Razaghi v Director General, Department of Health & anor

[2005] NSWADT 202

CITATION:	Razaghi v Director General, Department of Health & Anor [2005] NSWADT 202
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Asaad Razaghi FIRST RESPONDENT Director General, Department of Health SECOND RESPONDENT: NSW Medical Board
FILE NUMBER:	991070
HEARING DATES:	26/07/2005
SUBMISSIONS CLOSED:	07/26/2005
DATE OF DECISION:	08/30/2005
BEFORE:	Hennessy N - Magistrate (Deputy President); Nemeth de Bikal L - Non Judicial Member; Mooney L - Non Judicial Member
APPLICATION:	Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Medical Practice Act 1992
CASES CITED:	Razaghi v Director General, Department of Health and NSW Medical Board [2005] NSWADT 125 Razaghi v Director General, New South Wales Department of Health & Anor [2003] NSWADTAP 42 Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4
REPRESENTATION:	APPLICANT In person FIRST RESPONDENT C Ronalds, Senior Counsel SECOND RESPONDENT G Furness, Counsel
ORDERS:	The applicant's complaints are dismissed as lacking in substance

Introduction

1 Dr Razaghi was born in Iran but left in 1978. He studied in Bangladesh and graduated with a Bachelor of Medicine from the University of Bangladesh in 1985. In the late 1980’s Dr Razaghi migrated to Australia and became a permanent resident and later an Australian citizen. Dr Razaghi says that officers from the Department of Health told him at that time that doctors with overseas qualifications who were temporary residents were entitled to registration, post graduate training and work experience in New South Wales, but as a permanent resident he did not have those rights. He says he was told that he needed to pass an examination before he could be registered. Dr Razaghi says that he failed the Australian Medical Council (AMC) examination on two occasions. With others, he began lobbying federal and state governments for changes to the registration, training and work opportunities available to overseas trained doctors who were permanent residents.

2 During 1997 Dr Razaghi participated in a hunger strike in protest against what he saw as the unfair and discriminatory treatment of overseas trained doctors. In December 1997 the Australian Doctors Trained Overseas Association and the Department of Health reached an agreement that included the conduct of an independent review of the health system’s employment practices for medical staff. Following that review a report, “The Race to Qualify” was produced in October 1998. The report included several recommendations which Dr Razaghi says the Department of Health has not implemented. Angered by the government’s alleged failure to address their concerns, a second hunger strike was organised. On 26 March 1999, during the course of that strike, Dr Razaghi complained of race discrimination to the President of the Anti-Discrimination Board. He said that people in his situation were being prevented from applying for temporary medical positions because they were either Australian permanent residents or Australian citizens.

3 Later in 1999, Dr Razaghi says that he learnt that other overseas trained doctors, including Dr Williams and Dr van Rensberg, had been granted conditional registration because their qualifications were from “preferred countries”, namely the United Kingdom and South Africa respectively. Dr Razaghi later discovered that the Medical Practice Act 1992 gave the NSW Medical Board a discretion to grant conditional registration to doctors in his situation. He says that neither the Department of Health nor the NSW Medical Board told him that he could apply for conditional registration. If that is the case, it may explain why Dr Razaghi never formally applied for conditional registration as a medical practitioner in New South Wales.

4 In July 1999, the President of the Anti-Discrimination Board referred Dr Razaghi’s complaints to the Tribunal. The complaints have had a long and complex procedural history and have been the subject of several interlocutory decisions. For example, the Tribunal has decided that the complaints are individual complaints and that Dr Razaghi is the only complainant: Razaghi -v- Director-General, NSW Department of Health & Anor [2002] NSWADT 4 and Razaghi v Director General, New South Wales Department of Health & Anor [2003] NSWADTAP 42. It has also decided that the period covered by the complaints is 26 September 1998 to 26 March 1999: Razaghi v Director General, Department of Health and NSW Medical Board [2005] NSWADT 125. Dr Razaghi appeared to be under the impression that the Tribunal arbitrarily restricted the period covered by the complaint. In fact, the time limit is imposed by the former s 88(3) of the Act. Since there was no evidence of the President of the Anti-Discrimination Board having formally extended the time covered by the complaint under the former s 88(4), the complaint can only cover the period of 6 months prior to the complaint being lodged.

