Elbashir v Focus Act Ltd (Discrimination) - [2024] ACAT 76

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ELBASHIR v FOCUS ACT LTD (Discrimination) [2024] ACAT 76

DT 32/2024

Catchwords: DISCRIMINATION – summary dismissal application – whether application lacking in substance or otherwise an abuse of process – where applicant self-represented – where applicant lacked understanding of tribunal procedures – discretionary considerations

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 32
Discrimination Act 1991 ss 7, 8, 10
Human Rights Commission Act2005 ss 53A, 78

Cases cited:Andreopoulos v University of Canberra [2020] ACAT 95
Assal v Department of Health, Housing and Community Services [1990] HREOCA 8
Clinch v Rep (No. 2) [2020] ACAT 68
Errington v ACT Planning and Land Authority [2019] ACAT 47
Farah v Sandilands [2021] ACAT 92
Financial Integrity Group Pty Limited v Scott Farmer [2009] ACTSC 143
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69
Liu v University of Melbourne [2002] VCAT 896
McGhie v Aboriginal Legal Service (NSW/ACT) Limited [2023] ACAT 27
Orfali v Australian Information Commissioner [2016] FCA 1386
Phillips v RSPCA Victoria [2018] VCAT 2028
Pikula-Carroll v ACT Corrective Services [2023] ACAT 33
Reurich v Shoalhaven Heads Bowling and Recreation Club Ltd [2020] FCA 427
Sirohi v Director-General, Justice and Community Safety Directorate [2019] ACAT 84
State Electricity Commission v Rabel [1996] VSC 78
Luxton v Vines [1952] HCA 19

Tribunal:Presidential Member J Lucy

Date of Orders:  18 September 2024
Date of Reasons for Decision:      18 September 2024
Date of Publication:  25 September 2024
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          DT 32/2024

BETWEEN:

NOURELDIN ELBASHIR
Applicant

AND:

FOCUS ACT LTD
Respondent

TRIBUNAL:Presidential Member J Lucy

DATE:18 September 2024

ORDER

The Tribunal orders that:

The applicant’s application is dismissed.
………………………………..

Presidential Member J Lucy

REASONS FOR DECISION

The respondent (Focus ACT) has applied for the summary dismissal of Mr Elbashir’s complaints of vilification and unlawful discrimination on the grounds of race.
I have dismissed Mr Elbashir’s complaint of vilification because I have found that it is bound to fail.
I found that Mr Elbashir’s complaint of racial discrimination lacked substance, as Focus ACT contended, when his written material was considered together with the oral evidence he gave at the summary dismissal hearing. I considered whether it would be in the interests of justice to give Mr Elbashir another opportunity to articulate his claim or provide evidence in support of it. I decided that it would not be, given that he has already had several opportunities to do so.
Accordingly, I have also dismissed Mr Elbashir’s discrimination claim.

