the applicant; claims relating to his attempted return to Egypt; claims that his human right to live and exist was affected; and his claims concerning Education Queensland and the discrimination he contends he faced at the schools where he worked.

86    The second respondent contends that it is apparent from the Commission’s reasons for the Decision that the Commission in fact engaged with each of the complaints made by the applicant and the evidence put to it. In particular, the Commission made reference to each of the complaints made by Mr Bibawi and the substantial body of material that was put before the Commission. It is not apparent from the applicant’s submissions and material, which of the specific claims the applicant says the Commission has failed to address. There is nothing in the applicant’s material that supports this ground of challenge. It is clear that the Commission discharged its statutory duty in examining the complaint and the material put to it and formed a view on all of the material.

87    Having reviewed the material and the reasons formulated by the decision-maker on behalf of the Commission, it is clear that the Commission has identified and summarised each of the claims advanced by the applicant throughout his extensive material.

88    I am not satisfied that the applicant has demonstrated that the decision-maker has failed to consider a claim or evidence put to the decision-maker in support of a contended complaint.

89    The third ground is that of bad faith on the part of the decision-maker: ss 5(1)(e) and 5(2)(d) of the AD(JR) Act.

90    Although the concern of the applicant is not coherently clear, the applicant’s complaint is that the decision-maker, in finding that the applicant was registered as a general relief teacher with Education Queensland between 2017 and 2018 (and the finding that he withdrew his registration), acted “in bad faith” as the decision-maker was “motivated by other reasons”. The applicant’s claim seems to be that, in fact, he did not withdraw his registration but rather indicated he was not available to teach in Terms 3 and 4, and that he may be returning to Egypt. His employment was subsequently cancelled and the applicant complains that the Commission ignored documents about the cancellation.

91    An allegation of bad faith is, without doubt, a serious contention and one not to be lightly made. Accordingly, r 31.01(2) of the Federal Court Rules 2011 requires that an originating application that alleges bad faith must particularise the material facts relied upon to establish bad faith. The second respondent contends that the originating applications filed by the applicant do not sufficiently demonstrate bad faith beyond “vague assertions” that the delegate was motivated by “other reasons”. Allegations of that kind are simply not sufficient.

92    In Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10, the New South Wales Court of Appeal said this at [36]:

… [A]llegations of impropriety of this kind cannot be left to mere inference on the basis of so narrow a foundation as the fact that only one management committee had been established in the State. Whether by way of discovery or subpoena or by way of interrogatories or by way of seeking an interlocutory order from the Court directing the Minister to file an affidavit as to the matters he took into consideration … the Appellant could have, but did not, lay a factual foundation for its case. There was no evidence as to the Minister's motive for pursuing the course he did …. There is no proper basis for an inference that that motive was improper.

[emphasis added]

93    In Deputy Commissioner of Taxation v Leaver [2015] FCA 1454, Pagone J at [7] said this as a matter of principle:

A pleading does not adequately plead a case of bad faith or conscious maladministration, or other jurisdictional error by a generalised plea of “bad faith”, “maladministration”, “conscious maladministration”, “illegality”, “contempt of court” or the like. What must specifically be established, and for present purposes what must specifically be pleaded, are the material facts of the state of mind said to constitute the knowledge or awareness of raising an assessment unlawfully.

[emphasis added]

94    By the fourth ground, the applicant claims that the decision-maker, on behalf of the Commission, erred by telling particular parties that the applicant was a threat to national security, among other factual matters. The applicant has failed to identify any basis whatsoever in the evidence to demonstrate that the delegate said any of these things to anyone as alleged.

95    The fifth ground of review extensively addressed in the applicant’s written material concerns his allegations that the Commission “lied” or made a number of factual errors.

96    The alleged factual errors are as follows: that the applicant’s neighbour, Valerie, lived at Flat 8, not Flat 6 as reported; that he attended Bowen Hills State School and not the Calamvale Community Centre; that the applicant changed address on 10 August 2019 when he in fact moved on 10 August 2017; and that the Commission erred in determining the date on which the applicant was approached by the tenant of Flat 8.

97    The great difficulty with the applicant’s criticism of the Decision is that to the extent that a coherent criticism can be isolated concerning the conclusions and the assessment of the various factual matters by the decision-maker (said to support each complaint), the applicant is simply expressing emphatic disagreement with the conclusions reached by the decision-maker that the complaint fails to raise reasonably arguable acts, omissions or practices as required by s 46P of the Act.

98    In no sense has Mr Bibawi been able to identify any basis on which it can be said that the Commission reached the Decision in circumstances where there was no justification for the making of the Decision.

99    The sixth ground of review is that the Commission failed to understand the statutory basis of the applicant’s complaint.

100    This contention was the focus of the applicant’s oral submissions. The applicant claims that the Commission erred by failing to appreciate that his case (complaint) was being made under ss 26 and 31 of the Act, s 42 of the DDA and ss 11 and 27(2) of the RDA.

101    The second respondent correctly contends that the applicant cannot maintain this allegation in circumstances where he made clear to the Commission that his complaint was made under s 42 of the DDA – see [19] to [23] above.

102    Nevertheless, it is clear that the notion that the complaint was made pursuant to ss 26 and 31 of the Act or ss 11 and 27(2) of the RDA makes no sense for these reasons. Section 26 of the Act concerns offences relating to the administration of the Act and there is no capacity for the applicant to make a complaint in respect of a matter arising under s 26. Section 31 of the Act sets out the functions of the Commission relating to equal opportunity which provides for the Commission to exercise an inquiry function under s 31(b), but this function is distinct from the complaint processes under s 46P of the Act. Section 11 of the RDA concerns instances where a person is denied access to a public place or vehicle by reason of their race, colour or national or ethnic origin. No such circumstance is raised by the applicant in any of his material. Section 27(2) of the RDA prevents, among other things, a person’s employment being threatened because they made a complaint under the Act or the RDA. That provision of the RDA has no application here as the applicant’s previous complaints were made under the DDA.

