El-Kassir v Commissioner of Police, NSW Police Force

[2018] NSWCATAD 232

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	El-Kassir v Commissioner of Police, NSW Police Force [2018] NSWCATAD 232
Hearing dates:	6 June 2018
Date of orders:	05 October 2018
Decision date:	05 October 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M. Tibbey, Senior Member E. Hayes, General Member
Decision:	Application dismissed.
Catchwords:	HUMAN RIGHTS – disability discrimination – whether disability taken into account – whether Applicant treated less favourably due to disability.
Legislation Cited:	Anti-Discrimination Act, 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW).
Cases Cited:	Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Nicholls and Nicholls v Director General, Department of Education and Training (No 1) [2009] NSWADTAP20
Category:	Principal judgment
Parties:	Hani El- Kassir (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Counsel: E. Raper (Respondent)   Solicitors: Self-represented (Applicant) K&L Gates (Respondent)
File Number(s):	2017/00219645

REASONS FOR DECISION

Background and Procedural Matters

1. This was an application for determination of a complaint by the Applicant that he was discriminated against on the ground of a disability, relying on ss49A, 49B, 49C, 49D and 53 of the Anti-Discrimination Act 1977 (NSW).

2. The complainant lodged his complaint with the Anti-Discrimination Board on 14 March 2017 alleging that he was discriminated against in respect of the period 1 February 2004 to 14 March 2017. On 10 March 2017 he emailed that Anti-Discrimination Board stating:

“I would like to make it crystal clear from the outset that this complaint relates to all events that had occurred right from the beginning of my involvement with the NSWPF Recruitment process that is from February 2004 to March 2017.”

3. The Anti-Discrimination Board accepted his complaint for investigation only for the period 25 August 2016 to 14 March 2017. All events prior to that were declined and not investigated by the ADB. The Applicant was advised by the ADB by letter of 20 April 2017 that the ADB declined to investigate all matters predating 25 August 2016.

4. The ADB investigated the complaint of the Applicant and declined his complaint as lacking in substance pursuant to Section 92(1)(a)(i) of the Anti-Discrimination Act 1977.

5. On 31 October 2017 the Tribunal heard the Applicant’s application for leave for the complaint to proceed to hearing before the Tribunal. Deputy President Hennessy granted leave to proceed pursuant to s93A(1) of the Anti-Discrimination Act 1977 (NSW), for the reasons set out in her decision.

6. Deputy President Hennessy noted at paragraph 4 of her Reasons for Decision that the President of the ADB had declined to investigate all allegations of the Applicant relating to the nine prior applications he made to join the NSW Police Force ( i.e. matters predating 25 August 2016).

7. On 13 April 2018, on the application of the Respondent, the Tribunal made orders that any cross-examination of Senior Constable Gardiner would occur by telephone. In the course of making the orders the Tribunal re-stated that the period that would be the subject of the hearing of the Tribunal is the period 25 August 2016 to 14 March 2017, being the period of the Applicant’s most recent application to join the NSW Police Force.

8. At the commencement of the hearing of the matter on 6 June 2018, the Tribunal reiterated that the events the subject of the hearing were the events that occurred from 25 August 2016 to 14 March 2017. The Applicant was given time to consider whether he wished to proceed with the hearing or wished to withdraw his application. He elected to proceed with his application and with the hearing.

9. The Applicant applied to appear by telephone. The application was unopposed by the Respondent. Leave was given for the Applicant to appear by telephone pursuant to s38(1) of the Civil and Administrative Tribunal Act 2013 (NSW).

Legislative Framework and Issues for Determination

10. The issue for determination in this hearing was whether the Applicant had been discriminated against on the ground of a disability, as defined in s49(1)(a) of the Anti-Discrimination Act:

“A person (“the perpetrator”) discriminates against another person (“the aggrieved person”) on the ground of disability if the perpetrator:

(a) on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability”.

11. Thus, in order to succeed in this complaint the Applicant must prove that in the assessment of his application of 25 August 2016 to join the Police Force he has been treated “less favourably” than others in the same or similar circumstances but without depression (differential treatment) and that at least one of the reasons for this treatment was the disability ( i.e. that the cause/reason or one of the causes/reasons the differential treatment was the disability: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5). These tests are as stated in the decision of Deputy President Hennessy of 31 October 2017 at [10] – [19].