Background

On 10 October 2023, Mr Elbashir made a complaint to the ACT Human Rights Commission about race discrimination in the course of his employment as a family engagement and transport support worker with Focus ACT. He claimed that his direct supervisor and direct manager treated him badly, humiliating him. An example he gave is that his manager sometimes cancelled his shifts immediately after he had accepted them. Mr Elbashir also claimed that shifts allocated to him around Christmas time “disappeared” and that his employer humiliated him by requiring him to do cleaning jobs.
Mr Elbashir sought an apology and $1,500,000 in compensation.
Focus ACT responded to the complaint, stating that during Mr Elbashir’s period of employment, concerns were raised about his conduct and performance, and he was subject to three performance counselling meetings. It said that only seven of Mr Elbashir’s 216 shifts were cancelled, some by him, and that this was not unusual.
The Discrimination Commissioner informed Mr Elbashir by letter dated 20 May 2024 that she had formed the view that there was no or insufficient information to support Mr Elbashir’s claim that he was subjected to unfavourable treatment or an unreasonable requirement on the basis of his race or skin colour. She stated that she had decided to close his complaint under section 78(2)(c)(iv) of the Human Rights Commission Act 2005 (HRCA) as she considered that it was lacking in substance.
Mr Elbashir requested the Human Rights Commission to refer his complaint of unlawful discrimination to the tribunal under section 53A of the HRCA. The Discrimination Commissioner referred his complaint to the tribunal on 6 June 2024.
On 26 June 2024, the Tribunal made directions in this matter to prepare it for hearing. The Tribunal made directions in the following terms, requiring Mr Elbashir to file with the tribunal and give to Focus ACT by 17 July 2024:
(a) a document setting out each act, fact, matter, circumstance or thing which, either individually or taken collectively, amounts to unlawful discrimination under the Discrimination Act 1991 and which was the subject of the complaint to the Human Rights Commission;
(b)     a written statement of any witness on whose evidence the applicant relies.
A witness statement is a statement made by the applicant or any other person who has relevant information to give about the applicant’s case. The statement should set out the evidence the witness will give about the things that the witness has seen, heard, observed or has knowledge of, that relate to the applicant’s complaint. The applicant’s statement should set out what his protected attribute is, and when and how the respondent became aware that the applicant had that attribute.
(c)     any other material the applicant intends to rely upon at the hearing.
This can include letters, emails, file notes, photographs or any other thing relevant to this complaint that the applicant wants to rely on to support his application. The applicant should provide a covering index of this material so it is clear what each document is.
(d)     a document setting out what orders the Tribunal should make.
Section 53E of the Human Rights Commission Act 2005 sets out the orders that the tribunal can make. If a monetary order is sought, the document must set out the total amount sought by way of compensation, and itemise each component of that amount.
On 16 July 2024, Mr Elbashir sent an email to the tribunal attaching a letter to the tribunal, in an apparent attempt to comply with the tribunal’s directions. The letter challenged the veracity of some things said by Mr Elbashir’s managers (such as that he failed to do his shift and that a staff member was on leave).
