Diri v Board of Studies Teaching and Education Standards

[2014] NSWCATAD 222

Civil and Administrative Tribunal

New South Wales

Case Title:	Diri v Board of Studies Teaching and Education Standards
Medium Neutral Citation:	[2014] NSWCATAD 222
Hearing Date(s):	30 September 2014
Decision Date:	15 December 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N Hennessy, LCM Deputy President
Decision:	Publication of any document lodged with the Tribunal or evidence given before the Tribunal which contains the address of the applicant is prohibited.
Catchwords:	CIVIL AND ADMINISTRATIVE TRIBUNAL - suppression order - fears for safety
Legislation Cited:	Anti-Discrimination Act 1977 (NSW)
Cases Cited:	State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69
Category:	Interlocutory applications
Parties:	Tavenisa Diri (Applicant) Board of Studies Teaching Education Standards (Respondent)
Representation
- Solicitors:	M Diri (Applicant in person)
File Number(s):	1410094
Publication Restriction:	Pursuant to section 64(1), Civil and Administrative Tribunal Act 2013-restricition on publication of information that contains the address of the applicant is prohibited.

REASONS FOR DECISION

Introduction

1. Ms Diri complains under the Anti-Discrimination Act 1977 (NSW) that the Board of Studies Teaching and Educational Standards NSW (BOSTES) has discriminated against her both directly and indirectly on the ground of her race (Fijian) in the provision of goods and services or by a qualifying body: Anti-Discrimination Act, s 12 and s 19. Ms Diri applied to join the Minister for Education and the Department of Education and Communities as respondents to the complaint and for her name, address and any other identifying information about her to be supressed. She subsequently withdrew the joinder application and we have not determined it. These reasons relate only to the application for a suppression order.

The complaint

1. In 2013 Ms Diri applied to the Department of Education and Communities to be employed as an English teacher. BOSTES assesses a person's eligibility to be accredited as a teacher and Ms Diri duly applied for accreditation. On 3 May 2013 BOSTES issued Ms Diri with a Statement of Eligibility to be accredited as a Teacher. The statement was that:

   As you have gained the majority of your qualifications that are assessed for teaching in a country where English is not the main language, you will be required to demonstrate to your prospective employer your proficiency in English by satisfactorily completing an acceptable English language test. Details on this policy are provided at Hyperlink reference not valid.your prospective employer is responsible for ensuring your satisfy the requirements of the Institute's English language policy.

2. After Ms Diri lodged her complaint, the Institute of Teachers has merged with the Board of Studies NSW and is now known as BOSTES. The policy on which BOSTES relied in refusing her accreditation as a teacher is the "Policy on the English Language Proficiency of Teachers for Provisional or Conditional Accreditation" (the Policy). That policy states that and the contents of the issued in relation to her on 3 May 2014. In summary the policy states that:

   "[A]n English language proficiency test is not required for applicants who have undertaken the full four years of required higher education study (or qualifications assessed as comparable) in English in either:

   Australia, New Zealand, United Kingdom (England, Scotland, Wales and Northern Ireland), the United States of America, Canada or the Republic of Ireland

3. In the statement to Ms Diri, BOSTES stated that the qualifications assessed to determine her eligibility for accreditation as a teacher were a Bachelor of Arts from the University of the South Pacific, Fiji in 1987 and a Postgraduate Diploma in Education from the same university in 1990. Because BOSTES decided that Ms Diri did fall within the exception, she is required to undertake the Professional English Assessment for Teachers (PEAT) test.

4. Ms Diri disputes BOSTES interpretation and application of the policy in her situation and alleges that the decision that she does not fall within the exception amounts to race discrimination. Her argument is essentially that she did obtain "the majority" of her qualifications in countries where English is the main language, namely the United States and Australia. BOSTES says those qualifications are irrelevant under the statutory and policy scheme.

Application for non-disclosure order

1. The order Ms Diri seeks is for non-disclosure of her 'personal particulars including her name, family history and profile in any publication of a decision." She seeks that order because she says it is necessary for the sake of her safety and security in Australia.

2. Ms Diri applies under s 64(1)(a)-(d) of the Civil and Administrative Tribunal Act 2014 (NSW) (NCAT Act) for a non-disclosure order. That provision states that:

   64 Tribunal may restrict disclosures concerning proceedings

   (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

   (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

   (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal,

   (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

   (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

   (2) The Tribunal cannot make an order under this section that is inconsistent with section 65.

   (3) The Tribunal may from time to time vary or revoke an order made under subsection (1).

   (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

3. We adopt the principles set out in State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69 interpreting a similar provision in the Administrative Decisions Tribunal Act 1997 (NSW).

4. Ms Diri is a refugee and has been granted protection in Australia under s 36 of the Migration Act 1958 (Cth). She referred to a decision of the Refugee Review Tribunal relating to her and dated 10 March 2014 which concluded that "the applicant has a well-founded fear of persecution in Fiji in the reasonably foreseeable future for reason of her political opinions and that she is a refugee." The Refugee Review Tribunal found that Ms Diri "faces a real chance of being perceived as a vocal critic of the Regime in Fiji." The Refugee Review Tribunal also found that Ms Diri holds political opinions which, if expressed in Fiji, may give rise to a real chance of monitoring, intimidation, harassment, questioning, detention and other mistreatment and/or humiliation, amounting cumulatively to serious harm (in Fiji)." The respondent made the point that the Refugee Review Tribunal did not make a finding that there is any threat to Ms Diri's safety in Australia.

5. At the hearing Ms Diri stated that a 'strange Fijian person' had come to the place where she lived and that, as a result, she had to leave that address. She does not know how that person obtained her address but attributes this visit to her anti-Fijian regime activities. She also mentioned that she has received threats on Facebook. While there was no other evidence of the circumstances of the visit or the threats, for the purposes of these proceedings I accept what Ms Diri says about them.

6. I am satisfied on the basis of this evidence that the Tribunal should not disclose Ms Diri's address or any other information that may lead to the discovery of her address. It is not necessary or desirable to supress her name, family history or "profile" because I am not satisfied that the fact that she is an applicant in proceedings before the Tribunal jeopardises her safety or that of her family in any way. In those circumstances it is not 'desirable' to make such an order.