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.
I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Greenwood.