Mr Elbashir alleged in the letter to the tribunal that a manager had called him “rude”, which he said was unfair, and that he had been required to do a cleaning job three times, which he found humiliating. Mr Elbashir claimed that he had asked his manager why he was required to do the cleaning job, mentioning that he had a bachelor’s degree in sociology and psychology which he obtained nearly 30 years ago. Mr Elbashir stated that his manager replied: “Your bachelor’s degree in your country, not here in Australia.”
Mr Elbashir also provided some images of screenshots from his mobile phone.
Mr Elbashir claimed $3,000,000 in compensation.

Summary dismissal application

On 2 August 2024, Focus ACT applied for summary dismissal of Mr Elbashir’s application. In its application, Focus ACT made the following submission:
1.    The respondent submits the applicant’s application is frivolous or vexatious; lacking in substance; and is otherwise an abuse of process, and ought properly be dismissed. In particular:
a. The applicant’s complaint does not articulate any contravention of the Discrimination Act 1991 (ACT);
b.     The applicant’s complaint articulates no arguable basis on which the Tribunal could conclude that he was treated unfavourably, let alone was treated unfavourably because of his race;
c.     The applicant’s complaint articulates no arguable basis upon which the Tribunal could conclude that he was vilified, let alone vilified on the ground of race;
d.     The applicant’s complaint articulates no basis for his claimed damages / compensation of $3,000,000.
On the same day, the Tribunal vacated orders requiring the respondent to file and serve evidence, and vacated the hearing date, pending determination of the respondent’s summary dismissal application. It made orders requiring the parties to make submissions of no more than four pages in relation to the summary dismissal application.
On 13 August 2024, Focus ACT provided the Tribunal with submissions in support of the summary dismissal application and (without leave to do so) an affidavit of Kenneth Edkins Wedgwood, the Chief Executive Officer of Focus ACT. In that affidavit, Mr Wedgwood provided some evidence about Mr Elbashir’s role as a family engagement support worker, the terms of his contract and his position description. Mr Wedgwood also provided some evidence in response to Mr Elbashir’s complaints.
On 16 August 2024, Mr Elbashir wrote a letter to the tribunal in which he stated that he believed he “had been subjected to deliberate unfair treatment and misuse of power leading to discrimination within the workplace” and that he wished to present evidence in support. He referred to an incident on 28 December 2022 when he was required to travel 26 kilometres to clean, without being paid for this. He provided a screenshot of a message from Focus ACT instructing him to transport a child to a birthday party, then drive to another address and “please tidy the space (take bins out, tidy rooms, put any toys away etc)” before returning to the party to transport the child.
Mr Elbashir also referred, in this letter, to the response of management of Focus ACT and an alleged threat to terminate his employment when he raised concerns about being required to undertake cleaning tasks. Mr Elbashir claimed that a manager “penalized” him for complaining by adding cleaning duties to his responsibilities indefinitely. As a result, he said, he was forced to resign.
On 26 August 2024, Focus ACT filed a supplementary affidavit of Kenneth Edkins Wedgwood. In this affidavit, Mr Wedgwood provided evidence responsive to Mr Elbashir’s claims about the incident of 28 December 2022 and requirements after that that he undertake cleaning duties.

