Kingsbury v Melbourne City Mission

The facts

1. The applicant's complaint of discrimination is lengthy. I have considered it in its entirety, together with the other documents that the applicant annexed to his affidavit in support of his application for leave, the documentary evidence relied on by the Melbourne City Mission, the Department, and HousingFirst, the reasons given by the delegate of the President for the termination of the applicant's complaint, and the parties' submissions to the Court. In summary, the position is as follows.
2. The applicant is a young man in his mid-20s who has a history of homelessness. The applicant stated to the Commission that he has ADHD, describing it as a neurodevelopmental disorder. On the evidence before the Court, the applicant is afflicted with some mental health issues. Those issues have manifested themselves in some inappropriate communications to individuals working for the Melbourne City Mission who were trying to help him. The issues have also manifested themselves in the content of other electronic communications to the Mission after the applicant made his complaint to the Commission, and in some passages of written submissions filed by the applicant with the Court, which I will not set out.
3. The Melbourne City Mission is a registered charity, and operates a service known as Frontyard Youth Services. That service provides assistance to persons aged between 12 and 24 who are experiencing homelessness, including by helping them to get onto housing registers. The Department maintains the Victorian Housing Register. HousingFirst is a not-for-profit organisation which provides social housing through the Victorian Housing Register, and is a registered housing association under the Housing Act 1983 (Vic).
4. The Melbourne City Mission commenced assisting the applicant in about August 2022 upon referral by the Salvation Army. This led to the applicant becoming a tenant of HousingFirst in a rooming house in Elwood in November 2022 as part of a pilot program, and he remains a tenant residing at that property.
5. The Mission then assisted the applicant with the paperwork that was required for him to be placed on the Victorian Housing Register maintained by the Department, so that he could find permanent housing. That assistance included the submission of an application in March 2023 for entry onto the Register. The applicant claims that at about this time he was led to believe that he would be placed in housing in Tarneit.
6. On 15 June 2023, the Department wrote a letter addressed to the applicant stating that more information was required to assess his application. It is not clear whether the applicant received the letter at the time it was written, because it was addressed to him at a previous address, namely the premises of the Mission in King St, Melbourne. However, it appears that a copy of the letter was later passed on to the applicant in July 2023 by the Mission. The information sought by the Department related to the applicant's income.
7. In July 2023, HousingFirst wrote to the Mission advising it that the applicant's application for entry onto the Register had not been approved, and requested that it investigate. The applicant states that he attended the office of HousingFirst on about 18 July 2023, and confirmed that his application had been marked ineligible. The applicant produced a screenshot of the details of his application on a computer showing his application status as "ineligible", and that he had "failed" the income eligibility criterion. At about this time, the applicant began to communicate inappropriately towards Mission staff, as records of text communications show. The Mission then wrote to the applicant by email dated 19 July 2023 confirming that the Mission was "closing supports", meaning that it was terminating its support of the applicant. The email also confirmed to the applicant that his application for entry onto the Victorian Housing Register had been assessed as ineligible because the Department had not received the financial information that it had sought from the applicant. The writer of the email advised the applicant that the Mission had provided the further financial information to the Department the previous day together with the applicant's current email address, and that his application remained on foot in the "priority" category.
8. Later in July, the applicant's application for entry onto the Register was approved. However, in August 2023, HousingFirst advised the applicant that it did not have any housing vacancies for him at that point. As I mentioned earlier, the applicant remains a tenant of HousingFirst at the Elwood property.
9. In September 2023, the applicant lodged a complaint with the Department in relation to his engagement with the Melbourne City Mission. The applicant claimed that three individuals employed by the Mission discriminated against him, and "sabotage[d]" his application to be entered onto the Victorian Housing Register by various means alleged in the complaint. The applicant claimed that he had been discriminated against on the basis that another person who was living in his rooming house had been allocated housing, yet the applicant had not. The tenor of that claim of discrimination was that the other person, although six months older than the applicant, had perceived characteristics and an appearance that made him look younger than the applicant. In substance, the applicant claimed that he had been discriminated against on the basis of his assumed age. The Mission responded to the complaint in early October 2023, denying the allegations that were made.
10. In November 2023, the applicant made an online complaint to the Commission naming the Mission and the Department as respondents. In the complaint form, the applicant ticked boxes referring to discrimination on the grounds of age, disability, sex, sexual orientation, gender identity, race, and criminal record; and he referred to racial hatred, victimisation, and a breach of his human rights by a Commonwealth government agency. The applicant later followed up his complaint with an email to the Commission in which he stated that he wished to add HousingFirst to the complaint. In the body of the complaint, the applicant claimed that he had made two complaints to the Department, the most recent of which was a complaint lodged with the Department at its Prahran office, which the applicant said he copied and pasted into the complaint to the Commission.
11. Prominent in the body of the applicant's complaint to the Commission was a claim that he had been discriminated against on the basis of age, and had been bullied. He relied again on the fact that another person who had also resided at his rooming house had recently been allocated housing, but that he had not. The complaint set out a detailed narrative of the applicant's dealings with the Mission, HousingFirst, and then with the Department, including a claimed failure by the Department to respond to his second complaint, all of which the applicant considered was unsatisfactory. The applicant referred in the complaint to an upcoming sentencing hearing in a criminal case. The outcome that the applicant sought in his complaint was that he be re-housed in named areas of Melbourne within 12 months, or longer depending upon the sentencing outcome of his case.

The delegate's reasons for terminating the applicant's complaint to the Commission

1. In the reasons for terminating the complaint, the delegate of the President stated that the applicant's complaint was only considered as a complaint of age discrimination against Melbourne City Mission. There does not now appear to be any issue as to treating the applicant's complaint as being limited to age discrimination. Although there were incidental allusions to discrimination on the ground of race and sex, age discrimination was the only substantial basis on which the applicant advanced his submissions to the Court.
2. The delegate referred to the material that the applicant had submitted to the Commission in support of his claim of age discrimination. The delegate summarised the claims made by the applicant as follows, referring to the Melbourne City Mission as "FYS", being a reference to Frontyard Youth Services -

• Youth workers do what they do because they have sympathy for youth so they focus on helping people who fit the idea of what they think is a young person - that is a person 12-16 or 17 years of age.
• You are in the 18-25 age group, which by law means you are classified as an adult. The 12-17 age group are children/teenagers.
• FYS employees have 'working with children' checks and they expect and want to only work with people under 18 years of age.
• FYS employees don't respect their older clients and they bully and deny service to clients over 18.
• A Case Worker would not have sent an email saying 'F**k yes' to a younger client, and only sent it to you because you are older.
• FYS employees did not advocate for you as they were supposed to because you were not deemed young enough (or too old) to receive help.
• Your FYS Case Managers were 31 and 27 years old and to them you are an adult.
• [The other resident at the rooming house] was given housing/more support because he looks/acts younger than you. [The resident] looks like he is under 18 years of age, while you are six foot and can grow facial hair.

1. The delegate referred to the relevant legislation, including the concepts of direct and indirect discrimination found in ss 14 and 15 of the Age Discrimination Act 2004 (Cth), which provide - 14 Discrimination on the ground of age - direct discrimination For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the age of the aggrieved person if: (a) the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different age; and (b) the discriminator does so because of: (i) the age of the aggrieved person; or (ii) a characteristic that appertains generally to persons of the age of the aggrieved person; or (iii) a characteristic that is generally imputed to persons of the age of the aggrieved person. 15 Discrimination on the ground of age - indirect discrimination (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the age of the aggrieved person if: (a) the discriminator imposes, or proposes to impose, a condition, requirement or practice; and (b) the condition, requirement or practice is not reasonable in the circumstances; and (c) the condition, requirement or practice has, or is likely to have, the effect of disadvantaging persons of the same age as the aggrieved person. (2) For the purposes of paragraph (1)(b), the burden of proving that the condition, requirement or practice is reasonable in the circumstances lies on the discriminator.
2. It is also relevant to set out s 33 of the Age Discrimination Act, which provides - 33 Positive discrimination This Part does not make it unlawful for a person to discriminate against another person, on the ground of the other person's age, by an act that is consistent with the purposes of this Act, if: (a) the act provides a bona fide benefit to persons of a particular age; or Example 1: This paragraph would cover a hairdresser giving a discount to a person holding a Seniors Card or a similar card, because giving the discount is an act that provides a bona fide benefit to older persons. Example 2: This paragraph would cover the provision to a particular age group of a scholarship program, competition or similar opportunity to win a prize or benefit. (b) the act is intended to meet a need that arises out of the age of persons of a particular age; or Example: Young people often have a greater need for welfare services (including information, support and referral) than other people. This paragraph would therefore cover the provision of welfare services to young homeless people, because such services are intended to meet a need arising out of the age of such people. (c) the act is intended to reduce a disadvantage experienced by people of a particular age. Example: Older people are often more disadvantaged by retrenchment than are other people. This paragraph would therefore cover the provision of additional notice entitlements for older workers, because such entitlements are intended to reduce a disadvantage experienced by older people.
3. The example given under s 33(b) is apposite, referring specifically to welfare services provided to young homeless people.
4. The delegate concluded that, overall, there was insufficient information to support a claim of direct age discrimination because -
5. even if the applicant could prove that the Mission employees did the acts he alleged, there was insufficient information to support a finding that any such acts were done because of his age or age group; and
6. the applicant's claims appeared to be based on his perception or belief that his age was a factor in what occurred, but the applicant did not refer to or provide evidence of any direct comments about his age by any Mission employees.
7. In addition, the delegate concluded that, overall, there was insufficient information to support a claim of indirect age discrimination because -
8. it was unclear what unreasonable requirement or condition the Mission is said to have imposed that had, or is likely to have had, the effect of disadvantaging people in the same age group as the applicant;
9. to the extent that the applicant may claim that the Mission imposed a requirement that in order to receive assistance under the Frontyard Youth Services program, a person must "look or act like they are in the 12-17 age group" or "not look or act as if they are adults", the delegate was of the view that there was insufficient information to support such claims; and
10. while it was understood that Frontyard Youth Services was a service provided specifically for people between 12-24 years of age, a requirement that only people in this age group can access the service would arguably not be unlawful age discrimination under the Age Discrimination Act by reason of the operation of s 33, which I set out above.

The applicant's submissions

1. In addition to the evidence before the Court, which largely comprised the contemporaneous communications and other documents, the applicant filed outlines of submissions in chief and in reply. In his primary outline of submissions, the applicant referred to events from March 2023 onwards concerning the lodgement of his application to get onto the Victorian Housing Register, and the fact that on 18 July 2023 he ascertained that he had been treated by the Department as ineligible. The applicant alleged that despite providing copies of bank statements to staff of the Melbourne City Mission, they failed to provide his bank balance details in support of his application when it was first made in March 2023. The applicant claimed that the ineligible status of his application was concealed from him by staff of the Mission, and referred to various text and other communications in the material. The applicant alleged that had his application been correctly prepared in March 2023, he would have been in a position to proceed at that time with obtaining an offer of suitable housing. The applicant claimed that the conduct of the Melbourne City Mission of which he complained was attributable to age discrimination, which at one point in his written submission he extended to discrimination on the ground that he was male and of Caucasian appearance.

The application for leave should be refused

1. It is important to identify the question that is before the Court on this application. The question is whether the applicant should be given leave to commence a proceeding. It is not the role of the Court to resolve possible miscommunications that occurred between the applicant, the Mission, the Department, or HousingFirst at the time of his application for entry onto the Victorian Housing Register in March 2023. The applicant has pointed to material that could, depending on all the facts, provide some basis for thinking that the Mission led the applicant to believe that, given that part of the Mission's function in assisting the applicant was to help him with his application, all relevant information had been submitted on the applicant's behalf.
2. But these questions do not form the nub of the applicant's complaint. Rather, the applicant is clearly of the view that the events I have described were not the result of misunderstanding or miscommunication, but were deliberate and intended to harm his interests on the basis of various characteristics that he possesses. An example of this position is the applicant's submissions in relation to a house in Tarneit, in respect of which the Mission assisted the applicant to apply for housing. The applicant relies on the fact that he was presented with documents in relation to the house in Tarneit in early March 2023, which was the same time during which his Victorian Housing Register application was first being prepared. The applicant claims that this illustrates that the Victorian Housing Register application was deliberately undermined by the Mission. The applicant makes similar claims about the financial documents such as bank statements which he later provided to the Mission, claiming that these were sought to further the scheme of the Mission employees to undermine his pursuit of social housing. Additionally, the applicant claims that his personal information was obtained by an employee of the Mission and was used to lock him out of various government services, which was a further form of deliberate victimisation. The applicant's claims as to discrimination on the basis of age really related to his perception that employees of the Mission, the Department, and HousingFirst had embarked on a campaign against him because he did not satisfy their preconception of a person who was deserving of assistance to obtain social housing. This is the context in which I must assess the applicant's application for leave.
3. There is judicial guidance in relation to the discretionary power under s 46PO(3A) of the AHRC Act to give leave to commence a proceeding. In James v WorkPower Inc [2018] FCA 2083, Mortimer J said at [37]-[38], in terms that have been consistently adopted and applied by other Judges of the Court - 37 I am satisfied that the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by an applicant are reasonably arguable, and are - at the least - not fanciful. This is consistent with the language used in s 46P(1A). I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level. 38 There may be a range of other permissible considerations including: (1) the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances; (2) the nature of the allegations made (including whether for example they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be); (3) how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission's termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable; (4) whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay; (5) whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way; (6) the factual and legal complexity of the matters raised by the allegation of unlawful discrimination; (7) whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) does not exhaust the circumstances in which this factor might be considered; and (8) other factors that are often considered in leave applications - such as prejudice to a party. (Emphasis added.)
4. The above guidance does not constitute a checklist to be ticked off in every case. Depending on the circumstances, some considerations may be important, and others not. And some considerations may be determinative.
5. In this case, the determinative consideration is that there is insufficient evidence to suggest that the applicant has a tenable claim. Whatever grievances the applicant has in relation to the making and progress of his application for social housing, there is nothing in the material that would give any cogent support to the idea that he was subjected to any direct or indirect age discrimination, or any other type of unlawful discrimination by any of the Melbourne City Mission, the Department, or HousingFirst. The force of the evidence is simply that, for various reasons, including possible miscommunications and insufficient supporting material relating to the applicant's income and financial position, the applicant's application for entry onto the Victorian Housing Register did not proceed as expeditiously as he would have liked. On the evidence, I do not exclude the possibility that the Mission through oversight failed to ensure that the Department had all the information that was necessary to consider the applicant's application to get onto the Register. But that is not something that arises for determination on this application, which is focussed on whether there is a tenable claim of age-based discrimination. In any event, the evidence is that by August 2023 the applicant became registered, but was then unable to secure the housing that he had in mind.
6. In the above circumstances, it is unnecessary for me to consider the submission made on behalf of the Department that it was not a respondent to the applicant's complaint to the Human Rights Commission in circumstances where the Department was expressly named as a respondent in the applicant's complaint. That point may raise contestable questions of statutory interpretation concerning s 46P(1A) and other provisions of the AHRC Act, and will have to await another case where it has been fully argued on both sides, and where it is relevant to the outcome.

Conclusion

1. The application for leave to bring a proceeding against the respondents is dismissed. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.