5 In summary, Dr Razaghi complains of race discrimination and victimisation against the Director General of the Department of Health and the NSW Medical Board (the respondents). The essence of his race discrimination complaint is that as an overseas trained doctor he has been discriminated against in relation to the opportunities both respondents have given him to practice medicine in New South Wales. He also says he has been victimised by both respondents for complaining about race discrimination. The application before the Tribunal is the second application by the respondents to have the matter summarily dismissed as lacking in substance and/or disclosing no cause of action under the Act.

Characterisation of complaints

6 As Dr Razaghi was unable to identify the precise provisions of the Act which he alleged had been breached, the Tribunal, as previously constituted, formulated his complaints on the basis of the material he had provided. (See Razaghi -v- Director-General, NSW Department of Health & Anor [2002] NSWADT 4 at [40]. The victimisation complaints were ultimately formulated by this Tribunal in Razaghi v Director General, Department of Health and NSW Medical Board [2005] NSWADT 125 at [25].

Race discrimination complaint against Department of Health and NSW Medical Board

a) the first respondent discriminated against the applicant on the ground of race when it advertised “area of need” medical practitioner positions and informed the applicant that he was not an eligible applicant because, as an Australian permanent resident, he lacked credentials, being a pass in Australian Medical Council examinations, which were not required of applicants who were not permanent residents. This appears to be an allegation that the first respondent contravened s8(1)(b) of the Act, either as a principal, or as someone who aided and abetted another to do an unlawful act contrary to s52. It appears to be a claim of direct discrimination on the ground of race, in that the applicant was treated less favourably on the ground of his Australian nationality than other similarly placed people who did not have Australian nationality.

b) the first respondent and the second respondent discriminated against the applicant on the ground of race by requiring him, because he is an Australian citizen with medical qualifications obtained outside Australia, to pass an examination conducted by the Australian Medical Council before he could obtain temporary registration in NSW as a medical practitioner. People with medical qualifications obtained outside Australia who are not Australian citizens or permanent residents are not required to pass this examination in order to obtain temporary registration in NSW as a medical practitioner. This appears to be an allegation that the second respondent contravened s12(b) of the Act as a principal, and that the first respondent caused, induced or aided the second respondent to do an unlawful act contrary to s52. It appears to be a claim of direct discrimination on the ground of race, in that the applicant was treated less favourably on the ground of his nationality than other similarly placed people who did not have Australian nationality.

c) despite the existence of the temporary registration policy referred to above, the first respondent and the second respondent discriminated against the applicant on the ground of race by allowing the temporary registration of two people with medical qualifications from Wales (Dr Robin Williams) and South Africa (Dr Harry van Rensberg) in circumstances where the applicant would not be permitted temporary registration. Those circumstances were that, even though they were Australian permanent residents with medical qualifications obtained outside Australia, Drs Williams and van Rensberg were not required to pass the Australian Medical Council examination, which the applicant was required to pass, before being granted temporary registration as a medical practitioner. This appears to be an allegation that the first respondent, contrary to s52, caused, aided or induced the second respondent to contravene s12(b) of the Act. The applicant appears to be alleging indirect discrimination on the ground of race, in this instance, on the ground of national origin. The allegation appears to be that the second respondent imposed a condition or requirement in order to be granted temporary registration. That condition or requirement was that in order for an Australian permanent resident with medical qualifications obtained outside Australia to be granted temporary registration without having passed the Australian Medical Council examination, it was necessary to possess medical qualifications obtained in one of five preferred countries. This condition or requirement could be complied with more easily by people whose national origin was one of the five preferred countries, rather than by people with the same national origin as the applicant, which is Iranian. It is further alleged that this condition or requirement was not reasonable and that it could not be complied with by the applicant.