Relevant legislation

Subsection 7(1) of the Discrimination Act 1991 (Discrimination Act) provides that the Act applies to discrimination on the ground of a range of attributes, described as protected attributes, including physical features and race.
Subsection 10(2) of the Discrimination Act provides:
(2) It is unlawful for an employer to discriminate against an employee—
(a)in the terms or conditions of employment that the employer affords the employee; or
(b)by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training or to any other benefit associated with employment; or
(c)by dismissing the employee; or
(d)by subjecting the employee to any other detriment.
Subsections 8(1) to (3) of the Discrimination Act provide:
8 Meaning of discrimination
(1)     For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.
(2)     For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.
(3)     For this section, a person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes.
Section 53CA of the HRCA applies to direct and indirect discrimination complaints. Section 53CA(2)(b)(i) provides that it is a rebuttable presumption that discrimination has occurred for a complaint about direct discrimination if, among other things, the complainant presents evidence that would enable the Tribunal to decide, in the absence of any other explanation, that the treatment or proposed treatment is because of a protected attribute of the complainant.
Subsection 67A(1)(d) of the Discrimination Act provides that it is unlawful for a person to incite hatred toward, revulsion of, serious contempt for, or severe ridicule of a person or group of people on the ground of race, other than in private.
Section 32 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) gives the tribunal the power to summarily dismiss an application in certain circumstances. It relevantly provides:
32 Dismissing or striking out applications
(1)     This section applies if the tribunal considers that an application, or part of an application is––
(a)   frivolous or vexatious; or
(b)   lacking in substance; or
(c)    otherwise an abuse of process; or
(d)   made by a person who has been dealt with by a court or tribunal in Australia as frivolous or vexatious.
(2)     The tribunal may, by order, do 1 or more of the following:
…
(b)dismiss the application or part of the application; …

Principles concerning summary dismissal

The principles concerning the circumstances in which the tribunal may dismiss an application under section 32 of the ACAT Act are well established. The tribunal should not lightly strike out any application.[1] The onus lies on the respondent to satisfy the Tribunal that the complainant’s case is so lacking in substance that it should not be allowed to proceed, or that there is another reason justifying summary dismissal.[2] The party seeking summary dismissal faces a “very high threshold.”[3] In Farah v Sandilands [2021] ACAT 92 at [102], after reviewing the relevant authorities, the Tribunal said:
… the Tribunal’s task in determining the interlocutory application [for summary dismissal] is to assess whether there is no real question to be tried in the sense that the claim is bound to fail taking into the material provided by both parties at this stage of the proceedings on the assumption that every fact ‘pleaded’ by the applicant is true.
[1] Errington v ACT Planning and Land Authority [2019] ACAT 47 at [14]
[2] Andreopoulos v University of Canberra [2020] ACAT 95 at [93]
[3] Financial Integrity Group Pty Limited v Scott Farmer [2009] ACTSC 143 at 12, cited in Farah v Sandilands (Discrimination) [2021] ACAT 92 at [95] and [96]
The tribunal should exercise “exceptional caution” when considering whether to summarily dismiss an application.[4]

