FCF v Commissioner of Victims Rights

Decision at first instance

1. The application was considered by an Assessor, Client Claims, acting as a delegate of the Respondent. On 20 May 2020, the Assessor made an administrative decision that an act of violence was not established on the balance of probabilities as required by s 19 of the Act and dismissed the application.
2. The Assessor stated that for FCF to be considered eligible for victims support, the documentary evidence must establish that she was a victim of an act that apparently occurred in the course of the commission of an offence, which has involved violent conduct and has resulted in injury (physical or psychological) or death (s19 of the Act). When all of these elements are established, she is considered to be the primary victim of an act of violence. It is also necessary for documentary evidence to be provided together with the application for victims support (s 39 of the Act) including a police report or report of a government agency or any other agency that provides support services to victims of crime (s 39(1) of the Act) or a medical, dental or counselling report verifying the primary victim has been injured as a result of the act of violence (s 39(2) of the Act).
3. The Assessor noted that the Respondent had obtained a series of police reports (numbers provided) that detail police and health practitioners attending FCF's residence in relation to concerns for her person. For example: 1. On 18 December 2004, police reported that FCF was located holding her eye after they had forced entry to her residence through the front door due to concerns they had for her person and that she did not move away from the front door despite being instructed by police to do so 5 times before they kicked open the front door of the residence. 2. On 7 October 2006, FCF reported to police that there was a theft from her residence but she was unable to advise when this occurred and there was insufficient information to enable investigation. 3. On 21 January 2009. FCF reported that her ex-husband did something to her which resulted in pain and difficulty walking. Following an investigation, FCF reported that she was unsure if it was him but she believed that something had been done to her. After a discussion with police, FCF said that she did not want to make a statement about the incident and asked police to assist her with requesting her daughter to live with her. Police advised her that they were unable to get involved in civil custody issues. 4. On 4 January 2010, FCF reported to police that things were happening to her in her unconscious. 5. On 22 January 2010, FCF reported to police concerns of a government conspiracy when requesting assistance with locating her daughter. 6. In early August 2015, FCF reported that she was being followed by an unknown person. There is no record that police were able to investigate this complaint.
4. The Assessor noted that on 12 January 2018, Vesna Boban, counsellor, issued a report, which reported that FCF complained that she was abused by the government from 2006 to 2012 and that she reported these incidents to Burwood Police station, different consulates and a member of parliament in Liverpool. Ms Boban noted that FCF believed she was subjected to sexual abuse, violence, property damage and mind games over this time but over the past 6 years nothing had happened, and that these events had destroyed her life. Ms Boban reported that FCF has been engaged with multiple health services.
5. The Assessor found that the injury to the eye in 2004 did not result from an act of violence as it did not result from an unlawful act by police and there was no available evidence to substantiate FCF's other allegations. Accordingly, the Assessor was not satisfied that an act of violence had been established on the balance of probabilities.
6. A copy of the Assessor's decision was served on FCF by post under cover of a letter from the Respondent dated 20 May 2020, but the date of posting is not indicated in the documents before me.

Application for internal review

1. On 16 June 2020, FCF sent an email to the Respondent, advising that she rejected the Assessor's decision because it was "full of lies." She also stated: …Just tell the truth. Confess the violences, crimes, conspiracy. Everything must be in writing by email + by letters with the Victims Service letterhead…
2. However, the Respondent failed to determine the application for internal review within the 42 day time period provided under s 6 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), and there was a deemed refusal under s 6(5) of the ADR Act on 29 July 2020.

Application for Administrative Review

1. This Tribunal's powers in relation to an application for administrative review are governed by s 63 of the ADR Act, which provides: (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
2. The application for administrative review was lodged with the Tribunal on 16 August 2021, in which FCF stated: I am genuine victim of crime for many years. My claims are genuine. I suffered seven violence and crime and also my claims with victims services was dismissed unfairly. That's why I lost the time frame of 90 days review by victims services. I was feeling depressed and numb and lifeless and I did not remember that I was supposed to lodge review in 90 days time. Please see attached letter.

