Rahman v Dayeh and Ors (No.2) - [2007] FMCA 234

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RAHMAN v DAYEH & ORS (No.2)

[2007] FMCA 234

ADMINISTRATIVE LAW – Appointment to public service position – assessment of Departmental selection panel – not appointed under regulations – no ground of judicial review established – application dismissed.

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.5, 5(1), 5(2)
Federal Court Rules (Cth), O.54, 62
Federal Magistrates Court Rules 2001 (Cth), r.21.02(2)(c)
Public Service Act 1999 (Cth), s.22
Public Service Regulations 1999 (Cth), Pt.4, 4.2(1)

Rahman v Dayeh & Ors [2007] FMCA 98

Applicant:

MOHAMMAD TABIBAR RAHMAN

First Respondent:

VANESSA DAYEH

Second Respondent:

RICARDO ABUSAIL

Third Respondent:

COMMONWEALTH OF AUSTRALIA

Fourth Respondent:

SECRETARY, DEPARTMENT OF IMMIGRATION & CITIZENSHIP

File Number:

SYG2994 of 2006

Judgment of:

Smith FM

Hearing date:

22 February 2007

Delivered at:

Sydney

Delivered on:

22 February 2007

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondents:

Mr A Markus

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The name of the fourth respondent be amended to read “Secretary, Department of Immigration and Citizenship”.
The application is dismissed.
The applicant must pay the first respondent’s costs as agreed or taxed in accordance with Federal Court Rules O.62. Pursuant to r.21.02(2)(c), refer those costs for taxation under O.62.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2994 of 2006