Hearing of the summary dismissal application

[4] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69, cited in Farah v Sandilands (Discrimination) [2021] ACAT 92 at [95]

A hearing of the respondent’s summary dismissal application was held on 26 August 2024. Mr O’Neill SC appeared for the respondent and Mr Elbashir appeared in person. Mr Elbashir informed the Tribunal that his first language was not English and this was apparent to the Tribunal when listening to him.
Mr O’Neill submitted that, while it was unclear whether Mr Elbashir was making a vilification claim, there was no incident of incitement identified in the material he had submitted. Mr O’Neill relied upon Clinch v Rep (No. 2) [2020] ACAT 68 at [38], in which the Tribunal described the meaning of “incite” as being “to rouse, to stimulate, to urge, to spur on, to stir up or to animate” and to cover “conduct involving commands, requests, proposals, actions or encouragement”. He said that Mr Elbashir had not identified any conduct of that kind.
As for Mr Elbashir’s discrimination claim, Mr O’Neill submitted that Mr Elbashir had not identified anything constituting unfavourable treatment. Mr O’Neill identified the respondent’s strongest point as being that there was no evidence that the respondent’s treatment of Mr Elbashir was because of a protected attribute (in this case, race). Nor was there any allegation of fact demonstrating that the reason for his treatment was his race.
Mr Elbashir made oral submissions in response. He referred to the tribunal’s power to obtain footage from a surveillance camera which he said would demonstrate that he was treated unfavourably on the grounds of his race. Mr Elbashir said, in relation to his allegation that the respondent required him to do cleaning at a client’s premises, that there was a white support worker present who could have done the cleaning instead of him. There was no reason, he said, why he was required to travel 40 kilometres to do the cleaning.
Mr Elbashir said that the screenshots of mobile phone messages which he had provided to the Tribunal were just samples and that he had hundreds which would prove his allegations. He said that a manager had threatened him, telling him that she would put him as a cleaner forever.
Mr Elbashir referred to his degrees in sociology and psychology and said that cleaning was not one of duties as a family engagement support worker.

Consideration

It is plain from the materials which Mr Elbashir provided to the Tribunal that he had difficulty understanding how to present his discrimination case effectively. This is not unusual for self-represented litigants. As the Tribunal observed in McGhie v Aboriginal Legal Service (NSW/ACT) Limited [2023] ACAT 27 at [97]:
The Discrimination Act is a technical, prescriptive Act, that offers a form of protection to people on prescribed grounds, in prescribed circumstances, subject to certain defences. Because it is so technical, making out a case under the Act can be very challenging for many self-represented litigants, and indeed many lawyers.
Notwithstanding the Tribunal’s directions of 26 June 2024, Mr Elbashir did not provide any witness statements, identify what his protected attribute is and only provided a small selection of screenshots from his mobile telephone when he plainly considered that others were relevant. It is difficult to understand, from Mr Elbashir’s letter to the tribunal which he provided as his evidence and submissions, whether he is claiming that he was vilified and exactly what form of discrimination he is claiming.
Mr Elbashir appeared to conceive of the tribunal proceedings as an ongoing opportunity to obtain evidence, and appeared to expect that the tribunal might obtain evidence of its own motion, such as surveillance footage. In his letter to the Tribunal, he stated “[t]he surveillance cameras at Wanniassa childcare, Uniting care MacGregor and Uniting care Barry drive will confirm that [the manager] wants to put her faults on me as usual, and described me as rude!” He did not seem to understand that the direction of 26 June 2024 required him to provide to the tribunal all of the material on which he intended to rely at the hearing. He also appeared not to understand that the tribunal’s role is not to obtain evidence on his behalf.
Whilst Mr Elbashir alleged that doing cleaning was not part of his role, he did not provide any evidence of what his role entailed. Nor did he provide any evidence of what other people in a similar role who were not of his race or skin colour were required to do and whether they were also required to clean.
The directions made on 26 June 2024 required parties to lodge any subpoenas for documents or other things by 17 July 2024. Mr Elbashir did not lodge any subpoenas by that date.
Vilification claim
In Mr Elbashir’s complaint to the Human Rights Commission, he stated that he was complaining because he had been vilified because of his race. There is, however, nothing in his description of what happened to him in that complaint which indicates that any person vilified him within section 67A of the Discrimination Act. Nor is there anything in the material he has provided to the Tribunal to suggest that he is alleging that any person incited “hatred toward, revulsion of, serious contempt for, or severe ridicule of” him on the ground of race, within section 67A(1).
I accept the submission of Focus ACT that there is no real question to be tried in terms of the vilification claim, if it is being pursued. Taking into account the material provided by Mr Elbashir on the assumption that every fact ‘pleaded’ (or asserted) by him is true, the vilification claim is bound to fail. Accordingly, to the extent that Mr Elbashir is advancing a claim of vilification under section 67A of the Discrimination Act, that claim is dismissed.
Discrimination claim