Further evidence

1. In a letter dated 12 September 2021, which was received by the Tribunal on 15 September 2021, FCF stated, relevantly: …I absolutely suffer no psychiatric illness or diseases whatsoever but Health Professionals' conspiracy and government conspiracy is continuing even today and I have been put on CTO. In year 2009. Burwood police has acknowledged government conspiracy and even after 2009 conspiracy continued. Every colour, race, religion, age, appearance people have been used to inflict pain on me. Even little children and babies have been used to inflict pain on me. Every sound, every vehicles, every model of vehicles, lights of vehicles, have been used to inflict pain on me. Every humans' clothes, accessories, hairstyle also have been used to inflict pain on me. Night time I am being sedated regularly for years to carry out violence and sexual abuse on me. I am a single woman but on the name of treatment lots of violence has been happening to me. My rights as a human being and my rights as a victims are being violated. Australian police is actively involve din violence as a part of government conspiracy. I have nowhere to go no one to ask for help. In this world I am all by myself. My relationship with my own family has been destroyed. I have been left with no family, no friends, relatives, acquaintances and even neighbours. All the services in society have been treating with dishonesty. My life on planet Earth has been made living hell. I am living creature - human being. Do I have a right to life? I am claiming my life. I am claiming all my rights as a human and as a victim. I am claiming compensation… All different medias have also been misused to inflict pain on me. I do not watch TV or listen to radio anymore. Everything of my life and other peoples' lives is being associated with sex and violence…
2. In a letter received by the Tribunal on 28 October 2021, FCF largely repeated her previous allegations. However, she also stated, relevantly: … I (FCF) believes that my words are the evidence as I am deprive of human rights and I don't have any resources to bring any other evidence. Along with this letter I am submitting some of the medical documents that would show the physical damage and also letter of hospital admission and CTO letter to show psychological distress…
3. FCF alleged that her ex-husband was guilty of sexual abuse and that unknown people have "done sex into different parts of my body". She stated that many years ago, when "her rear passage was being used for sex", she went to Canterbury Hospital, but the hospital refused to conduct a physical examination and instead admitted her to the Psychiatric Hospital, which was a part of the conspiracy. She was given "strict drugs regularly" from time to time and because of that in 2006-7 she developed a heart problem and had to see a cardiologist. She also alleged that recently, her right retina "has been ripped again" and on 3 October her left macula was ripped. She alleged that after causing her injuries, the government authority "…has been using its resources to make fun of my injuries." She alleged that her pets have been murdered and said that she does not keep pets anymore because it hurts her so much. She also alleged that her heart is enlarged (left side), her wrist is damaged, her eyes have "mild retina paths" because of her uncontrollable diabetes and that her diabetes goes out of control because of the effect of the violence. She also alleged that her food is being spiked by mens' semen, chemicals, drugs and she has recently been diagnosed with gastritis and even her hair and nails are being assaulted repeatedly. She alleged that the government authority recently "created so bad… tangle in my hair that the hairdresser refused to do hair treatment eventually one beautician almost shaved my head." In addition, she asserted that her reputation has been damaged and that she has been called names including slut, whore, tart, prostitute, sick and crazy grandmother.
4. FCF concluded as follows: Because Senior Member of NCAT asked me to provide any evidence I feel under obligation to provide something. My main evidence is my words. There may be corroborative evidence as well. My knees, legs, shoulder every part of my body is affected by violence. My feelings my spirit everything is affected. I feel like crying and crying but because I had been crying for years (as a result I suffered internal brain injuries) now when I cry, my eyes are hurting very badly. My spirit is wrenched into millions of tiny pieces. I am still alive it is a miracle. My life on planet Earth has been made living hell. Your Honour, NCAT is may last resources to get claim approved and to get justice. Please serve me the justice as all my claims are 100% genuine…
5. FCF also lodged the following medical evidence in support of the application for administrative review: 1. Report of Dr G Tsanaktsidis, Vitreo-Retinal Surgeon, dated 19 May 2021. This indicates left ocular surface irritability, secondary to tear film deficiency, left early diabetic macula oedema, mild non-proliferative diabetic neuropathy, and previously treated right inferonasal avulsed equatorial venule. No cause of these pathologies is indicated in the report. 2. Report of Dr S Chandar, consultant cardiologist, dated 15 September 2015. The doctor reported a 10-day history of chest pain, on awakening in the morning and at the end of the day, but that the pain resolved by the time an ambulance arrived. The doctor stated that FCF's medical history was significant for multiple conditions including hypertension, hyperlipidaemia, type II diabetes, major depression (previous hospital admissions for same - Risperidone 2 mg nocte), osteoarthritis, hypothyroidism, central adiposity/elevated BMI. The doctor stated that FCF would undergo a stress test and that she was advised to reduce her caloric intake and walk regularly. 3. Discharge referral from Royal Prince Alfred Hospital dated 7 July 2021, which indicates that FCF underwent an elective gastroscopy and that the stomach was noted to be normal. The pathology report indicates a diagnosis of chronic superficial gastritis. 4. X-rays of the left shoulder dated 15 April 2021, indicated mild loss of sub-acromial joint space and acromioclavicular degenerative change. 5. Ultrasound of the left shoulder dated 19 April 2021, indicated tendinopathy and signs of adhesive capsulitis and mild bursitis. 6. Ultrasound of the left elbow/forearm dated 19 April 2021, which indicated common extensor tendinopathy and a small tear. 7. X-rays of the left elbow (same date) indicated a mild bony irregularity in the medial and lateral epicondyle region. 8. X-rays of the sacroiliac joint dated 28 April 2021, which did not indicate any clear cause of tenderness in the coccyx. 9. X-rays of the teeth dated 31 May 2021, which indicated deep erosion of the crown at 27 and 48 and a missing 17, alveolar bone loss and no aggressive lesions in the mandible. 10. Ultrasound of the right hand/wrist dated 17 May 2021, which suggested evidence of tenosynovitis and possible carpal tunnel syndrome. 11. Referral from Dr Jangwal, treating GP, to Ashfield Physiotherapy Centre, for management of left shoulder and left elbow pain. The report also indicates that FCF was diagnosed with Schizophrenia in 2021. 12. Community treatment order issued by the Mental Health Review Tribunal under s 51 of the Mental Health Act 2007 on 15 September 2021, which determined that: 1. FCF was a person prescribed by the Regulations; 2. FCF is required to attend Croydon Community Mental Health Service to comply with the treatment plan; 3. FCF has a history of ceasing treatment and that she then becomes unwell; and 4. FCF is required to have an injection of Paliperidone every 4 weeks.