MOHAMMAD TABIBAR RAHMAN

Applicant

And

VANESSA DAYEH

First Respondent

RICARDO ABUSAIL

Second Respondent

COMMONWEALTH OF AUSTRALIA

Third Respondent

SECRETARY, DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Fourth Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 23 August 2006 in the Federal Court of Australia under O.54 of the Federal Court Rules (Cth), seeking orders under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the AD(JR) Act”) in relation to a decision identified as “Decision report by DIMA 16 August 2006”.
The document recording the alleged decision is attached to an affidavit of the applicant. It is headed “Individual Assessment Report” concerning an application made by the applicant for advertised employment vacancies in the Department of Immigration, referred to as “APS 4 Various Positions”. The report contains the assessments of a selection panel which addressed the applicant’s written application for employment, the references he provided, and his performance on interview.
It appears from the application to the Court that the applicant’s concerns relate to the panel’s opinions expressed under the heading “Comments”:
Comments: At interview, Mohammad was unable to demonstrate a match of skills, abilities and experience related [to] any of the Selection Criteria for the position.
Mohammad was unable to identify the issues being canvassed in the interview questions and, therefore, was unable to satisfactorily address any of the interview questions. Mohammad spoke extremely rapidly and in many broken and inconclusive sentences with a plethora of unrelated ideas and thoughts. There was no logical presentation of his many ideas at interview.
His written exercise was completed to a satisfactory standard, demonstrating a good level of written communication skills and an ability to interpret and apply legislation.
His Referee, Paul Gavin, Deputy Principal, Sarah Redfern High School, rated him as suitable for appointment as an APS 4 officer and concluded the report by stating, “Mr Rahman [has] many fine skills and personal attributes that are either natural to him or he has developed through a vast range of experiences through his life. He is passionate about helping and supporting persons who do not have the full privileges of life. He is a caring and compassionate man with much knowledge and intellect.”
Based on his interview performance, written application and Referee Report, the Panel formed the opinion that Mohammad is unsuitable for engagement to the position of APS 4 at this point in time.
Conclusion: Having considered Mohammad’s claims against the generic APS 4 criteria, the Panel formed the view that he is not suitable for duty at the APS 4 level.
The evidence explaining the background to the interview report is conveniently summarised in a written submission presented by counsel for the respondents, which has been served on the applicant:
3.On 2 March 2006, several Australian Public Service (APS) Level 4 classification positions were advertised by the Department of the fourth respondent Secretary (“the Secretary”), now titled Department of Immigration and Citizenship (“the Department”). These positions were advertised (including in the Public Service Gazette) as ongoing vacancies with position number (PN) 2507 (several) as reference (“the advertised positions”).
4.On or around 25 March 2006, the applicant submitted an application in respect of the advertised positions. The application was supported by a curriculum vitae: see annexures “A” and “B” to the applicant’s affidavit sworn 5 September 2006 (“the applicant’s affidavit”).
5.The applicant’s written application was subject to an initial assessment by a selection advisory committee, established for the purposes of assisting with the selection process for the advertised positions. This process involved consideration of the application form and resume, and a rating against each selection criteria by reference to a standard “Rating Scale” used by the Department: see annexures “AA” and “BB” to the affidavit of A Markus affirmed 21 December 2006 (“the respondents’ affidavit”).
6.On 5 May 2006, Ms Vanessa Dayeh, the Chairperson of the selection advisory committee in respect of the advertised positions (and who is named as the first respondent to this application) forwarded an e‑mail to the applicant:
-informing him that he had been short‑listed for an oral interview,
-providing him with various details regarding that interview; and
-requesting him to arrange for a written referee’s report, to be submitted at the time of interview.
7.The applicant attended an oral interview on 17 May 2006, and submitted a written referee report from Mr Paul Gavin, Deputy Principal of Sarah Redfern High School, dated 12 May 2006: see annexure “D” to the applicant’s affidavit.
8.At the completion of the interview process, the selection advisory committee prepared an individual assessment report in relation to the applicant: see the second page of annexure “E” to the applicant’s affidavit.
9.On 21 July 2006, the selection advisory committee provided the delegate of the Secretary (“the delegate”) with its selection report in relation to the advertised positions, including its recommendations for appointment to the advertised positions. On the same day, the delegate approved the selection process, order of merit and placements, and decided that offers of employment may be made to the applicants in accordance with the recommendations of the selection advisory committee: see annexure “EE” to the respondents’ affidavit.
10.On 24 July 2006, the applicant was informed by the NSW Human Resource Management section of the Department that his application for the advertised positions was unsuccessful: see annexure “FF” to the respondents’ affidavit.
11.On 27 July 2006, the Department forwarded to the applicant a copy of his individual assessment form: see annexure “GG” to the respondents’ affidavit.
12.On 14 August 2006, the applicant forwarded a facsimile to the Department, to which the Department responded on 16 August 2006: see annexure “HH” to the respondents’ affidavit and annexure “E” to the applicant’s affidavit, respectively.
13.The present application was filed on 23 August 2006. As noted above, the decision of which judicial review is sought is identified in the application as: “Decision report by DIMA 16 August 2006”. As filed, the application named the first and second respondents only as respondents. Following the order transferring the matter to the Federal Magistrates Court, the Commonwealth and the Secretary were also joined as respondents.