Mr Elbashir has not expressly articulated whether his discrimination claim is one of direct or indirect discrimination. He has, however, made no allegation that Focus ACT has imposed upon him a condition or requirement that has, or is likely to have, the effect of disadvantaging him because of his race or skin colour (see Discrimination Act, section 8(3)). His case is, in substance, that Focus ACT treated him unfavourably because of his race or skin colour. In other words, he is claiming direct discrimination within the meaning of section 8(2) of the Discrimination Act.
Mr Elbashir has not identified the provision upon which he relies for his allegation of unlawful discrimination in employment. His claim is capable of falling within section 10(2)(c) of the Discrimination Act (“It is unlawful for an employer to discriminate against an employee … by dismissing the employee”) in circumstances where he says that he was forced to resign. It is also capable of falling within section 10(2)(d) (“It is unlawful for an employer to discriminate against an employee … by subjecting the employee to any other detriment”).
Section 53CA(2) of the HRCA relevantly provides:
(2) It is a rebuttable presumption that discrimination has occurred if the complainant—
(a) establishes that—
(i) for a complaint about direct discrimination—the treatment or proposed treatment is unfavourable; and
…
(b) presents evidence that would enable the ACAT to decide, in the absence of any other explanation—
(i) for a complaint about direct discrimination—that the treatment or proposed treatment is because of a protected attribute of the other person; …
I am satisfied that Mr Elbashir has identified conduct capable of amounting to unfavourable treatment within section 8(2) of the Discrimination Act, being the requirement that he undertake cleaning duties and the cancellation of his shifts.
The main issue, as the respondent identified, is whether there any allegation of fact and whether Mr Elbashir has presented evidence that would enable the Tribunal to decide, in the absence of any other explanation, that the alleged unfavourable treatment of Mr Elbashir was because of a protected attribute (his skin colour or race).[5]
[5] See Discrimination Act s 8(2)
The evidence Mr Elbashir has presented in this regard is very limited. As is not uncommon with self-represented litigants, the materials Mr Elbashir provided to the tribunal did not clearly distinguish between evidence and submissions but combined both in one document. The only allegation made by Mr Elbashir in writing which comes close to identifying explicitly racist behaviour on the part of an employee of Focus ACT is in the following alleged exchange:
[Mr Elbashir]: … why you sent me to do the cleaning job and there’s another support worker at FE, you know I have bachelor degree in sociology and psychology nearly thirty years ago?
[Mr Elbashir’s manager] said: your bachelor degree in your country, not here in Australia.
I said: I’m Australian citizen and all my kids were born here.
She said: I will put the cleaning job in your roster up to the end of the year for free.
The alleged comment by Mr Elbashir’s manager about his degree having been obtained overseas (if it was made) may be capable of supporting an inference that the manager was treating Mr Elbashir unfavourably because did not have an Australian university degree. The alleged statement by the manager that she would require Mr Elbashir to do cleaning, without paying him for it, in direct response to Mr Elbashir’s assertion of being an Australian citizen and following closely on her comment that his degree was obtained in his home country, may support an inference, if coupled with other evidence, that the manager was treating Mr Elbashir unfavourably because of his race. However, that exchange alone is not sufficient, in my view, to establish that.
After applying for summary dismissal of Mr Elbashir’s application, Focus ACT filed an affidavit, without leave, on 13 August 2024. This prompted Mr Elbashir to provide to the tribunal what he described as “substantial evidence” in support of his discrimination claim on 16 August 2024. Mr Elbashir’s further evidence then prompted the supplementary affidavit of Mr Wedgwood on 26 August 2024. Neither party objected to the other’s evidence at the summary dismissal hearing.
It is not plain why Focus ACT filed evidence in circumstances where it had not been directed to do so and where it was seeking summary dismissal of Mr Elbashir’s claim. In such an application, the applicant’s case is to be taken at its highest, accepting (in effect) any of the factual assertions made by the applicant.[6] Any evidence relied upon by a respondent “should be confined to that which shows that the complaint is either frivolous or vexatious … or that which shows that the complaint is so lacking in substance that it ought to be summarily terminated.”[7] Focus ACT’s evidence went further than that.
[6] Sirohi v Director-General, Justice and Community Safety Directorate [2019] ACAT 84 at [49]
[7] State Electricity Commission v Rabel [1996] VSC 78 at [13], cited in Sirohi v Director-General, Justice and Community Safety Directorate [2019] ACAT 84 at [49]
In its written submissions, Focus ACT relied, in support of its submission that Mr Elbashir’s application was lacking in substance, upon the Tribunal’s observations in Sirohi v Director-General, Justice and Community Safety Directorate [2019] ACAT 84. In that case, at [50], the Tribunal referred to authority to the effect that the approach to be taken in determining whether or not an application is lacking in substance is to determine whether “an application which, after an applicant’s evidence has been considered, contains nothing of substance for a respondent to answer.”
In these circumstances, the act of Focus ACT in filing evidence is capable of suggesting that the applicant’s evidence did contain something of substance to answer, particularly where part of Mr Wedgwood’s affidavit was headed “Response to complaints.” Similarly, the filing of responsive evidence to the material filed by Mr Elbashir on 16 August 2024 was capable of suggesting that that material also contained something of substance for the respondent to answer.