e) the first respondent discriminated against the applicant on the ground of race by denying him access to educational programs and work experience programs which have been provided to people with medical qualifications obtained outside Australia who are not Australian citizens or permanent residents. This appears to be an allegation that the first respondent has contravened s19(a) of the Act as a principal, and that it has, contrary to s52, aided, induced or permitted others to contravene s8(1)(a). The allegation appears to be one of direct discrimination on the ground of race, in that the applicant was treated less favourably on the ground of his Australian nationality than other similarly placed people who did not have Australian nationality.

Victimisation complaint against each respondent
f) the allegation against the Department of Health is that the applicant was subjected to an act of victimisation by the first respondent as the first respondent contravened s 50(1)(a) of the Act by reducing the amount of work which he had offered the applicant as a medical interpreter because he lodged a complaint under the Act against the first respondent ;

g) the allegation against NSW Medical Board is that he has been subjected to an act of victimisation by the second respondent as members of the second respondent have caused medical schools in New South Wales not to admit the applicant as a student because he has made allegations of discrimination on the ground of race. This is an allegation that the second respondent has contravened s 50(1)(c) of the Act.

7 Dr Razaghi did not seek to amend this characterisation of his complaints nor did he put any alternative characterisation to the Tribunal.

Evidence in support of the complaints

8 Identification of relevant evidence. Given the large volume of material filed by Dr Razaghi, the relevant evidence in support of his complaints was determined by the Tribunal after two days of hearings devoted exclusively to that task. The evidence which has been admitted was summarised in a letter to the parties dated 11 May 2005 and we will not list it again here.

9 Evidence in the hands of the respondents. Dr Razaghi complained that relevant evidence was in the hands of the respondents and that they should be made to produce it. Ms Ronalds for the Department of Health, submitted that the onus is on Dr Razaghi to prove that the respondents are in breach of the Act. In adversarial proceedings such as these, she maintained that the respondents have no obligation to produce any documents or call any witnesses, unless legally required to do so under a summons issued by the Tribunal. The Tribunal has a blend of adversarial and non-adversarial features. Section 73(2) of the Administrative Decisions Tribunal Act 1997 (ADT Act) states, in part, that “The Tribunal . . . may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.” In addition, the Tribunal is to ensure that all relevant material is disclosed so as to enable it to determine all of the relevant facts in issue in any proceedings; s 73(5)(b).

10 Tribunal’s role. In this case the Tribunal, as formerly constituted, made considerable efforts to formulate Dr Razaghi’s complaints. All Dr Razaghi needed to do was identify the evidence in support of those complaints. For example, if he alleged that he was told something by an officer of either respondent, he should have set out the particulars of any such conversation in his statement. If he alleged that particular documents or other material was in the hands of either of the respondents, he needed to identify the nature of that material and its relevance, and request a summons to be issued so that the material could be produced. Dr Razaghi requested that the Tribunal issue numerous summonses but we declined to do so. The reason for refusing to issue those summonses was that Dr Razaghi was unable to identify factual matters relevant to an issue in dispute that those summonses addressed. It is not the Tribunal’s role to identify or obtain the evidence in support of Dr Razaghi’s complaints.

Principles relating to applications for summary dismissal

11 Since the respondent’s first application for summary dismissal, the Act has been amended (Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004.) The current s 102, is similar to the former s 111 and the same general principles apply. Section 102 states that:

The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1) (a) (i) or (ii) or (b).

12 The relevant grounds in this case are in 92(1)(a)(i) and (ii) and s 92(1)(b) of the Act:

(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 of this Act or the regulations, or

...

(b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint,

13 In Razaghi -v- Director-General, NSW Department of Health & Anor [2002] NSWADT 4 a differently constituted Tribunal set out the principles relevant to an application for summary dismissal at [26] to [28]. We adopt those principles in these proceedings.

