Soares, Jesus Benedicto v Human Rights & Equal Opportunity Commission

[1998] FCA 444

JESUS BENEDICTO SOARES v. HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION and BAYER AUSTRALIA LIMITED
No. NG 761 of 1997
FED No. 444/98
Number of pages - 11
Administrative Law

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

TAMBERLIN J

Administrative Law - judicial review - complaint under Racial Discrimination Act 1975 (Cth) ("RDA") and Disability Discrimination Act 1992 (Cth) ("DDA") - complaint summarily dismissed by Inquiry Commissioner - whether procedural unfairness resulted from Commissioner's refusal to grant an adjournment of a hearing date - discretion of Commissioner - factors relevant to discretion - whether procedural unfairness resulted from failure by Commissioner to adduce evidence from original decision-makers on issue of redundancy - nature and scope of power given by RDA and DDA to Commissioner.

Judiciary Act 1903 (Cth) s 39B(1A)

Disability Discrimination Act 1992 (Cth) , ss 76(1), 79(1)

Racial Discrimination Act 1975 (Cth), ss 25A(1), 25E, 25F, 25K, 25V, 25X, 25Z

Cains v Jenkins (1979) 42 FLR 188, cited

Assal v Department of Health and Housing [1992] EOC 92-409, cited

State of Queensland v JL Holdings Pty Limited(1996) 141 ALR 353, applied

Nagasinghe v Worthington (1994) 53 FCR, 175 applied

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, cited

Video v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167, cited

Luu v Renevier (1989) 91 ALR 39, cited

Simons v Minister for Immigration and Ethnic Affairs (1995) 56 FCR 492, cited

SYDNEY, 17 April 1998 (hearing), 30 April 1998 (decision)

#DATE 30:4:1998

Counsel for the Applicant:

Mr D N Stewart

Solicitor for the Applicant:

John Bettens & Co

Solicitor for the First Respondent:

Human Rights and Equal

Opportunity Commission

Mr J Armstrong

Counsel for the Second Respondent

Dr C J Birch

Solicitor for the Second Respondent

Pigott Stinson Stuart Thom

THE COURT ORDERS THAT:

1. The application for review is dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

TAMBERLIN J

The proceeding

This is an application for an order of review, brought pursuant to s 39B(1A) of the Judiciary Act 1903 (Cth) ("the Act"), in relation to a decision made by the Human Rights and Equal Opportunity Commission ("the Commission"), concerning complaints made by Mr Soares, ("the applicant") against a decision by his former employer, Bayer Australia Limited ("Bayer"), to make him redundant.

The application is based on allegations made by Mr Soares of procedural unfairness in relation to the way the Commission determined an application for adjournment of the hearing on 15 July 1997. This allegation is made together with an allegation that he suffered additional procedural unfairness as a result of a failure by the Commission to adduce evidence from relevant officers of Bayer, who were involved in making a decision as to his redundancy.

The hearing before the Commission was held pursuant to s 79(1) of the Disability Discrimination Act 1992 (Cth) ("the DDA"), and s 25A(1) of the Racial Discrimination Act1975 (Cth) ("the RDA").

Introduction

On 15 February 1994, the daughter of Mr Soares lodged a complaint with the Commission, which indicated that Mr Soares, who had been employed as an accountant in Bayer's Finance Department for thirteen years until April 1994, was made redundant by Bayer following a period of sick leave. It was alleged that Mr Soares had been discriminated against by Bayer in its decision to make him redundant by reason of his disability, which had been diagnosed as a generalised anxiety disorder.

An inquiry was conducted by the Disability Discrimination Commissioner pursuant to s 71 of the DDA and, after attempts to conciliate the complaint proved unsuccessful on 8 August 1995, it was referred for an inquiry pursuant to s 76(1) of the DDA. On 22 November 1995, because complaints had also been made on behalf of Mr Soares in relation to racial discrimination, the Commissioner directed that Mr Soares provide a letter setting out details of these allegations. These were provided by letter 27 November 1995 and referred to the RDA. On 29 March 1996, the complaint under the RDA was referred by the Race Discrimination Commissioner to the Commission for Inquiry.

A joint hearing of the inquiry in relation to each complaint was held by the Commission in Sydney on 15 July 1996 in the absence of Mr Soares. The Commissioner decided to dismiss the complaint. Written reasons for decision were published on 19 August 1997.

The Issue

At the hearing before me Mr Soares was represented by Mr Stewart of Counsel. A representative of the Commission so appeared as did Counsel for Bayer, Mr Birch.

The Commission did not make any independent submissions and submitted to the decision of the Court.

