Rana v Australian Human Rights Commission

WHITE J DATE: 10 october 2014 PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 On 28 April 2014, the applicant commenced two sets of proceedings against each of the Australian Human Rights Commission (AHRC) and Deakin University (Deakin). 2 Because Deakin challenged the jurisdiction of this Court to hear and determine the claim against it, I conducted a separate hearing in relation to that claim. By the time of the hearing, the applicant had sought leave to amend his originating application and Deakin had made an additional application, namely, that certain of the claims against it be dismissed because they had no reasonable prospects of success. 3 By a separate judgment delivered this day (Rana v Deakin University [2014] FCA 1092), I have determined that this Court does not have jurisdiction with respect of several of the claims which the applicant wishes to advance against Deakin, and that he has no reasonable prospects of success with respect to those causes of action which are within the Court's jurisdiction. 4 Accordingly, this judgment concerns only the claim against the AHRC. The initial hearing of that claim took place on 19 August 2014. The applicant represented himself and, in circumstances to which I will refer shortly, the AHRC did not appear. Deakin also did not appear because the separate hearing of the applicant's claims concerning it had occurred on 23 June 2014. 5 By way of brief background to the claim, I note the following. The applicant was awarded the degrees of Master of International Business and Master of Arts (International Relations) by Deakin in October 2011. The proceedings against Deakin concerned its refusal in 2014 to provide him with a document containing the weighted average marks (WAM) which he obtained for 16 subjects studied at Deakin and its refusal to correct the mark which he had been awarded for the subject Marketing Management in 2009. Although Ms Rooney, the University's solicitor, had initially indicated willingness to seek the WAM from the two faculties, on 6 March 2014 she indicated that the Deakin would not be doing so. The circumstances leading to that refusal are set out in [7]-[10] of [2014] FCA 1092. It is apparent that Ms Rooney was offended by the terms of the communication from the applicant on 5 March 2014. 6 Even before Deakin's refusal of 6 March, the applicant had made a complaint about it to the AHRC under the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act). He alleged that he had been the subject of discrimination or victimisation because of his race, age or disability. The applicant sent further correspondence to the AHRC regarding that complaint, or making a further complaint, during March 2014. Ultimately, by a letter dated 28 March 2014 from Mr Dunkel, a Principal Investigator/Conciliator, the AHRC indicated that it would not take any action on the applicant's complaint or complaints. 7 In these proceedings, the applicant seeks relief under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) in respect of the decision made by the AHRC on 28 March 2014. 8 On 8 May 2104, the applicant filed an interlocutory application seeking an order for the joinder of Mr Dunkel as a party to his claims against the AHRC. However, he did not pursue that application. 9 It seems that the applicant originally commenced two actions in this Court as an attempt to invoke the Court's jurisdiction under s 39 of the Judiciary Act 1903 (Cth) and that, by his joinder application, he had contemplated seeking relief against Mr Dunkel as an officer of the Commonwealth. 10 At the hearing on 19 August 2014, the applicant consented to his second claim (Action SAD 95 of 2014) being dismissed. 11 As I indicated earlier, the AHRC did not appear at the hearing on 19 August 2014. That was because it had filed a notice in both actions submitting to whatever order the Court considered appropriate. After hearing the applicant's evidence and submissions, I reserved my judgment. 12 The applicant's principal complaints were that the AHRC had denied him procedural fairness and, in part, that it had not discharged its functions under the AHRC Act. Given that the applicant had not provided the Court with all the documents, evidencing his complaint or complaints to the AHRC in March 2014 and all the correspondence relating to that complaint or those complaints, it was difficult to assess and determine the applicant's claims. It was also difficult to access a contention made by the AHRC in its correspondence to the applicant that it lacked power to investigate his claims by reason of his having earlier made a complaint to the Victorian Equal Opportunity and Human Rights Commission (VEOHRC). 13 That being so, I took the step of having my Associate request the AHRC to file an affidavit exhibiting all the correspondence between the applicant and it in March 2014 relating to the applicant's complaint concerning Deakin University and, if possible, a copy of the applicant's complaint to the VEOHRC to which it had referred. The AHRC complied with that request by filing an affidavit on 24 September 2014, save that it could not provide a copy of the complaint to the VEOHRC. 14 At the resumed hearing on 2 October 2014, the AHRC appeared and indicated that it consented to an order under s 16(1) of the ADJR Act quashing the decision of 28 March 2014 and to an order remitting the matter to the AHRC for further consideration. 15 The AHRC consent makes it unnecessary to consider the applicant's claims in detail, and I refrain from doing so.