26 There is a considerable body of authority concerning the circumstances in which a complaint should be summarily dismissed pursuant to s111. The relevant cases are usefully summarised in Commissioner of Police v Orr [ 2001] NSWADTAP 16 at paragraphs 34 to 36. There is no reason to depart from the view expressed in that case that the power to summarily dismiss a complaint pursuant to s111 should be exercised with exceptional caution. Similar comments were recently made in the Federal Court about the summary dismissal of complaints under Commonwealth anti-discrimination statutes (see McGlade v HREOC [2000] FCA 1477 (per Carr J)). Thus, we must approach the s111 applications before us on the basis that the applicant must be given every reasonable opportunity to set out the content of his complaints and to produce evidence in support of them.

27 This approach mirrors that taken by courts when dealing with summary dismissal applications in civil proceedings. After discussing the cases which deal with summary dismissal applications pursuant to Part 13 rule 5 of the Supreme Court Rules 1970, and analogous provisions in other jurisdictions, Professor Bernard Cairns (Australian Civil Procedure, 4th ed, Sydney: LBC Information Services, 1996 at page 242) has summarised the law as follows:

So the general principle is that a pleading is liable to be struck out if it is plain and obvious that if all the alleged facts are proved it is still insufficient as a claim or defence. The formulae applied to bring an individual case within the general principle are that the case, whether a claim or defence, is unsustainable or unarguable, worse than demurrable, so manifestly faulty that it does not admit of argument, cannot be amended or is incontestably bad. These defects must relate to matters of substance, not just to the form of the pleading. If the court can see a substantial case, even though it is badly pleaded, the action cannot be summarily terminated.
28 The respondents have submitted that the complaints against them should be dismissed on the grounds that they are “misconceived ”, “lacking in substance” or fall within the words “that for any other reason the complaint should not be entertained”. There are numerous cases in which the meaning of these terms has been discussed (see, eg Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73; Khan v Macquarie University [1999] NSWADT 100; Maylor (No 1) v Mid North Coast Area Health Service [2001] NSWADT 117 and Commissioner of Police v Orr [2001] NSWADTAP 16). In keeping with the statements made in these earlier cases, we propose to proceed on the basis that, in broad terms, “misconceived” means a “misunderstanding of legal principle”, and “lacking in substance” means “an untenable proposition of law or fact”. These meanings are drawn from the Victorian Court of Appeal decision in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 108-109 (per Ormiston JA). We are of the opinion that, in some circumstances, persistent failure by an applicant to provide sufficient details of a complaint may justify dismissing a complaint “for any other reason” because of denial of procedural fairness to the respondent.

14 Scope of complaint. The first complaint is that the Department of Health discriminated against Dr Razaghi on the ground of race contrary to s 8(1)(b). Section 8(1)(b) states that:

(1) It is unlawful for an employer to discriminate against a person on the ground of race:

(b) in determining who should be offered employment

15 The particulars of this complaint are that the Department of Health advertised “Area of Need” medical practitioner positions and informed Dr Razaghi that he was not eligible to apply because he had not passed the Australian Medical Council examinations. Dr Razaghi’s case was that applicants for Area of Need positions who were not permanent residents, and therefore were not of Australian nationality, were not required to pass the AMC examination.

16 What is an “Area of Need’ position? Correspondence apparently generated by the Department of Health in October 1997 (Exhibit 7) provided some evidence of what an “Area of Need” position involved at that time:

“Area of Need” is a term which applies to a medical position (not a geographical area) with a specific category of medical registration. The position can be located within a public health service (eg a public hospital) or a private medical practice where local, State and/or national advertising has failed to attract a locally-registered medical practitioner and it can be demonstrated that the delivery of health services is adversely affected.