Refusal of adjournment

The applicant's introductory submission is that, in proceedings before a statutory tribunal such as the Commission, there must be a scrupulous adherence to the principles of natural justice as well as an appearance of fairness to an informed observer. Reference was made to the decision of the Full Court in Cains v Jenkins (1979) 42 FLR 188 at 194, where Sweeney and St John JJ referred to the test as being "whether there was a reasonable suspicion of unfairness generated in an assumed informed observer." Applying that test to the present circumstances, it is submitted that the conduct of the hearing held on 16 July 1996 led not only to an appearance of unfairness but also to actual unfairness.

The applicant further submits that considerations of fairness and natural justice must have regard to the nature of the disability suffered by the complainant, Mr Soares, which it is common ground was a severe general anxiety state arising as a result of circumstances surrounding his retrenchment. His illness, it is said, had been diagnosed as chronic anxiety and depression requiring significant and regular treatment, including medication.

The applicant says that in refusing an application by Mr Soares for an adjournment and proceeding with the hearing on 15 July 1996, in his absence and in the absence of any representative on his behalf, the Commission failed to afford Mr Soares procedural fairness.

In the course of her reasons, the Commissioner outlines the procedural history of the matter, which I summarise below:

Procedural history

On 15 September 1995, the Commissioner wrote to the parties requesting that Mr Soares provide supporting material in relation to his claim by 16 October 1995 and required Bayer to provide its material by 30 October 1995. At that stage, the hearing of the inquiry was set down on 18 and 19 December 1995 in Sydney and the parties were so notified.

On 9 October 1995, as a result from a request from Mr Soares, the Commission decided that Mr Soares should have until 13 November 1995 to provide his material and Bayer should provide its material by 27 November 1995. On 12 November 1995, Mr Soares enclosed a large amount of material in support of his complaint and requested that a number of witnesses from Bayer should be summonsed to appear at the hearing. Further material was sent by him on 18 November 1995, together with attachments.

A further directions hearing was held on 22 November 1995, at which time Counsel was appointed to assist the Commission. Mr Soares was directed to deliver to the Commission and Bayer by 30 November 1995 written details of his allegation of discrimination on the basis of race and disability; a list of witnesses he intended to call and, where possible, a short outline summarising the substance of the evidence to be given by each witness together with copies of any further documents upon which he intended to rely. Bayer was directed to deliver to Mr Soares by 11 December a list of witnesses it intended to call with a short outline summarising what each would say, and copies of any documents. Liberty to apply was reserved on one day's notice.

On 27 November 1995, Mr Soares requested that the hearing be postponed until after April on medical grounds and in order to seek representation. This was opposed by Bayer.

On 11 December 1995, Bayer sent to the Commission a short outline of two witnesses it proposed to call and copies of documents it proposed to rely upon. The witnesses nominated were Mr Logan and Mr Lim.

On 13 December 1995, a further directions hearing took place by telephone. The hearing was then adjourned until 15 April 1996, by which time Mr Soares was to report as to the state of his health and the steps he had taken to obtain legal representation. It was indicated that the hearing of the inquiry, if possible, should be expedited at that time.

On 2 April 1996, Mr Soares notified the Commission that legal representation was being arranged but that it would take some time.

The matter was again mentioned on 15 April 1996 when Mr Soares attended with a solicitor. Bayer sought to have the complaint struck out and opposed the application for a further adjournment made by the solicitor. Bayer submitted that Mr Soares' complaints were trivial or vexatious and alternatively that his remedies would be more appropriately sought in the Compensation Court.

The reasons for decision of the Commission recognise the tension between the competing requirements of expedition and fairness. Counsel for the Commission pointed out that the Commission acted as an inquisitorial tribunal, with a duty to investigate the complaints that came before it and also submitted that there was a general principle that a party should prosecute a claim once initiated.

The Commissioner declined to strike out Mr Soares' complaint and enumerated the factors she considered relevant. The first was that Mr Soares was not obliged to seek and retain legal representation. Second, that his alleged disability presented him with particular difficulties attempting to represent himself. Third, that the remedies available in the Compensation Court did not cover the claims made under the DDA or the RDA and were not co-extensive with the rights for compensation or loss or damage under the DDA and RDA. Finally, that the complaints made by Mr Soares of alleged breaches of the DDA were sufficient to warrant inquiry by the Commission.

Having regard to these matters, the Commissioner made directions on 15 April 1996 fixing the date for hearing on 13 and 14 June 1996. Further directions were made setting a timetable for the filing and service of material. On 15 April 1996, the parties were notified that further hearing dates were available if required on 1 and 2 July 1996. Liberty to apply was reserved.

On 2 May 1996, Bayer sought a further directions hearing seeking to have the complaint struck out because Mr Soares had failed to comply with the directions to provide material by 1 May 1996. This was not granted.