The application for an order of review contains criticisms of the opinions and qualifications of the two members of the selection panel. However, it does not give particulars of any ground of legal error in relation to their activities, other than a suggestion that they had not been appointed as an Independent Selection Advisory Committee (“ISAC”) under Pt.4 of the Public Service Regulations 1999 (Cth) (“the Public Service Regulations”). The stated grounds of the application otherwise contain general allegations of abuse of power, breach of rules of natural justice, failure to follow procedures and other general allegations framed in terms of s.5(1) and (2) of the AD(JR) Act without any particulars. The documents attached to the applicant’s affidavit do not in my opinion provide any substance to these general allegations.
In relation to the complaint that the selection panel was not properly appointed pursuant to Pt.4 of the Public Service Regulations, I accept the submission of counsel for the respondents that those regulations had no application to the present circumstances. As reg.4.2(1) indicates: “the Merit Protection Commissioner may establish an ISAC at the request of an Agency Head”, but it is apparent that that power only arises if a request has been received. Absent the use of an ISAC appointed by the Merit Protection Commissioner, the Agency Head, in this case the Secretary of the Department, had unqualified authority under s.22 of the Public Service Act 1999 (Cth) to: “engage persons as employees for the purposes of the Agency”, and implicitly to set up whatever procedures were appropriate to assist that process.
I accept the submission of counsel for the respondents that, on the evidence before me, the Agency Head has proceeded according to procedures which are not set out in legislation to assess applicants for the advertised positions, and has established a Departmental interview and selection panel for that purpose. I am not satisfied that there was any legal defect in relation to the appointment of the selection panel, or in the procedures followed by the panel. I therefore consider that the application has no merit and should be dismissed.
The procedural history of the matter which has led to my giving judgment in the above terms, should be also recorded.
In a previous judgment published as Rahman v Dayeh & Ors [2007] FMCA 98 I referred to the procedural history before and after the matter reached my docket. As I indicated, a directions hearing was held on 10 November 2006, at which directions were given which included provision for the parties to present their evidence in affidavits, gave an opportunity to the applicant to show the Court on 25 January 2007 that processes of subpoena or discovery would appropriately be invoked in the proceeding, and set the matter down for a final hearing today. The applicant appeared and participated in that directions hearing. He did not object to the fixing of the hearing date today.
However, on the date appointed for consideration of the issuing of subpoenas, he brought a motion for my disqualification based upon his dissatisfaction with my directions in relation to subpoenas. As I explained in my previous judgment, I refused to disqualify myself and maintained the correctness and appropriateness of my procedural directions. I confirmed orally to Mr Rahman on that day, and again in my judgment which was sent to him, that the matter would remain listed for final hearing today.
Today, the respondents appeared through their counsel, prepared for a final hearing. They had previously filed and served written submissions in accordance with my directions. They also presented documents elucidating what had happened in relation to Mr Rahman’s job application. They opposed any adjournment.
The applicant appeared today, unrepresented. He first addressed me on an application for the transfer of the proceedings from this Court back to the Federal Court. Essentially his argument was that the interests of the administration of justice required the transfer of the matter from this Court by reason of his dissatisfaction with my previous directions and judgment. I heard his extensive submissions in support of that application. It was opposed by the respondents. For reasons which may be found on the transcript, I refused the transfer application. I could see no justification for transferring the proceeding back to the Federal Court.
I then gave the applicant an opportunity to apply for an adjournment of the hearing, and in particular I invited him to present to the Court draft subpoenas or to indicate a reason why he was not able to proceed today. He declined the invitation to apply for leave to issue subpoenas. He indicated that he did not wish to proceed with the hearing today because he maintained his lack of confidence in my constituting the Court for a final hearing. He did not attempt to persuade me that there was some procedure which he wished to follow to prepare for a hearing and which would justify an adjournment of the hearing.
Taking into account all of his submissions, I concluded that an adjournment was not justified. I considered that Mr Rahman had been fully alerted in November 2006 and again in January 2007 that his case was listed for hearing today, and should have been aware that it would proceed if I declined to disqualify myself. I considered that it was in the interests of justice that the matter should be brought to a final conclusion today. I therefore proceeded with the hearing.
I identified the affidavit evidence of each party which I read, and at that point Mr Rahman indicated that he declined to participate further in the hearing. He declined to present any submissions in support of his substantive application. He withdrew from the Court at the end of the hearing, at the time when I had commenced to deliver this judgment.
For the above reasons I consider that the application should be dismissed.
Counsel for the respondents seeks an order that the applicant pay the respondents’ costs taxed under the Federal Court Rules. The applicant was warned in a letter sent to him on 7 September 2006 that he would face an application for costs. In all the circumstances, I can see no reason why costs should not follow the event.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 2 March 2007