Mr Elbashir’s evidence filed on 16 August 2024 provides more detail about the allegation made in his earlier material that he was required to drive many kilometres to perform a cleaning job which was not part of his duties, which were limited “to family engagement and transport.” He alleged in that document that this and other incidents “reflect a broader pattern of discriminatory behaviour within the organisation.” Mr Elbashir did not state expressly in that document that the manager’s treatment of him was because of his race and he did not point to any additional evidence from which a racial motivation could be inferred.
Focus ACT sought to meet Mr Elbashir’s additional evidence by Mr Wedgwood’s evidence as to how many of his shifts were cancelled, and Mr Wedgwood’s evidence that it is not unusual for a family engagement support worker to be asked to tidy up from time to time. Mr Wedgwood’s supplementary evidence is to the effect that other staff members were required to provide support through completing domestic tasks. That evidence is untested, and it is inappropriate to consider it for the purposes of Focus ACT’s summary dismissal application, given that the applicant’s evidence is to be taken at its highest.
At the hearing, Mr Elbashir stated, in relation to his allegation about the cleaning incident, that there was a white support worker “there” who could have cleaned but was not asked to do so. That is an allegation which is not contained in his written material and it was unclear from Mr Elbashir’s comments where the white support worker was at the time. In light of the circumstance that Mr Elbashir is self-represented, the Tribunal is prepared to treat Mr Elbashir’s statements at the hearing about the availability of a person of another race to do the cleaning as being in the nature of evidence.
The question of whether Mr Elbashir’s discrimination claim is lacking in substance is finely balanced.
In Assal v Department of Health, Housing and Community Services [1990] HREOCA 8 (Assal), Sir Ronald Wilson commented, of the phrase “lacking in substance” in the Racial Discrimination Act 1975 (Cth), that a “claim which presents no more than a remote possibility of merit or which does no more than hint at a just claim would ordinarily, I think, be found to be lacking in substance.” Sir Ronald also observed in that case that:
It may sometimes be sufficient, once the complainant has had every opportunity to identify the subject matter of the complaint and produce all available evidence in support, simply to ask the question whether there is anything of substance which requires an answer from the respondent.
Sir Ronald’s comments in Assal have been cited by approval by this Tribunal[8] and other tribunals[9] and by the Federal Court.[10]
[8] Sirohi v Director-General, Justice and Community Safety Directorate (Discrimination) [2019] ACAT 84 at [50]
[9] Liu v University of Melbourne [2002] VCAT 896 at [14]; Phillips v RSPCA Victoria [2018] VCAT 2028 at [11]-[12]
[10] Orfali v Australian Information Commissioner [2016] FCA 1386 at [37]-[38]
On balance, and exercising exceptional caution,[11] I consider that Mr Elbashir’s claim presents only a remote possibility of merit. Fairly understood, Mr Elbashir’s material advances a claim that he was treated unfavourably on the basis of his race or skin colour, including by being required to perform cleaning duties where a white person was more readily available to perform that work. However, as Mr O’Neill submitted orally, there is no allegation of fact demonstrating that the reasons for Focus ACT’s allegedly unfavourable treatment of Mr Elbashir is his race.
[11] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69, cited in Farah v Sandilands (Discrimination) [2021] ACAT 92 at [95]
The evidence, such as it is about a white support worker being available, is very imprecise. Mr Elbashir has not identified the worker nor identified where the worker was at the relevant time. He has provided very few details as to the circumstances in which he was asked to do the cleaning work, such that it is impossible to infer that he was asked to do it because of his race. The circumstances appearing in the evidence do not give rise to a reasonable and definite inference that he was asked to clean because of his race, but rather do no “more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture.”[12] The same may be said in relation to the cancellation of his shifts.
[12] Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 at 358 per Dixon, Fullagar and Kitto JJ
I gave Mr Elbashir an opportunity at the hearing of the summary dismissal application to identify the factual basis for his claim that the unfavourable treatment which he claimed to have been subjected to was because of his race. He was unable to do so.
It would not be open to the Tribunal to decide, on the material provided by Mr Elbashir to date, including the factual allegations made at the hearing of the respondent’s summary dismissal application, in the absence of any other explanation, that the treatment of him by Focus ACT was because of his race. He has provided very little information about what family engagement and transport support workers who were not of his skin colour or race were required to do. Even taking his evidence at its highest, there is insufficient evidence from which I could conclude that a reason he was asked to do cleaning tasks, or that a reason why his shifts were cancelled, was his race or skin colour.
For these reasons, I am satisfied that Mr Elbashir’s application is lacking in substance.
It remains to consider whether I should dismiss Mr Elbashir’s discrimination complaint under section 32 of the ACAT Act, or take some other course, such as giving him an opportunity to provide further evidence in support of his claim.

