Patarroyo v Simmonds - [2023] QCAT 67

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Patarroyo v Simmonds [2023] QCAT 67

PARTIES:

raul mendez patarroyo

(applicant)

v

tegan simmonds

(respondent)

APPLICATION NO/S:

ADL047-20

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

6 February 2023

HEARING DATE:

26 August 2022

Closing submissions on 23 September 2022 and 24 October 2022

HEARD AT:

Brisbane

DECISION OF:

A/Senior Member Traves

ORDERS:

The complaint of Raul Mendez Patarroyo against Tegan Simmonds is dismissed.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – ACCOMMODATION – - where respondent landlord made comments to applicant tenant during tenancy - whether direct discrimination on the basis of race - whether discrimination in accommodation area by treating applicant unfavourably in any way in connection with the accommodation within the meaning of s 83(d) of the Anti Discrimination Act 1991 (Qld).

Anti Discrimination Act 1991 (Qld), s 6, s 8, s 10, s 83,

s 210

Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165

Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615

Woodforth v State of Queensland [2017] QCA 100

APPEARANCES & REPRESENTATION:

Applicant:

Self represented

Respondent:

Self represented

REASONS FOR DECISION

This is a complaint of direct discrimination by Mr Patarroyo against Ms Simmonds, who was his landlord at the relevant time. Mr Patarroyo contends that Ms Simmonds contravened s 83(d) of the Anti Discrimination Act 1991 (Qld) (ADA) by sending two emails to him which he says amounted to less favourable treatment on the basis of race. Mr Patarroyo is from Columbia, South America. He identifies as Latin American.
The emails upon which Mr Patarroyo bases his claim are as follows:
Email 1: Ms Simmonds to Mr Patarroyo on 19 November 2019
As mentioned in my email in early October, you are a fraud and a cheat (which is well established), this is what you people do, but in any case I am straightforward and I will inform all authorities and university about people like you – and I will report you to all agencies including and not limited to Immigration.
Email 2: Ms Simmonds to Mr Patarroyo on 22 November 2019
I have also contacted the Immigration Office and UQ International Students Services, as I know you talked about applying for PR and to extend, so I will follow up on all of this. I am keeping updated and will follow due process from all aspects.
Mr Patarroyo contends that the treatment (sending the emails) constituted direct discrimination against him on the basis of his race, which was prohibited by s 83, being unfavourable treatment in connection with the accommodation. Mr Patarroyo seeks $1000 in compensation (his original claim of $13 000 was abandoned in the hearing); an order instructing the respondent to withdraw any communications sent to the University of Queensland; Immigration Office; the Police Department of Queensland and UQ International Student Services; and an order that the respondent cease any further communication with him.
Ms Simmonds refutes the contention. She contends that the emails should be viewed in the context of a bitter tenancy dispute and, in particular after Mr Patarroyo had made a series of false allegations and threats after she had refused to end his rental contract early. Ms Simmonds says that the reference in email 1 to “you people” was not a reference to Mr Patarroyo’s race but to him being a tenant. Further, in relation to email 2, that she would have acted the same way towards any tenant who had behaved that way towards her, regardless of race. Ms Simmonds seeks an order from the Tribunal that Mr Patarroyo take down the ‘slanderous videos’ of her that he posted on YouTube and desist from posting anymore.
Overview of statutory framework
The ADA meets its objects by prohibiting discrimination on a ground in s 7, of a type in s 10 (direct discrimination) or s 11 (indirect discrimination), and in certain areas of activity, which include the work or work-related area.[1]
[1]Anti Discrimination Act 1991 (Qld), s 6(2)(a) (‘ADA’).
Section 7(g) prohibits discrimination on the basis of race.
Discrimination can be direct or indirect.[2]
[2]ADA, s 9.
Section 10 provides:
(1) "Direct discrimination"on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.
Example—
R refuses to rent a flat to C because—
• C is English and R doesn’t like English people
• C’s friend, B, is English and R doesn’t like English people
• R believes that English people are unreliable tenants.
In each case, R discriminates against C, whether or not R’s belief about C’s or B’s nationality, or the characteristics of people of that nationality, is correct.
(2) It is not necessary that the person who discriminates considers the treatment is less favourable.
(3) The person’s motive for discriminating is irrelevant.
Example—
R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R’s conduct amounts to discrimination against C.
(4) If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.
(5) In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.
Section 10 requires a comparison between the treatment of the complainant with that of an actual or hypothetical comparator who does not have the relevant attribute, including its characteristics. The comparison must be made in a hypothetical context of circumstances that are the same or not materially different from those in which the person with the attribute has been or will be treated.[3] The questions to be asked in determining whether there has been direct discrimination are therefore: whether there was less favourable treatment of the complainant when compared with the comparator in the same circumstances; and, if so, whether it was on the basis of the attribute?
[3]Woodforth v State of Queensland [2017] QCA 100 at [29] per McMurdo JA.
It is necessary to undertake an objective assessment of the respondent’s reasons for treating a complainant less favourably than others in the same or materially different circumstances. The Tribunal is not bound by the respondent’s characterisation of the reasons for his or her conduct but must undertake its own objective characterisation of those reasons.[4]
[4]Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 184 per Dawson J.
Section 83 provides:
A person must not discriminate against another person—
(a) in any variation of the terms on which accommodation is supplied; or
(b) in denying or limiting access to any benefit associated with the accommodation; or
(c) in evicting the other person from the accommodation; or
(d) by treating the other person unfavourably in any way in connection with the accommodation.
It is for the complainant to prove, on the balance of probabilities, that the respondent contravened the Act, subject to exemptions which are not relevant here.[5]
[5]ADA, s 204.
Consideration
