Ali Samandi v Ombudsman NSW

[2020] NSWCATAD 184

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Ali Samandi v Ombudsman NSW [2020] NSWCATAD 184

Hearing dates:

6 July 2020

Date of orders:

20 July 2020

Decision date:

20 July 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Naida Isenberg, Senior Member

Decision:

Application is dismissed for lack of jurisdiction

Catchwords:

ADMINISTRATIVE REVIEW – jurisdiction – dismissal

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Ombudsman Act 1974

Cases Cited:

Azshion v Ombudsman NSW [2016] NSWCATAD 249

Herbert v Workers Compensation Commission [2016] NSWCATAD 28

Texts Cited:

None cited

Category:

Procedural and other rulings

Parties:

Ali Samandi (Applicant)
Ombudsman (Respondent)

Representation:

Solicitors:
Applicant (Self Represented)
Legal Counsel, Corporate, Ombudsman NSW (Respondent)

File Number(s):

2020/00021624

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. The Applicant, Ali Samandi lodged two complaints with the Ombudsman about his treatment while incarcerated, especially during his time at Macquarie Correctional Centre.

2. The Ombudsman, however, in decisions of 27 October 2019 and 25 November 2019, after preliminary investigation, decided to take no further action in response to Mr Samandi’s complaints.

3. By application for review dated 16 January 2020 Mr Samandi asked the Tribunal to review the Ombudsman’s decision, and annexed several pieces of correspondence with various government agencies, including the two decisions of the Ombudsman. I attempted to clarify which decision Mr Samandi sought to have reviewed, and Mr Samandi said that his concern related to his treatment while at Macquarie Correctional Centre. This did not assist because both complaints and the decisions included references to Macquarie Correctional Centre. The submissions of the Respondent were to the effect, that because the Tribunal lacks jurisdiction to deal with decisions of the Ombudsman, it is immaterial which of the decisions is sought to be reviewed. I took the view that Mr Samandi’s application for review related to both decisions.

4. The Ombudsman applied to have Mr Samandi’s application for review dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (CAT Act) on the basis that the application is misconceived and/or lacking in substance.

Legislative scheme

5. The jurisdiction of the Tribunal is set out in s 28 of the CAT Act. Section 28 provides that the Tribunal has "such jurisdiction and functions as may be conferred or imposed on it by under the Act or any other legislation." Relevantly, the Tribunal has administrative review jurisdiction over a decision of an administrator in the circumstances provided for by the Administrative Decisions Review Act 1997 (ADR Act): s. 30(1) NCAT Act. Section 9(1) of the ADR Act provides that administrative review jurisdiction is conferred under enabling legislation and s 4(1) defines "enabling legislation" as that which provides for applications to be made to the Tribunal with respect to a specified matter or class of matters. A decision over which the Tribunal has administrative review jurisdiction is an "administratively reviewable decision": s 7(1) ADR Act and s 30(3) NCAT Act. For the purposes of this matter the only likely “enabling legislation” is the Ombudsman Act 1974.

Consideration

6. In relation to the complaints Mr Samandi made about his treatment at Macquarie Correctional Centre on 1 October 2019, the Ombudsman’s office articulated the complaint as relating to him having been:

1. Charged without adequate evidence or a sufficient investigation into the offence.

2. Forced to plead guilty to the offence.

3. Denied procedural fairness

7. The decision referred to the Ombudsman’s role as an independent integrity agency that holds NSW government agencies and certain non-government organisations to account. It noted that through its complaint handling, review, monitoring, investigation, advice, training and community education, the Ombudsman seeks to improve the administration and delivery of public and community services in the State. Where a public authority acts within its lawful powers and there is no firm evidence of wrong conduct, the Ombudsman will not tell the authority it should have used its power differently.

8. In the second decision, dated 25 November 2019, Mr Samandi’s complaint was identified as pertaining to four issues:

1. Breach of Custodial Operations Policy and Procedures (COPP) in that he had not been given access to legal resources and documents.

2. His classification.

3. That his documents were lost in Macquarie Correctional Centre until November.

4. Corrective Services had not allowed him to contact the following organisations:

1. Australian Human Rights Commission

2. Human Rights Watch Australia

3. NSW Council of Civil Liberties

4. Australian Commission for Law Enforcement Integrity.

9. Based on the information Mr Samandi provided in support of his complaints, the delegate of the Ombudsman did not believe the conduct of staff at Macquarie Correctional Centre constituted administrative wrong conduct. I accept that the complaints were assessed in accordance with s 12 of the Ombudsman Act. Having made preliminary inquiries into the complaints, the delegate exercised his discretion under s 15 of the Ombudsman Act to decline to investigate the complaints further.

10. The application to the Tribunal was for review of the Ombudsman’s decisions to take no further steps in response to Mr Samandi’s complaints about the conduct of Corrective Services NSW, of which Macquarie Correctional Centre is part. It was submitted on behalf of the Ombudsman that the Tribunal does not have jurisdiction to hear and decide Mr Samandi’s application for review.

11. The Tribunal's jurisdiction is not 'at large'. It does not have a general power to review administrative decisions. Its jurisdiction and the powers it may exercise must be found in a statute: Herbert v Workers Compensation Commission [2016] NSWCATAD 28 at [34].

12. The Ombudsman Act  does not confer jurisdiction on the Tribunal to review decisions in relation to the Ombudsman’s discretion to investigate a complaint. There is no other statutory basis on which the Tribunal might review the Ombudsman’s decision. The Tribunal has no discretion to embark upon a review where there is no jurisdiction to do so.

13. The Respondent referred me to the decision in Azshion v Ombudsman NSW [2016] NSWCATAD 249, in which the Tribunal dismissed an application for review of the Ombudsman’s decision not to investigate a complaint. I agree with the approach in that decision.

Order

1. Application is dismissed for lack of jurisdiction

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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

Decision last updated: 20 July 2020