12. Disability is defined as follows in s49A of the Anti-Discrimination Act:

49A Disability includes past, future and presumed disability

A reference in this Part to a person's disability is a reference to a disability:

(a) that a person has, or

(b) that a person is thought to have (whether or not the person in fact has the disability), or

(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or

(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).

13. There may be more than one reason for an act, but if a discriminatory reason is one of the reasons, then that renders the act unlawful: Anti-Discrimination Act, s4A.

4A Act done because of unlawful discrimination and for other reasons

If:

(a) an act is done for 2 or more reasons, and

(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),

then, for the purposes of this Act, the act is taken to be done for that reason.

14. The disability alleged by the Applicant in his Compliant before the Anti-Discrimination Board is depression. He alleges that in relation to his first application of 2004, the NSW Police Force sent him a letter from C Borton dated 30 March 2004 stating in part:

“there are concerns with the fact that you have a history of depression and are currently taking medication”.

15. The Applicant states that “This indicates that decisions made by the NSWPF Recruitment Branch at that time were the result of me having a disability”.

16. The submissions lodged on behalf of the Applicant after the hearing refer to the alleged disability as being “post-traumatic stress disorder (PTSD), depression, anxiety and schizophrenia”. The Tribunal will simply refer to “disability” in these Reasons for Decision as, in light of the ultimate findings of the Tribunal, it is not necessary to decide whether the Applicant has sufficiently notified the Respondent that he seeks to rely on the additional alleged conditions.

17. In this present application to the Tribunal, the Applicant alleges that evidence as to his disability (whether present, past, possible future disability or presumed disability) from previous applications to join the Police Force has been taken into account in refusing his application of 25 March 2016 to join the NSW Police Force.

18. The Applicant bears the onus of proof of his allegation of discrimination, on the balance of probabilities.

19. In seeking to prove his claim, the Applicant relied upon his Complaint as stated to the ADB and other documents submitted by him and forming part of the report of the President of the ADB (the President’s Report), his cross-examination of Senior Constable Gardiner and submissions in relation to her report to her superiors (which also touched upon other aspects of his claim).

20. The Respondent contended that the application of the Applicant had been refused due to his lack of candour in revealing issues in his past that could have reflected adversely upon his application. This lack of candour and the nature of those issues in the Applicant’s past, were the reasons that the Respondent determined that the Applicant was not suited for the position of police officer and declined to progress the application further.

21. The Respondent denied taking into account the Applicant’s alleged disability (whether past, present, presumed or possible future depression) in deciding not to progress the application further.

22. The Respondent relied on documents submitted by the Respondent to the ADB and forming part of the President’s Report, affidavits of Senior Constable Julie Gardiner dated 28 March 2018 and submissions of the Respondent. The affidavit of Mr Leslie Patrick Maroun dated 10 April 2018 was not admitted into evidence as it concerned events that occurred after the assessment of the application.

Facts of this case

23. The Applicant submitted a “Professional Suitability Application” (‘PSA’) on 23 November 2016. This is the first stage of a multi-stage process of application to the NSW Police Force. The Tribunal accepts the Respondent’s evidence, contained in Senior Constable Gardiner’s affidavit at paragraphs [8] - ]9] that an applicant who fails at the PSA stage is considered “not competitive” and their application is not progressed through to the later stages of the application process. Later stages of the application process include:

1. A Police entrance Exam;

2. Vetting and background checks;

3. Physical and psychological testing;

4. A medical assessment; and

5. An interview before a three-member panel.

24. Ms Gardiner’s evidence is that some documents are mandatory and that the PSA states that “Failure to upload all mandatory documents with your application will result in your application being rejected.” The evidence tendered showed that Mr Kassir failed to upload his birth certificate but this was eventually provided. He was given an opportunity that is not necessarily provided to all Applicants to provide those documents and he did so.

25. Once that birth certificate was provided Ms Gardiner commenced inquiries to verify the information provided by Mr El-Kassir.

26. On 24 January 2017 Ms Gardiner emailed the Applicant asking for further information in relation to the following:

1. An incident that occurred in October 2015 outside Bankstown Library, declared by the Applicant in his PSA (‘the first Bankstown Library incident’);

2. The suspension of his taxi driver’s licence in 2007, declared by the Applicant in his PSA;

3. Previous applications to or employment with other law enforcement agencies, which he had declared in his PSA; and

4. An incident on 23 November 2015 at Bankstown Library that he had not referred to in his 2016 PSA (‘the second Bankstown Library incident’).

27. In relation to the first Bankstown Library incident, it appears from the evidence that Ms Gardiner was satisfied with the explanation provided by the Applicant, as it did not appear to have been a matter for further inquiry.