I find the appropriate comparator to be a person not of Mr Patarroyo’s race, who was a tenant of Ms Simmonds, a University student, and who engaged in the same conduct and behaved the same way around the time the relevant emails were sent. The question is whether Mr Patarroyo, on the basis of his race, received less favourable treatment than the comparator would have done in circumstances that were the same or not materially different.
Email 1
It is important to consider the context in which the comment “people like you” in the email was made.[6] This includes the background to the email but also to the context of the statement within the email itself.
[6]Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615.
Ms Simmonds rents out a large house to several students. The students are invariably international students. Several past students gave evidence to the effect that they have always been welcomed by Ms Simmonds and that she would go out of her way to make them feel at home, at times hosting birthday dinners or get togethers for tenants and their friends. Ms Simmonds’ contact with Mr Patarroyo was similarly caring and friendly, until around October/November 2019 when their relationship became strained.
Ms Simmonds in emails to Mr Patarroyo in November 2019 refers to him wanting to break the lease (which he first raised on 6 October 2019 over WhatsApp) because it was week 13 in the University calendar and he did not want to pay rent during the holidays.
Ms Simmonds also refers to other students who were tenants of hers at that time in emails using similar terminology, for example, “folks like you”.
I accept Ms Simmonds’ evidence that sending an email to a tenant in response to behaviour she regards as inappropriate or unsatisfactory is how she would usually react. Accordingly, I do not find there was less favourable treatment by Ms Simmonds of Mr Patarroyo.
Further, for completeness, assuming the treatment was less favourable, I do not find the reason for the treatment to have been Mr Patarroyo’s race. Viewing the evidence as a whole, Mr Patarroyo, in my view, has not established to the requisite standard that Ms Simmonds was referring to people of his race when she said “people like you”. A reasonable construction of the email in context is that the reference to “fraud and cheats” followed by “people like you” was a reference to tenants who are students who, for unmeritorious reasons, try to break their lease, for example, to get out of paying rent over the holidays. It is unnecessary, therefore, to consider the contention based on the content of email 1 further.
Email 2
I turn to consider whether the threats Ms Simmonds made in the email dated 22 November 2019 to contact International Student Services and Immigration was less favourable treatment based on race.
Ms Simmonds in her Response states:
The cause of emails I sent were purely out of response to Mr Patarroyo’s false accusations of theft that he had threatened about repeatedly.[7]
[7]Response filed on 21 April 2021 at 5.
Ms Simmonds gave evidence that she made the threats because she had been threatened by Mr Patarroyo in a number of emails on 14 and 15 November 2019 where he described a number of expensive items he had in his room and said that she was responsible for all his belongings in the case of any loss. The items included two laptops, one Alexa device, one iPad, one Tag Heuer watch valued at $10 000 and one Rolex watch valued at $25 000. Mr Patarroyo followed this with an email in which he said that the police were coming to the house to ‘inspect’ and do a ‘verification of the room’. Later that same day Mr Patarroyo sent another email where he said:
I am willing to afford the most qualified lawyers in Brisbane and do an unprecedented tenant landlord trial in the history of Brisbane. Also, I undoubtedly claim a huge compensation for all the psicological (sic) and physical damages.
Ms Simmonds gave evidence that after receipt of that email she contacted the Indooroopilly Police Station and, through their helpline, was advised to report his conduct. She said she was advised by the police that it was considered fraud and a criminal offence to make up false claims, particularly where the value being claimed was over $30 000. Ms Simmonds gave evidence that her response to Mr Patarroyo would be the same way she would respond to anyone who made false claims, particularly where Mr Patarroyo had stated he had asked police to investigate theft of up to $USD30 000. Further, that she would take the ‘necessary steps’ in relation to anyone, regardless of race.
Mr Patarroyo in his closing submissions said that he considered it unlikely the police would have suggested she inform the University and Immigration “simply because the police service is not punitive or meant to impart justice”. Mr Patarroyo submitted that the realistic advice in a dangerous situation as described by Ms Simmonds would be to do a ‘physical inspection to confirm or document the hazard or instruct the person to go to QCAT and raise a civil matter’. Mr Patarroyo submitted that the email:
…was the cuspid (sic) of a spiral of rage and hate, which intention seems to infringe the maximum damage possible to an international student in a temporary Australian Visa condition.[8]
[8]Applicant’s closing submissions filed on 23 September 2022 at 16.
It is unclear whether the police specifically advised Ms Simmonds to report Mr Patarroyo’s conduct to International Services and Immigration or whether that was her idea. In any event, it is understandable that if a student is an international student that they would be agencies to which you might report conduct you considered to be unlawful.
On balance, I am not persuaded that Ms Simmonds threatened to report Mr Patarroyo’s conduct because of his race. I find that Ms Simmonds threatened to report the conduct because, in her view, the conduct was fraudulent and threatening. Further, I accept Ms Simmonds’ evidence that she would have made similar threats to report such conduct, irrespective of the race of the tenant.
It is not to the point, in my view, that the conduct would not have been reported to the same agencies. The issue is whether it would have been reported to the relevant agencies applicable in that student’s circumstances. Having decided to report the conduct, it was natural, given Mr Patarroyo was an international student for Ms Simmonds to have said, having already reported the conduct to the police, that she intended reporting the conduct to Immigration and International Student Services.
Accordingly, I find that Ms Simmonds did not engage in direct discrimination within the meaning of the ADA. I note the Tribunal lacks jurisdiction to make the orders sought by Ms Simmonds.
Conclusion
As prohibited discrimination has not been established, the appropriate order under s 210 of the ADA is to dismiss Mr Patarroyo’s complaint.