Overseas trained doctors can be recruited to work in Area of Need positions on a temporary basis while the employer continues its efforts to attract a local medical practitioner to fill the position on a permanent basis.

Application for Area of Need status are made by the hospital or other employer where the vacancy exists. They are sent to the NSW health Department for assessment, which is made in consultation with the NSW Branch of the Australian Medical Association and the relevant Medical College.

17 Evidence of the treatment about which Dr Razaghi complains. This complaint requires Dr Razaghi to lead evidence of at least three matters, namely:

- that the Department of Health advertised “Area of Need” medical practitioner positions;

- that someone employed by the Department informed him that he was not eligible to apply because he had not passed the Australian Medical Council examinations; and

- that applicants for Area of Need positions who were not permanent residents, and therefore were not of Australian nationality, were not required to pass the AMC examination.

18 Dr Razaghi did not mention Area of Need positions in his statement. He told the Tribunal that he went to Lithgow and Bathurst in response to advertised positions. The only documentary reference to his interest in Area of Need positions is in a letter from him to the Anti-Discrimination Board dated 28 May 1999 (Tab 10 of the President’s Report) which stated, in part, that:

I wish to inform you that I was (sic) Bathurst with 2 other doctors to investigate the areas of need position approved/but not filled as at April 1999. It is sad that the NSW Health is involved in a (sic) such misinformation without proper investigation in these positions. At Bathurst it is claimed that 3 positions are vacant. To our surprise we found out there is no position available at Lithgow. I spoke to Dr Emery Kertesz on ( phone number ). Even local Australian graduate can not get that sort of positions after even 3 years Australian Experience let alone our skills are not immediately recognisable due to no fault of ours.

19 This passage discloses that Dr Razaghi went to Bathurst some time in or about April 1999, that is after the complaint of discrimination had been lodged. He does not assert that he put himself forward as an applicant for an Area of Need position in either Bathurst or Lithgow. Dr Razaghi mentions in his submissions that:

“After 1999 I was successful in obtaining a position with Campbelltown Medical Centre. I asked the First and Second Respondent to declare Campbelltown an area of need. Ms Margaret Banks prevented to obtain (sic) that position with assist (sic) of the second respondent.”

20 Again, this incident did not occur within the period covered by the complaint and, in any case, was not an Area of Need position. Dr Razaghi has not provided evidence of an Area of Need position that the Department of Health had advertised. Nor did he provide particulars of any conversation or correspondence that he had with an employee of the Department of Health to the effect that he was not eligible to apply for an advertised position because he had not passed the AMC examinations.

21 The third element that Dr Razaghi would be required to prove is that applicants for Area of Need positions who were not permanent residents, and therefore were not of Australian nationality, were not required to pass the AMC examination. There was scant evidence of the Department of Health’s policy in relation to the eligibility of people to fill Area of Need positions. Exhibit 5 is a newsletter entitled “Information Service for Overseas Trained Health Professionals” dated May 1999. The newsletter was “An initiative of the NSW Health Department and the NSW Department of Education and Training.” The newsletter states that prior to 7 May 1999, the policy of the Department of Health was that non-specialist permanent resident overseas trained doctors were eligible to work in an “Area of Need” position only after passing the AMC Multiple Choice Questions exam. However temporary resident doctors from five countries, Great Britain, Ireland, South Africa, Hong Kong and Singapore, were allowed to work in Area of Need positions for up to two years without having to pass the AMC exam.

22 Exhibit 12 is a News Release dated 12 May 1999 from the Minister for Health announcing changes to the registration rules for overseas trained doctors. The first page of the Media Release ends with the following comment:

Prior to these changes, Area of Need positions were only open for a two year limit to temporary resident doctors from the five nations whose medical assessment standards align with Australia.

23 Even at its highest, this evidence falls short of establishing that the Department of Health had the policy reflected in the documents admitted into evidence. There was no evidence of who was responsible for writing the newsletter or the source of the information contained in it. Similarly, the news release is not a reliable evidence of the Department’s policy during the relevant period. Even if there was sufficient evidence to establish the third element of the complaint, there was insufficient evidence to support either of the first two elements and consequently the complaint lacks substance.