28. In relation to the suspension of the taxi licence in 2007, the Applicant and Ms Gardiner had a telephone conversation on 27 January 2017 and the Applicant replied by email on 27 January 2017 stating that the reason he was suspended in 2007 was that he had allowed two passengers to re-enter his taxi after one had assaulted an intoxicated male.

29. The Applicant stated in response to a follow up email from Ms Gardiner regarding disciplinary action whilst he was a taxi driver:

“Basically from what I recall, in 2007 at Sydney CBD, 2 passengers who were inside my taxi while I was stopped at the lights and got into an argument with what appeared to be an intoxicated male who was walking along the street. This male had 1 or 2 friends within, which likely explains how the incident was reported to the Ministry of Transport. I was told to wait for them as they got out of the taxi. One of the passengers assaulted the male then got back into my taxi. I believe I was suspended as a Taxi driver because I should of (sic) not let the 2 passengers back into my taxi after one of them had assaulted someone…”

30. Ms Gardiner’s evidence is that on 7 February 2017 she received an email from the Roads and Maritime Service in response to her request for information verifying the suspension of the licence. The RMS information indicated that the Applicant was issued with a taxi licence on 30 January 2007, that there were a number of complaints relating to unnecessary use of the car horn, verbal abuse, touting for passengers, sexual harassment and road rage by the Applicant. Two of these complaints were investigated and substantiated and a third was anonymous and could not be investigated. Details of the specific incidents were disclosed in the RMS incident are set out in Ms Gardiner’s affidavit at “JG – 4”.

31. Details of the two complaints that were substantiated, as notified to Ms Gardiner, are set out below.

32. The first complaint, on 10 April 2007, said to involve “noise – unnecessary use of horn, road rage by driver and verbal abuse of threat” was described as follows:

“Was driving down to Star City to pick up my daughter to take her home. A RSL cab T4601 was going the street (sic) beeping the horn all the time to get passengers. I pick up my daughter the taxi driver screamed out to me ‘you fucken Aussie cunt you took my fare’, he said to me ‘get out the car (sic) I want to bash the bloody shit out of you’. I refused he went down the road beeping his horn until he ran in the back of another car and he started abusing them.”

33. The source was said to be a “road user”. It was investigated by the MOT and found justified.

34. The second incident, said to have occurred on 11 April 2007, and to involve verbal abuse or threat, noise – unnecessary use of horn, touting for passengers and sexual harassment, as reported by a witness or bystander, was as follows:

“George and Bridge Street was walking down the street with friends saw T4601 honking his horn and screaming out to a girl in her twenties walking down the street, he was giving out (sic) sexual expletives. Also notice (sic) the driver was harassing all the girls on the street screaming out sexual advances, as he went down the street. When driver notice that we were watching him he called out to us “This is how we treat every girl”. I have two witnesses and I want something done about this driver, we were all very frighten (sic) of this incident and require feedback”.

35. That complaint was also investigated by the Ministry of Transport and found to be substantiated.

36. As a result of the investigation, the Applicant’s licence was suspended on 25 May 2007. He was issued two ‘show cause’ notices, did not respond and on 11 July 2007 his taxi licence was cancelled.

37. Ms Gardiner’s evidence is that she formed the view that at no stage of the PSA process had the Applicant disclosed the cancellation of his licence, only that it had been suspended. She states in her affidavit at paragraph 32 that she formed the view that the omission was deliberate as the loss of a taxi licence (and therefore a source of income) is not something that would be easily forgotten.

38. In response to this information, in his correspondence with the ADB, by letter of 20 June 2017, the Applicant states that:

“These complaints are not supported or proven by any evidence including any relevant witnesses at the time” and that “if they are trying to suggest that this information is an indication of adverse background, then I ask them to refer to the forensic psychiatry report from Dr Robert Hampshire dated 28 January 2011. In summary this report demonstrates that I was taking incorrectly prescribed antipsychotic medication around that time. As a result my judgement and higher executive functioning may well and truly been impaired to the point that I may have demonstrated such adverse behaviour”. He says further “to the best of my knowledge at the time of providing Julie Gardiner with further information, I believed that my taxi driver’s licence was suspended in 2007. In any case I am not quite sure what difference it makes whether I declared my taxi driver’s licence was cancelled or suspended. What matters is that I told the truth to the PSA by answering ‘yes’ to the following question: ‘Have you ever had disciplinary action taken against you in the course of your employment due (but not limited) to: inappropriate or poor conduct, inappropriate or poor behaviour, inappropriate or poor performance?”