Extension of time

1. The Respondent concedes that there was a deemed refusal of the application for internal review on 29 July 2020. However, as the application for administrative review was not filed until 16 August 2021, an extension of time is required under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act).
2. Section 41 of the CAT Act provides, relevantly: (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.
3. I note that FCF has stated that she was unable to file the current application within the required time due to distress et cetera that she suffered as a result of receiving the Assessor's decision. The Respondent did not object to an extension of time being granted under s 41(1) of the CAT Act.
4. In the circumstances of this matter, I am satisfied that it is appropriate to grant an extension of time to FCF and I extend the time for filing the current application to the date of filing.

Act of violence

1. Section 23(1) of the Act provides that a primary victim of an act of violence is eligible for the support under the scheme described in s 26 of the Act.
2. Sections 19 and 20 of the Act provide, relevantly: 19 Meaning of "act of violence" (1) In this Act, act of violence means an act or series of related acts, whether committed by one or more persons - (a) that has apparently occurred in the course of the commission of an offence, and (b) that has involved violent conduct against one or more persons, and (c) that has resulted in injury or death to one or more of those persons… (3) For the purposes of this section, violent conduct extends to sexual assault and domestic violence. (4) Except as provided by subsections (5) and (6), a series of related acts is two or more acts that are related because - (a) they were committed against the same person, and (b) in the opinion of the Tribunal or the Commissioner - (i) they were committed at approximately the same time, or (ii) they were committed over a period of time by the same person or group of persons, or (iii) they were, for any other reason, related to each other. (5) An act is not related to another act if, in the opinion of the Tribunal or the Commissioner, having regard to the particular circumstances of those acts, they ought not to be treated as related acts… (7) For the purposes of this Act, a series of related acts, whether committed by one or more persons, constitutes a single act of violence. (8) In this Act - sexual assault and domestic violence means any of the following - (a) sexual intercourse (within the meaning of Division 10 of Part 3 of the Crimes Act 1900) with a person without his or her consent or with consent obtained by means of a non-violent threat,.. (f) any other act resulting in injury that occurred in the commission of a personal violence offence (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) against any of the following persons - (i) a person who is or has been married to the person who committed the offence,.. 20 Meaning of "primary victim" (1) A primary victim of an act of violence is a person who is injured, or dies, as a direct result of that act…
3. At the hearing before me on 3 December 2021, at which FCF was self-represented, the Tribunal advised her that for her application for administrative review to be successful she must prove that she was a primary victim of an act of violence on the balance of probabilities.
4. The Tribunal asked FCF, several times, whether she was able to direct me to any objective evidence that substantiated the allegations that are set out in her hand-written statements. However, as indicated in her hand-written statements, FCF replied to the effect that her words are her evidence and she stated: I am seeking justice. I am not here to prove anything.
5. I note that FCF otherwise maintained her allegations that she was the victim of conspiracy and violence by government authority during the period alleged in her application for victims support.
6. During the hearing, the Tribunal referred FCF to her assertion that she does not suffer from any mental illness and asked her to clarify this assertion in the light of the current order from the Mental Health Review Tribunal and the medical evidence that she suffers from Schizophrenia. FCF stated that she does not believe that she has a mental illness because she does not hear voices. The Tribunal also asked her if the medication that she has been prescribed for her numerous medical conditions causes drowsiness? FCF replied to the effect that the medication can make her sleepy, but she maintained her allegation that she was being drugged by others.