24 Aiding and abetting. Alternatively, Dr Razaghi alleged that the Department of Health “aided and abetted” another prospective employer to breach the Act pursuant to s 52. That section states that, “It is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act.” Whether or not the Department advertised “Area of Need” positions, its role was to assess applications from employers for positions to be given “Area of Need” status. That assessment took place in consultation with the NSW Branch of the Australian Medical Association and the relevant Medical College. Dr Razaghi did not say whom it was that the Department of Health had aided or abetted to breach the Act. Presumably, it would have to have been a prospective employer who advertised Area of Need positions. As there is no evidence of who advertised any “Area of Need” position, the Department of Health cannot be held liable for causing, instructing, inducing, aiding or permitting such a person to breach the Act. Consequently this part of the complaint also lacks substance.

Direct discrimination in relation to temporary registration

25 Basis of complaint. This complaint is similar to the first complaint except it relates to Dr Razaghi’s alleged inability to obtain temporary registration as a medical practitioner unless he passed the AMC examination. According to Dr Razaghi, people with medical qualifications obtained outside Australia, who are not Australian citizens or permanent residents, are not required to pass this examination in order to obtain temporary registration in NSW. This is an allegation that the NSW Medical Board contravened s 12(b) of the Act. Section 12 states that:

It is unlawful for an authority or a body which is empowered to confer, renew or extend an authorisation or a qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation to discriminate against a person on the ground of race:

(a) by refusing or failing to confer, renew or extend the authorisation or qualification,

(b) in the terms on which it is prepared to confer the authorisation or qualification or to renew or extend the authorisation or qualification, or

(c) by withdrawing the authorisation or qualification or varying the terms or conditions upon which it is held.

26 The Tribunal as formerly constituted, apparently identified s 12(b) as the basis for Dr Razaghi’s complaint because Dr Razaghi never formally applied for conditional registration as a medical practitioner in New South Wales.

27 Evidence in support of the complaint. We are satisfied that Dr Razaghi sat for the AMC examinations on two occasions but did not pass. There is no evidence as to when Dr Razaghi sat for those examinations. In any case the alleged act of discrimination is not being required to sit for the exam but the terms on which the Board was prepared to register him as a medical practitioner. Although Dr Razaghi never formally applied for registration, he and five others wrote to Mr Andrew Dix, Registrar of the Medical Board, on 7 November 1998. That letter says, in part:

We would like to refer to our conversations in Oct 1998 with you when Dr Mostaghami and my wife Dr Meherangiz Razaghi and I sought your advice regarding the possibility of obtaining necessary application forms for the conditional registration.

...

We are desperate to commence any medical jobs. No employer is even ready to reply to our correspondences without registration. May we ask you to resolve this catch 22 situation?

28 There was no evidence of a reply to this letter. At its highest, the letter is evidence that Dr Razaghi sought advice from Mr Dix about obtaining the necessary application forms and the terms on which registration could be conferred. There was no evidence from Dr Razaghi about what Mr Dix told him, if anything, about the terms on which the Medical Board was prepared to grant him conditional registration. Dr Razaghi said that he now understands that there were provisions in the Medical Practice Act 1992 under which he could have applied for conditional registration. If he had known that at the time, he said he would have applied.

29 Obtaining registration. The NSW Medical Board submitted that s 12(a) and s 12(b) are both predicated on a formal application for registration having been made. The Medical Practice Act 1992 provides that there are several bases on which a person is entitled to be registered as a medical practitioner. If a person does not meet the requirements for registration under s 4, he or she can apply for conditional registration under s 7. The Medical Board has a discretion under that provision to register a person and may impose conditions on that registration. For example, the Board may register a person as a medical practitioner “for the purpose of enabling an unmet area of need to be met if the Board is satisfied that the person has suitable qualifications and experience to practise medicine in that area of need.” Similarly, a person “may be registered on a temporary basis if the Board is satisfied that it is in the public interest to do so.” Ms Furness, representing the NSW Medical Board, submitted that because the Board’s decision in relation to conditional registration is a discretionary one, it is not possible to identify the terms, if any, on which the Board would have been prepared to grant Dr Razaghi conditional registration.

30 Tribunal’s findings on scope of s 12(b). Section 12(b) should be read in the context of s 12 as a whole. Among other things, that section makes it unlawful for a body such as the NSW Medical Board, to discriminate against “a person” on the ground of race by refusing to confer registration or in the terms on which it is prepared to confer registration. Given that Dr Razaghi did not apply for conditional registration, the terms, if any, on which the Board would have been prepared to confer that registration are not known. While various circumstances are listed in s 7 as being a possible basis for conditional registration, the fact that the Board’s power is discretionary means that the terms on which the Board is prepared to confer conditional registration may depending on the circumstances.

31 Conclusion. Dr Razaghi acknowledges that he was theoretically eligible for conditional registration even without passing the AMC exams. That acknowledgement effectively disposes of this complaint. Even if we were satisfied that the Department of Health failed to advise Dr Razaghi of his entitlements, that conduct does not come within an area of discrimination covered by the Act.

32 Aiding and abetting. Alternatively, Dr Razaghi alleged that the Department of Health “aided and abetted” the NSW Medical Board to breach the Act pursuant to s 52. Since we have found no contravention of s 12(b), the Department of Health cannot have “aided or abetted” the Medical Board to breach the Act.

Indirect discrimination in relation to temporary registration.

33 Scope of complaint. This is an allegation that the NSW Medical Board breached s 12(b) by “indirectly” discriminating against Dr Razaghi on the ground of his race in the terms on which it was prepared to confer registration. The complaint also involves an allegation that the Department of Health caused, aided or induced the Medical Board to contravene s 12(b). The ground of discrimination in this case is Dr Razaghi’s “national origin” which is Iranian. Section 7 defines “indirect” race discrimination in the following terms:

(1) A person ("the perpetrator") discriminates against another person ( "the aggrieved person" ) on the ground of race if, on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, the perpetrator:

...

(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

34 Identification of requirement or condition. The condition which the NSW Medical Board allegedly imposed was that “in order for an Australian permanent resident with medical qualifications obtained outside Australia to be granted temporary registration without having passed the Australian Medical Council examination, it was necessary to possess medical qualifications obtained in one of five preferred countries.” Without better evidence of the Medical Board’s policies at the relevant time, it is difficult to determine whether this “condition” is an accurate reflection of those policies. If it was, Dr Razaghi would then have to establish that he could not comply with the condition and that the condition could be complied with more easily by people whose national origin was one of the five preferred countries, rather than by people with the same national origin as himself. (Iranian).

35 Evidence. Apart from a passing reference to a Dr Robyn Williams in a publication entitled “New South Wales Rural Medical Vacancy Booklet, July 1999” published by the NSW Rural Doctors Network, there is no evidence that Dr Williams was registered as a medical practitioner or of any conditions attached to his registration. There is no evidence whatsoever as to Dr van Rensberg’s circumstances. Nor is there any evidence of the reasonableness or otherwise of any requirement or condition. As Dr Razaghi has not adduced reliable evidence of any of the elements of indirect discrimination set out in s 7(1)(c) of the Act, this complaint lacks substance.

36 Aiding and abetting. Alternatively, Dr Razaghi alleged that the Department of Health “aided and abetted” the NSW Medical Board to breach the Act pursuant to s 52. Since we have found no contravention of s 12(b), the Department of Health cannot have “aided or abetted” the Medical Board to breach the Act.

Direct race discrimination against the Department of Health re denial of access to educational and work experience programs.