39. Further, the Applicant states that he believes that the initial explanation he provided to Ms Gardiner “was forthcoming”.

40. The second Bankstown Library incident in November 2015 involved the police allegedly giving the Applicant a ‘move on’ direction. The Respondent clams that the incident was recorded by the NSW Police as an event, COPS E60115829, as a fight in the technical section of Bankstown Library. It was not declared in the PSA.

41. Ms Gardiner’s evidence is that in his telephone conversation with her on 27 January 2017, the Applicant initially that he could not remember the incident, but then gave an oral explanation of it. He was asked to provide a written explanation and stated that he was attacked by another student and defended himself. He stated that he did not declare the incident because “I was the victim in this case.”

42. In cross-examination Ms Gardiner stated that whilst she recalls that she did see a file cover of a previous application that indicated that the Applicant had failed the medical component. She stated that there was no detail, just “P” or “F” and she saw that there was an “F.” She was firm in stating that that was not the reason, or one of the reasons for her recommendation that the application be refused as uncompetitive. She emphasized that because the application was a multi-staged process, with the medical suitability of an application to be assessed by qualified officers after the initial stage of the application; it was not her responsibility to consider a present, past or presumed medical condition. She stated that she would not have been qualified to make such an assessment and that she did not attempt to do so.

43. Ms Gardiner also stated, in answer to questions put by the Applicant in cross-examination, that when the application was given to her by her case manager to assess at the initial stage of the application, she had no prior knowledge of the Applicant or his previous applications. She also said that she did not consult others in her area, such as Mr Hudson, Mr Burke or Mr Paul about the application. She was not shaken in cross-examination on these matters and her evidence on those matters is accepted by the Tribunal.

44. The Tribunal accepts that evidence, firstly because it was given forthrightly, with an appropriate concession that she had seen the “F” on a cover sheet of a previous application. Secondly, there is no indication in the recommendations made by Ms Gardiner in her report to Mr Hudson that one of the reasons for not recommending the Applicant was any present, previous or presumed medical condition. The reasons provided concern character and integrity.

45. At the conclusion of the hearing, the Tribunal sought a copy of the report made by Ms Gardiner to her superior, Mr Hudson, regarding whether or not the application of the Applicant was competitive and should be progressed or should be rejected. The Tribunal indicated to the parties that it may assist the Tribunal, as that document had not been submitted during the hearing. Both parties were invited to provide, to the Tribunal and each other, any submissions regarding that document, if available.

39. The report was provided by the Respondent after the hearing. The report outlines, in detail, the specific individual matters that led to the recommendation of Ms Gardiner, then ends with a recommendation as follows:

“I have concerns about this applicant in relation to the non-declaration and the limited information that the applicant does eventually declare in relation to the above listed events and information.

The applicant, during the application process, has not been forthcoming with his original application, he did not complete the application correctly and/or in full details. He also did not supply the mandatory document initially when requested, without question and he has phoned PRB and became argumentative with a Case Manager.

When I have spoken to the applicant or received information from him, he only provides limited information, he is belligerent and problematic.

The applicant’s attitude and action displays a lack of character in itself that the NSW Police Force require in a serving member. I recommend the applicant be failed. Forwarded for determination by the Manager, Police Recruitment Branch.”

47. The Applicant, when asked in the PSA about whether he had applied to any other services, stated in part, in relation to his application to the Victorian Police that:

“Victoria Police (2011) I believe, application was not successful. I had reason to believe I was discriminated against based on my previous medical condition, this led me to take Victoria Police to the Victorian Civil and Administrative Tribunal which subsequently led to a hearing:”

48. Ms Gardiner states in her report that: “I confirmed with Victoria Police that EL KASSIR’s previous Victorian Police application was failed medically in 2/2012.”

49. During the PSA, Ms Gardiner’s affidavit states that she made it clear to the Applicant that in assessing his present application she did not have access or regard to his previous applications, as was also stated on the PSA form itself. She was aware of a “previous medical condition” only to the extent that the Applicant disclosed it in his application of 25 March 2016, as set out above.

Consideration of the Evidence

Was the application found to be uncompetitive “on the ground of” a disability?

