Moavenian v Transport for NSW

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Moavenian v Transport for NSW [2021] NSWCATAD 77

Hearing dates:

10 March 2021

Date of orders:

26 March 2021

Decision date:

26 March 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Ludlow, Senior Member

Decision:

Leave for the complaints to proceed under s 96(1) of the Anti-Discrimination Act 1977 is refused.

Catchwords:

HUMAN RIGHTS — equal opportunity — whether leave required for complaint to proceed — principles applying to grant of leave

HUMAN RIGHTS – equal opportunity — discrimination on ground of race – qualifying bodies – victimisation

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Driving Instructors Act 1992 (NSW)

Cases Cited:

Carroll v Department of Family and Community Services [2015] NSWCATAD 82

Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143

Elliott v Nanda & Commonwealth [2001] FCA 418

Texts Cited:

Macquarie Dictionary

Category:

Principal judgment

Parties:

Hossein Moavenian (Applicant)
Transport for NSW (First Respondent)
Commissioner of Police (Second Respondent)
Andrew Cotton (Third Respondent)

Representation:

Counsel:
M Waters (Applicant)

Solicitors:
Illawarra Legal Centre (Applicant)
Crown Solicitor (First Respondent)
Kingston Reid (Second and Third Respondents)

File Number(s):

2020/00365381

Publication restriction:

None

REASONS FOR DECISION

Background

1. Mr Moavenian is of Iranian background. He applied for a driving instructor’s licence on 20 March 2019. Transport for NSW (Transport), the first respondent, referred the application to the Commissioner for Police for assessment as required by the Driving Instructors Act 1992. The assessment was carried out by Senior Constable Cotton, the third respondent. The second respondent provided a report indicating that his application was opposed. Notwithstanding this, the first respondent granted the licence on 6 June 2019.

2. Mr Moavenian complained to the Anti-Discrimination Board that Transport for NSW discriminated against him on the ground of race, as a qualifying body, by delaying or failing to grant him a licence because of the report of the Commissioner of Police which was allegedly affected by race discrimination under the Anti-Discrimination Act 1977(ADA).

3. He alleged that the Commissioner of Police and Senior Constable Cotton aided Transport in discriminating against him by producing and submitting their report and unlawfully victimised him by producing a negative report because he had previously complained to the Australian Human Rights Commission (AHRC) against the Commissioner of Police with regard to an earlier application.

4. The President of the Anti-Discrimination Board declined his complaint on the ground that it was lacking in substance.

5. The applicant has applied to this Tribunal for leave to proceed with his complaint under s 96 of the ADA.

Relevant legislation

Leave to proceed with complaint

6. Section 92 of the ADA provides:

“92 President may decline complaint during investigation

1. If at any stage of the President’s investigation of a complaint—

   (a)   the President is satisfied that—

   (i)   the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or

   (ii)   the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision…