Review of rejection - Jurisdictional facts - Time for review application.

Gedeon v NSW Crime Commission [2008] HCA 43, 236 CLR 120;

Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16.

1. Mr Shah has applied to the Tasmanian Civil and Administrative Tribunal (the Tribunal) to review the decision of the Anti-Discrimination Commissioner (the ADC) to reject his complaint of direct discrimination and of offensive, humiliating, insulting, intimidating or ridiculing conduct. This conduct is alleged by him to have occurred when dealing with a bus driver employed by Metro Tasmania Pty Ltd on or about 8 August 2024. Mr Shah's complaint which he lodged with the ADC on 1 November 2024 was rejected by the ADC with written reasons on 13 December 2024.
2. Mr Shah's application to review the rejection of his complaint was received by the Tribunal on 13 January 2025. This is beyond the 28 day time limit for the lodgement of such an application to review in accordance with s 65(3)(b) of the Anti-Discrimination Act 1988 (the ADA).
3. For the reasons that follow, I find that the Tribunal does not have jurisdiction to determine Mr Shah's application for the review of the rejection of his complaint.

1. It is now settled law that the Tribunal is obliged to consider its jurisdiction to deal with a matter before it - Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 at [19]- [24].
2. On a consideration of the scheme of the ADA, I find that the lodgement of an application to review the rejection of a complaint must meet all of the requirements of ss 65(2) and 65(3)(a) and (b) of the ADA, namely:

(i) The application for review must be in writing; and

(ii) It must be made within 28 days after receipt of the ADC's statement of the reasons for the rejection of the complaint.

1. Compliance with the requirements of ss 65(2), 65(3)(a) and (b), are the jurisdictional facts which trigger the Tribunal's review jurisdiction. Thus, for the Tribunal's review jurisdiction to be enlivened, Mr Shah must make an application in writing and he must ensure his application is received by the Tribunal within 28 days after the receipt of the notification of the statement of reasons for the rejection of his complaint from the ADC.
2. A jurisdictional fact has been defined by the majority of the High Court in Gedeon v NSW Crime Commission [2008] HCA 43, 236 CLR 120 at [139] to mean:

Generally the expression is used to identify a criterion the satisfaction of which enlivens the exercise of statutory power or a discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker.

3. Although Mr Shah has made his application in writing, he has not done so within 28 days. It is clear that he was aware of the ADC's statement of reasons rejecting his complaint on 13 December 2024 but did not file his written application to review the rejection of his complaint until 13 January 2024. This is some three days outside the 28 day limit prescribed by s 65(3)(b).
4. The clear consequence of Mr Shah's failure to file his application for the review of the rejection of his complaint within the 28 day period prescribed in s 65(3)(b) is set out in s 65(4) which states:

If a person does not make an application in relation to a rejected complaint within the period specified in (3) the complaint lapses at the end of that period.

5. The outcome of the lapsing of a complaint in this context is the same outcome if after review, the Tribunal finds that the ADC made the correct decision to reject (or dismiss) a complaint pursuant to s 72(1) of the ADA.
6. The insertion of s 65(4) of the ADA, in my view, evidences a clear intention in the Parliament to put an end to a complaint if it is not sought to be reviewed within the 28 day period prescribed in s 65(3)(b).
7. With the consequence of the failure to lodge the application to review the rejection of the complaint within 28 days being the lapsing of the complaint, there is thus nothing for the Tribunal to review as the complaint has lapsed by operation of s 65(4).
8. A further consequence of this interpretation is that once the 28 day period has expired, and the complaint has lapsed, there is no time limit which the Tribunal can extend or abridge pursuant to its power to do so - see Rule 11 of the Tasmanian Civil and Administrative Rules 2021.
9. For all of these reasons, I find the Tribunal has no jurisdiction to deal with Mr Shah's application to review the rejection of his complaint and it is dismissed.
10. Even if I am wrong as to this, having considered all the material before me, I would find that the ADC's decision to reject Mr Shah's complaint was the correct decision and that by virtue of s 72(1) of the ADA, his complaint would have lapsed in any event. I have formed this view because:

(i) There is, as the ADC correctly stated, no evidentiary nexus or connection between Mr Shah's asserted attribute of disability and the conduct complained of by the Metro employee.

(ii) The evidence indicates that the conduct of the Metro bus driver was not due to Mr Shah's asserted attribute, but due to other factors. It is noteworthy that on Mr Shah's own evidence, he thought the reasons the bus driver dealt with him the way he did was because the bus driver was "under the influence of something".

1. It was the correct decision for the ADC to reject Mr Shah's complaint pursuant to s 65(1)(b) of the ADA on the basis that his complaint did not disclose a possible breach of the Act, either by direct discrimination (s 14) or by virtue of the offensive conduct provisions of the ADA (s 17).

1. The application for review of rejection is dismissed.