50. The Applicant, in his complaint to the ADB and in his post-hearing submissions, stated repeatedly that those considering his most recent application “must have known” of his previous applications and “must have been aware” that he had previously been diagnosed with a medical condition, either depression, PTSD, anxiety and/or schizophrenia . This submission was put in various ways by the Applicant but came back to that assertion. This is despite Ms Gardiner advising the Applicant during the process of assessment that only his own current application was being considered and that he could not rely on any material filed by him at any time prior to that application. On the PSA form, this was also prominently notified to anyone intending to complete the application form.

51. The Tribunal needs to consider, on the balance of probabilities, whether there is evidence to support that assertion that any present, past, future or presumed disability played a part in the decision to reject the Applicant’s application as being uncompetitive. Was it “a reason” for the decision?

52. The highest the evidence for the Applicant rises is the fact that Ms Gardiner saw the “F” for “fail” on the cover sheet of an earlier application regarding medical issues and that in relation to the Victorian Police application she checked and was told that he had failed for that reason. However in both of those cases, the “F” on the cover sheet and verification regarding the Victorian police application, it appears that there was no detail provided to her that would lend weight to the allegation that she took any present, past or presumed disability into account in making her assessment of the suitability of the Applicant for the position. There were no medical reports or assessments before her and she asserts that she did not have access to previous applications made by the Applicant. There is no evidence to the contrary, except as indicated above.

53. Additionally, Ms Gardiner was, due to her employment, well aware that the process was a multi-staged process and that hers was an initial screening at the first stage of the process. The Tribunal accepts her evidence that the stages of the process of considering an Applicant for the police force are:

• consideration of the on-line suitability application (“PSA”), police entrance exam,

• vetting and background checks,

• physical and psychological testing, medical assessment and

• interview before a three member panel.

54. As Ms Gardiner stated in giving evidence, she did not have the skills, qualifications, and/or experience to undertake a medical assessment, which is undertaken by other officers at a later stage of the assessment process. The Tribunal accepts that evidence as to the process and her role in it. There was no evidence to the contrary.

55. The Applicant has provided, to the ADB and to the Tribunal, a number of papers taken from his previous applications and old medical reports. Unless he can demonstrate, on the balance of probabilities, that these were taken into account in the assessment of his most recent application, he cannot succeed in his claim of disability discrimination in relation to his most recent application to join the police force. The Tribunal finds that this had not been proven on the balance of probabilities.

56. The Tribunal finds that Ms Gardiner made her recommendation on the basis of the character and integrity issues identified in her recommendations.

57. In so finding, the Tribunal also gives weight to the fact that there is a multi-staged process of application and the medical component is a later part of the application, to be undertaken by others, not Ms Gardiner.

58. The Tribunal finds that the evidence available to Ms Gardiner, was that the Applicant had:

1. not provided correct information as to the reasons for the suspension of his taxi licence;

2. understated the gravity of the conduct alleged and the reasons for suspension and cancellation of the taxi licence;

3. not admitted that the licence was cancelled, rather than merely suspended;

4. failed to refer to the ‘move on’ Direction in November of 2015 when invited to do so, then provided a convoluted story that had no reflection in any reports made by police at the time.

59. These are serious matters going to the trustworthiness of information provided by a person seeking to be recruited as a member of the Police Force and therefore in a position of trust in the community, required to be truthful and reliable.

60. The records of the RMS as to substantiated complaints made regarding the conduct of the Applicant whilst he held a taxi licence were taken into account by the Respondent.

61. The records of the RMS as to substantiated complaints provided a basis for a view that the Applicant could not be relied upon to deal with members of the public in a way that is courteous and professional at all times.

62. The Tribunal finds that the complaints against the Applicant that were sustained by the RMS involved serious incidents of conduct that were reasonably regarded by the Respondent as being inappropriate for a police officer.

63. Nor in his application of 25 March 2016 and interaction with the Respondent regarding the application, did the Applicant provide any explanation to account for such conduct, such as being diagnosed wrong medication. He provided that explanation during these proceedings, saying that in 2011 he had been on anti-psychotic medication and that the NSW Police Force held a report that “would show this” from a previous application.

64. If the Applicant wished to have any particular disabilities taken into account in the PSA assessment, he needed to have frankly admitted the conduct and supplied a medical report indicating the likely reasons for such conduct.

65. He did not do that. He failed to fully declare the relevant conduct fully and did not provide any medical explanation of his conduct that may have been available to him. He also understated and misstated the conduct and the outcome of the conduct, which was cancellation of the taxi driver’s licence.