7. At the hearing, Ms K Douch appeared for the Respondent. The Respondent relied upon written submissions filed on 26 November 2021, which I have summarised as follows: 1. The available evidence does not support a finding that FCF was a primary victim of an act of violence (as described in the application for victims support) on the balance of probabilities. 2. While FCF reported her allegations to NSW police and her psychologist, the assessment of the probative value of her version of events is complicated by matters including inconsistent reporting, the absence of contemporaneous medical evidence that corroborates her allegations and/or the injuries that she allegedly suffered as a result of the alleged events. 3. The Respondent stated, relevantly: 27. In relation to the circumstances of the alleged assaults, we note that the applicant has reported that she was unconscious/asleep during the assaults but awoke feeling pain. When questioned by NSW police, the applicant reported that at no time did she wake up during the assaults and as such believes she had been drugged. 28. As the assaults allegedly occurred about three times a week between 2006 until April 2010, it is unclear from the evidence available how the alleged offender was able to repeatedly and frequently gain access to the applicant's home to drug and assault the applicant. The absence of this material is problematic in circumstances where there does not appear to be any physical evidence of a break-in or contemporaneous medical evidence to verify that the applicant suffered a physical injury as a result of the assaults. 29. In relation to the frequency of the assaults, the applicant the applicant states in her submissions that the government authority has caused sexual violence on a daily basis for more than seventeen years and also physical violence every night for 10 years. This submission is inconsistent with the report provided to NSW Police (see above) and the report to her psychologist that the assaults ceased for a period of six years following an approach to a local MP in 3023. 30. After considering the evidence before the Tribunal, it is apparent from the applicant's submissions and reports to both the NSW Police and her psychologist that the applicant perceives that she has been a victim of abuse perpetrated by unknown offenders/government authority. However, the available evidence does not establish a safe climate for accepting that perception and does not support a finding of an act of violence on the balance of probabilities. Other disclosures 31. In addition to the assaults referred to…., we note the applicant reported an interaction with an unknown person which caused her to feel frightened in August 2015. While this interaction allegedly involved an unknown person placing their hand on the applicant's shoulder, the evidence does not support a finding that this interaction involved violent conduct that apparently occurred in the commission of an offence. Further, there is no medical evidence before the Tribunal that verifies that the applicant suffered an injury as a consequence of that interaction. .. 1. The correct and preferable decision is to affirm the Assessor's decision under s 63(3)(a) of the ADR Act.
8. It is clear that FCF perceives that she has been the victim of sexual violence and physical assault, committed by government authority and unknown other persons over an extensive period of time, and that she suffered both physical and psychological injuries as a result.
9. In State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 (Chemler), the Court of Appeal considered, in the context of a claim for compensation under the Workers Compensation Act 1987 (NSW), whether the worker suffered a psychological injury as a result of perceived harassment and vilification in the workplace. Spigelman CJ accepted that the psychological injury arose by reason of an accurate perception of actual events in the workplace and that the necessary causal link was established. It is therefore necessary to consider whether the events alleged by FCF actually occurred.
10. The medical evidence indicates that FCF suffers from physical conditions including retinal damage to her eyes, hypertension, hyperlipidaemia, type II diabetes, osteoarthritis, hypothyroidism, gastritis and central adiposity/elevated Body Mass Index.
11. While FCF clearly believes that all of these physical conditions resulted from an act of violence, her belief regarding the cause, while honestly held, does not constitute reliable evidence of the facts she alleges. In my view, the clear difficulty with FCF's evidence is that there is no evidence that corroborates her belief.
12. In relation to the alleged psychological injury, I note that the medical evidence supports a finding that FCF suffers from a mental illness (schizophrenia) and major depression (for which she was previously hospitalised and treated with Risperidone), but it does not support a finding that either condition was caused and/or aggravated, accelerated, exacerbated or deteriorated as a result of an act of violence.
13. In applying the test in Chemler to this matter, I am not satisfied that FCF suffered any psychological injury as a result of an accurate perception of actual events and the necessary causal link has not been established.
14. For these reasons, I am satisfied that the correct and preferable decision is to affirm the decision of the Assessor dated 20 May 2020.

Orders

1. I make the following orders: 1. Pursuant to s 41 of the CAT Act, I extend the time for filing the application for administrative review to the date it was filed. 2. Pursuant to s 63(3)(a) of the ADR Act, the decision of the Assessor dated 20 May 2020 is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2021