103    Thus, the Commission did not err in dealing with the applicant’s complaint as anything other than a complaint under s 42 of the DDA.

104    The seventh ground of review is that the Commission failed to consider the consequences of its decision. The impact of the Decision is said by the applicant to be that he would be evicted and his mental health would be affected.

105    While there are some examples of cases where it is appropriate for a decision-maker to consider the consequences of a decision (see, for example, BDQ19 v Minister for Home Affairs [2019] FCA 1630 at [26]), this is not that class of case. Consideration of the consequences of a decision is not a mandatory or relevant consideration under s 46P of the Act and the only consequence that properly arises from the decision is that the applicant’s complaint would not then be subject to investigation. The text of the Decision itself makes clear that the Commission understood the consequence of its Decision, noting that the Commission would “not be taking any action in relation to [the applicant’s] correspondence”, once it had determined that the complaint did not meet the statutory elements of s 46P of the Act.

106    It follows that the Commission has not fallen into error in any manner as alleged by the applicant.

107    In the second respondent’s submissions, a further matter is addressed which is not raised in the applicant’s OA or Amended OA. The further matter concerns the applicant’s evidence about Dr Sam Wee which appears to be the only material put to the Commission by the applicant that has some connection with either the Queensland University of Technology or the University of Queensland.

108    The second respondent identifies the relevant matter and the evidence, in the following terms at paras 62 to 67 of the submissions:

62.    The Commission’s decision does not expressly deal with the applicant’s evidence about Dr Wee. The Attorney-General submits that no error arises from this because there was no complaint made about the conduct of Dr Wee. This is for the following 3 reasons.

63.    First, Dr Wee was not named as one of the 2 persons who were the subject of the initial complaint (nor was leave granted under s 46PAof the Act to allow Dr Wee to be joined as a respondent). The Commission summarised the people against whom the applicant was complaining and did not refer to Dr Wee (e.g. CB 393) and the applicant did not take issue with that list of persons. He also did not identify his concerns with Dr Wee when he summarised his victimisation claim (CB 406). It is therefore not apparent that the applicant intended to make a complaint against Dr Wee.

64.    Secondly, for there to be a complaint, the applicant had to set out, as fully as practicable, the details of the alleged acts, omissions or practices (see s 46P(1B) of the Act). The claims against Dr Wee do not clearly identify any detriment which the applicant would suffer, beyond saying that Dr Wee could not help the applicant. It is not clear what ‘help’ the applicant was seeking or the circumstances in which Dr Wee said that he could not help. In terms of setting out the detail of the alleged omission or acts ‘as fully as practicable’ the comments on Dr Wee compromise approximately 150 words (36 of which are repeated) in an approximately 650 page complaint.

65.    Thirdly, it appears that the references to Dr Wee are just an example of the allegations of the broader government discriminating against the applicant. The first 2 times Dr Wee was raised, the applicant specifically describes this evidence as being ‘for example’ (CB 25 and 234). The third time is it raised it is part of broader evidence of ‘how the government discriminates against me’ (CB 469). The Commission expressly dealt with, and rejected, the broader claims of the Queensland Government’s alleged victimisation.

66.    If the Court considers that the Dr Wee claim is an independent complaint which the Commission was required to consider (which it should not), then the Attorney-General submits that the alleged conduct of Dr Wee does not form a sufficient basis to be considered victimisation. It appears that the claim is that Dr Wee did not assist Mr Bibawi in preparing evidence in his complaint against the Queensland University of Technology because he believed that he had a conflict of interest due to his employment at Queensland University of Technology. A refusal to assist in those circumstances would not be as a consequence of the complaint of unlawful discrimination, but rather because of Dr Wee’s duties and obligations as an employee of the Queensland University of Technology, and so would not be victimisation: see equivalent reasoning in Penhall-Jones v State of New South Wales (No.2) [2006] FMCA 927 at [136].

67.    Accordingly, the Attorney-General submits that if the Commission were required to consider the evidence about Dr Wee, the complaint did not involve victimisation, and so the complaint was dealt with by the Commission’s broad finding that ‘there does not appear [to be] any information to support a reasonably arguable claim that you were subjected to a detriment because of your complaints of unlawful discrimination to this Commission’ (CB 14).

109    As mentioned, these matters are not the subject of the applicant’s OA or Amended OA. However, in any event, having considered this material and the second respondent’s submissions, I accept the characterisation of the material adopted by the second respondent.

110    It is clear that no independent claim about these matters was being put to the Commission.

111    As explained in these reasons, the applicant seeks judicial review of the Decision under the AD(JR) Act in a way which can properly be described as “falling loosely” under some of the grounds of review set out in s 5 of the AD(JR) Act. It is fair to say that it has been a difficult exercise to isolate a coherent conception on the part of the applicant of the criticism he makes of the Decision and its relationship with grounds supporting an Order of Review under the AD(JR) Act.

112    The applicant has failed to identify any reviewable error in the Decision.

113    In the result, the application must be dismissed.

114    The Attorney-General of the Commonwealth, as second respondent, does not seek an order for costs of these proceedings and accordingly there will be no order as to costs.

115    The only orders to be formally made are that the application is dismissed and that, having regard to Mr Bibawi’s preference to not attend Court, the orders and the reasons explanatory of the orders will be published from Chambers so that Mr Bibawi will not have to personally attend to receive the judgment.

Associate:

Dated:    24 November 2021