66. Lest it be thought that such inappropriate communication was a matter in the past, Ms Gardiner also details that during the PSA process of assessing the 25 March 2016 application the Applicant spoke inappropriately to her colleague and was “belligerent and problematic” in his communication with her. These are important matters of character and communication that would reasonably justify refusal of the application of the Applicant, especially with combined with a lack of candour and reliability in providing full and frank disclosure in relation to important character and conduct information sought in the PSA.

67. It is appropriate and reasonable for Ms Gardiner to refer to such matters in view of the terms of the Code of Conduct and Ethics and the Statement of Values set out in the Standards of Professional Conduct annexed to her affidavit as JG-5. The values that officers should seek to uphold include “integrity” and the Code of Conduct of Ethics includes a requirement to “behave honestly and in a way that upholds the values and good reputation of the NSW Police Force whether on or off duty” and to “treat everyone with respect, courtesy and fairness”.

68. The assertions of the Applicant that Ms Gardiner “must have known” of the Applicant’s previous applications and his previous diagnosis of depression appear to be fixed beliefs of the Applicant but they are not supported by probative evidence, except to the extent discussed above.

69. The Tribunal accepts the evidence of the Respondent that each application by a person seeking to be accepted into the police force is considered afresh, on its terms, rather than cross-referenced against previous applications and that medical issues, and therefore any alleged disability, are not considered by Ms Gardiner, who processes the first stage of a seven stage application.

70. The Tribunal finds that reasons provided by the Respondent for finding the application uncompetitive are not flimsy excuses to camouflage refusal due to disability, as the Applicant suggests. They are important matters that the Respondent was entitled to consider carefully and which reasonably justify refusal to progress the application further.

71. For the above reasons, the Tribunal accepts that at the PSA stage of the assessment process, the application of the Applicant was found to be uncompetitive due to the disclosed reasons, as set out in Ms Gardiner’s report to her superiors. These were the “real reasons” for the refusal of the application.

72. In Nicholls and Nicholls v Director General, Department of Education and Training (No 1) [2009] NSWADTAP20, the Appeal Panel of the then ADT (now NCAT) stated at [28]:

“The question a Tribunal should ask when addressing the causation element of direct discrimination is whether the person’s sex, race, disability, etc (including the extended definitions of those grounds) is at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for the treatment. For that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment.”

73. The Tribunal accepts that the ‘real’, ‘true’ or ‘genuine’ reason for not permitting the application to proceed further were the reasons disclosed by the Respondent rather than being due to a disability.

74. Although the submissions filed on behalf of the Applicant after the hearing invited the Tribunal to draw inferences that the Respondent was aware of his disability and took it into account in assessing the application, there is no basis for drawing such inferences where there is a clearer, logical explanation for the decision, as in this case.

Differential Treatment

75. The Applicant did not present evidence of any actual comparator.

76. If the Tribunal considers a hypothetical comparator (as referred to in Deputy President Hennessy’s decision of 31 October 2017 at [15]), the Applicant has not demonstrated that a hypothetical comparator without the disability would have been treated differently.

77. The Applicant argued in his submissions that the Police Force had allowed entry to others who had significant records of past convictions. However there are two impediments to that argument being accepted: firstly the information regarding that matter that was sent as part of the submissions was not tendered in evidence before or at the hearing. Secondly there was no evidence before the Tribunal as to whether those who were permitted entry into the police force had voluntarily and fully disclosed those convictions and/or had medical or other exculpatory evidence that was placed before the police force in the assessment process. The Tribunal cannot, therefore draw any conclusion that such persons were in the “same” position as the Applicant or in a position that was “not materially different.”

78. Thus on the “differential treatment” test, the Applicant has not made out his case and the application fails at that point.

79. The Applicant has not proven, on the balance of probabilities, as required by s49B(1) of the Anti-Discrimination Act, that the Respondent would have rejected another applicant without a disability who failed to accurately disclose that his taxi licence authority had been cancelled (rather than suspended), failed to accurately disclose the reasons for that cancellation and who failed to disclose a ‘move on’ direction or who was otherwise in a position not materially different from that of the Applicant.

Conclusion

80. The Applicant has not proven, on the balance of probabilities, that at least one of the reasons for rejecting the application of the Applicant was his depression: Anti-Discrimination Act s4A and 4B (1) and (2).

81. Nor has he established that he was treated any differently in the assessment of his application from a person without his alleged disability who failed to disclose the matters, or matters that were not materially different from those that the Applicant failed to disclose.

82. The Application is therefore dismissed.

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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: 05 October 2018