37 This complaint is a complaint that the Department of Health breached s 19(a) of the Act by denying Dr Razaghi access to educational and work experience programs. Section 19(a) states that:

It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race:

(a) by refusing to provide the person with those goods or services

38 This allegation appears to be based on paras 8 and 9 of Dr Razaghi’s affidavit:

After becoming a permanently resident medical practitioner in New South Wales we were informed by NSW Health Authority that Temporary Resident doctors qualified overseas were given the right to registration, post-graduate training and work experience but as a Permanent Resident I did not possess the same rights as either Temporary Residents or Local Medical graduates.

...

We were also denied access to post-graduate training program, (sic) designed to assist those from disadvantaged countries to advance their careers...

39 No particulars of the conversations referred to in these paragraphs were provided. In addition there was no evidence of the services, if any, the Department of Health provided to doctors with overseas qualifications who were not registered in NSW. Apart from Dr Razaghi’s assertion, there is no evidence that he was ever refused any kind of service provided by the Department of Health. Dr Razaghi also states in para 21 of his statement that “On 7th day of March 2000 I discovered that according to law I had possessed the right of conditional registration, post graduate study and training, and employment that I had been wrongfully informed I was not entitled to.” Even if we were satisfied that the Department of Health failed to advise Dr Razaghi of his entitlements, that conduct does not come within an area of discrimination covered by the Act. The evidence does not support a breach of s 19(a) and this complaint lacks substance.

Victimisation against Department of Health

40 The victimisation complaint against the Department of Health is that the Department reduced the amount of work which it offered Dr Razaghi as a medical interpreter because he had lodged a discrimination complaint against the Department. Section 50(1)(a) states that:

(1) It is unlawful for a person ("the discriminator") to subject another person ( "the person victimised" ) to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

41 Dr Razaghi asserted during the hearing, that the Department of Health had employed him as a medical interpreter. He referred to a pay slip which provided evidence of that relationship. We were unable to locate that pay slip in the material Dr Razaghi provided to the Tribunal. Even if Dr Razaghi had proved that he was employed by the Department of Health at some time, there was no evidence, other than assertion, of any reduction in the quantity of work allocated to Dr Razaghi. There is insufficient evidence to support this complaint and it lacks substance.

Victimisation against NSW Medical Board

42 We gather that this complaint relates to the fact that Dr Razaghi has not been granted entry to various medical schools over the years. It appears that he was:

- refused a place in the course of Clinical Drug Dependence Studies at the Macquarie University for 1987;

- advised that he did not qualify for entry into the Faculty of Medicine at the University of New South Wales in 1987;

- denied an interview for entry into the school of medicine at the University of New South Wales some time in 1995; (Exhibit 17); and

- denied entry to the University of Newcastle Faculty of Medicine in January 1995 (Exhibit 18).

43 There is no evidence linking the Medical Board with any of those decisions. Two of the applications were made in the late 1980s. The other two were also made well before Dr Razaghi lodged his complaint of victimisation. The rejections cannot possibly relate to him having lodged a complaint with the Anti-Discrimination Board. This complaint lacks substance.

Conclusion

44 There is no doubt that Dr Razaghi is passionate about what he sees as the injustices endured by overseas trained doctors who are permanent residents. He has been involved in an intense political campaign over many years to address those issues. However the Act only provides a remedy for complainants who can prove that they have been treated in a discriminatory way because of their race. Dr Razaghi had great difficulty reframing his complaint from one involving the plight of overseas trained doctors over a decade or more, to a complaint about the treatment afforded to him during the six months prior to the complaint being lodged. Unfortunately for him, he has failed to adduce sufficient evidence to support his allegations. Neither the voluminous material he filed including videos, press clippings and reports, nor his impassioned pleas and assertions from the bar table, make up for the lack of hard evidence of discriminatory conduct or victimisation.

Orders

The applicant’s complaints are dismissed as lacking in substance.