Discretionary considerations

Where an applicant is self-represented, the tribunal must seek to ensure the proper administration of justice in a manner which is procedurally fair to both the self-represented party and the party opposing the relief sought.[13] As Flick J has observed in the context of an application to summarily dismiss discrimination proceedings:
An unrepresented applicant may not be competent to properly articulate a claim for relief and a respondent should not be put in the position of seeking to resist a claim for relief that cannot properly be understood.[14]
[13] Reurich v Shoalhaven Heads Bowling and Recreation Club Ltd [2020] FCA 427 at [31]
[14] [2020] FCA 427 at [33]
In tribunal proceedings, there are generally no pleadings and self-represented litigants often provide evidence orally at hearing which may supplement evidence they have provided in writing. In Pikula-Carroll v ACT Corrective Services [2023] ACAT 33 at [31]-[32] (Pikula-Carroll), the Tribunal called for the exercise of caution when making summary dismissal applications in discrimination proceedings where an applicant is self-represented. It pointed out that relevant evidence may be given at the hearing and:
… it is not uncommon for a complainant’s case to change at the hearing as new evidence emerges and its significance is appreciated, often for the first time, as a result of questioning by the tribunal. Provided a respondent is afforded procedural fairness in dealing with the new material, there is nothing surprising, unusual or unfair about this, particularly where the complainant is self-represented and the respondent has legal representation, as is typically the case.
Mr Elbashir is self-represented and the material he relies upon conflates matters of evidence and submission. It is likely that he would make new allegations orally at a final hearing, as he did at the hearing of the summary dismissal hearing. He may also provide additional oral evidence at a final hearing if given leave to do so. That is not necessarily desirable in Mr Elbashir’s case. His complaint is very poorly articulated and the written material he has provided in support is lacking in particularity. It may not be possible to provide the respondent with procedural fairness if Mr Elbashir provided more detailed evidence or allegations at the hearing, without adjourning and delaying the resolution of the proceedings. It may be necessary, for example, for the respondent to call a new witness to respond to allegations which had not been made before the hearing.
The Tribunal in Pikula-Carroll referred to the significant imbalance of power between the parties in discrimination proceedings where an applicant is self-represented and an institutional respondent is legally represented as a factor tending against summarily dismissing such proceedings. It observed:
To be confronted in those circumstances with an application for interim or other orders that asserts the complaint should be dismissed summarily because it is “frivolous or vexatious” or “lacking in substance” – concepts that are understood only by lawyers, and often not even by them – is likely to exacerbate feelings of bewilderment, disempowerment and alienation that many complainants may experience. [15]
(footnotes omitted)
[15] Pikula-Carroll at [37]
There is an imbalance between the parties in this case and the considerations articulated in Pikula-Carroll are relevant. Mr Elbashir is self-represented, his first language is not English and has a very rudimentary understanding of what he needs to do to prove his case, whereas the respondent is represented by senior counsel. It is important that the tribunal be accessible to self-represented litigants. However, it is also relevant to consider that a respondent should generally not be put to the expense, time and stress of having to defend a claim which is lacking in substance. Whilst the tribunal may give a self-represented litigant some latitude at a hearing when giving evidence, the respondent is entitled to know the case against it before the hearing commences so it can respond to that case effectively. Mr Elbashir’s allegations lack specificity and it is very difficult to understand the nature of his case from the material he has provided.
I have decided that summary dismissal of Mr Elbashir’s discrimination case is appropriate taking into account these matters and for the following additional reasons.
Mr Elbashir was effectively afforded a second opportunity to provide evidence when Focus ACT filed an affidavit and he responded to it. When Mr Elbashir filed his further material on 16 August 2024, he was aware of the respondent’s allegation, in the summary dismissal application, that his complaint did not articulate an arguable basis on which the Tribunal could conclude that he was treated unfavourably because of his race. Notwithstanding this, his evidence did not contain factual allegations which would enable the Tribunal to conclude that he had been treated unfavourably because of his race.
Mr Elbashir had a third opportunity to articulate the basis of his case orally at the hearing and did not identify a factual basis upon which the Tribunal could conclude that he was treated unfavourably because of his race or skin colour.
The tribunal is to ensure that its procedures “are as simple, quick, inexpensive and informal as is consistent with achieving justice.”[16] That obligation generally favours summary dismissal of an application which is lacking in substance, unless a different course is needed to achieve justice. In light of the multiple opportunities Mr Elbashir has had to identify his case and provide evidence to the Tribunal, I do not consider that providing him with another opportunity to file evidence would be consistent with achieving justice.
[16] ACAT Act s 7(a)(i)
For these reasons, I have decided to grant the respondent’s application to dismiss Mr Elbashir’s application.
………………………………..

Presidential Member J Lucy

Date of hearing:	26 August 2024
Applicant:	In person
Counsel for the Respondent:		Mr RW O’Neill SC
Solicitors for the Respondent:		Newman & Associates Lawyers