There was a further directions hearing on 22 May 1996 at which Mr Soares again sought vacation of the allocated hearing date of 13 and 14 June and adjournment until his workers' compensations claim had been determined. His reasons were that he had failed to secure legal representation and he had anticipated he would not have obtained legal representation when the hearing dates in June were allocated. Bayer consented to a short adjournment.

On 22 May 1996, further directions were made for hearing the DDA and RDA complaints together. The hearing dates of 13 and 14 June 1996 were vacated and new hearing dates were set for 15 and 17 July 1996. There was yet a further timetable prescribed.

After 22 May 1996, number of letters were written to the Commission seeking a further adjournment. This was not granted and Mr Soares was so informed by letter dated 8 July 1996.

On 12 July 1996, the Commission received another report from a psychiatrist for Mr Soares, which stated:

"Mr Soares rang me yesterday concerning an increase in his depression and a recurrence of his strong suicidal thoughts. It would appear that this worsening is in relation to the impending hearing next week. I would advise that the hearing be delayed as I feel that this may be detrimental to his mental health."

On 12 July 1996, the Commissioner advised Mr Soares that she was not satisfied that the hearing should be further delayed and confirmed that the hearing would commence on 15 July 1996. Mr Soares was informed that the Commissioner would treat any further correspondence from Mr Soares and the psychiatrist as an application for a further adjournment, to be dealt with on the morning of the hearing on 15 July 1996.

On 15 July 1996, there was no appearance for Mr Soares and the inquiry proceeded. The Commission was satisfied that Mr Soares had been given sufficient notice of the inquiry pursuant to the legislation.

Senior Counsel for Bayer then made an application to have the complaints of Mr Soares dismissed. Counsel assisting the Commission submitted the inquiry should proceed as an hearing in the absence of Mr Soares. After considering this submission the Commissioner declined the application for further adjournment and referred to the past history as outlined above.

After being referred by Counsel to the judgment of the President of the Commission, Sir Ronald Wilson in Assal v Department of Health and Housing [1992] EOC 92-409, the Commissioner determined that there was sufficient evidence in regard to the complaints of Mr Soares before the Commission in the Reports to warrant a hearing and therefore proceeded with the inquiry in the absence of Mr Soares.

The Commissioner's reasons for refusing the adjournment are set out in the following extract:

"I considered the history of the matter and in particular, the previous adjournments that had been granted at the request of Mr Soares. I noted that despite several attempts Mr Soares had been unsuccessful in securing legal representation, on terms acceptable to himself, to assist in the presentation of his complaints. Several adjournments had been granted to assist Mr Soares to secure legal representation and prepare his case, all of which had been strongly resisted by Bayer which sought a speedy resolution of the complaints against them. I considered that the Commission and Bayer had provided Mr Soares with a reasonable opportunity to prepare and present his case and that further delay would be unreasonable in the circumstances. Accordingly, the Commission proceeded with its inquiry into the complaints made by Mr Soares."

Adjournment - Discussion

As the High Court pointed out in State of Queensland v JL Holdings Pty Limited (1996) 141 ALR 353, the decision of whether to grant an adjournment or not depends on the particular circumstances of each case. There are no universally valid propositions as to categories of circumstances in respect of which adjournments must be granted. The judgment refers to the principle of restraint upon appellate interference because procedural orders frequently involve considerations on which different conclusions can be reached. This is due to the fact that they involve the weighing of many competing considerations to which different weight may readily be attached by individual judges. The Court also considered that particular judges in busy trial courts may give different emphasis to the importance of compliance with rules of procedure and court ordered timetables and thus disclose differing commitments to the principles of case management.

The circumstances in the JL Holdings case were somewhat different from the present. That the case concerned the making of an amendment to a defence in proceedings before the Federal Court. It did not involve an adjournment application. The judgment involved a consideration of the importance of "case management" in relation to other competing considerations, such as the need to attain a just result. In the majority judgment at 357-358, their Honours said:

"In our view, the matters referred to by the primary judge were insufficient to justify her Honour's refusal of the application by the applicants to amend their defence and nothing has been made to appear before us which would otherwise support that refusal. Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. In taking an opposite view, the primary judge was, in our view, in error in the exercise of her discretion."

Kirby J, in a separate judgment, agreed the orders proposed by the majority, which allowed the appeal and ordered that the applicants have leave to appeal.

In my view, it was open on the material before the Commissioner, in the present case, to reach the conclusion that a further adjournment should not be granted and to form the opinion that this decision would not lead to an unjust result.

Under s 25V of the RDA the Commission is not bound by the rules of evidence and may inform itself on any matter as it thinks fit. It is required to conduct the inquiry with as little formality and technicality and with as much expedition as the requirements of the Act and a proper consideration of matters before the Commission permit. This latter requirement makes it clear that a balance is to be struck between an expeditious inquiry and a full consideration of the matters before the Commission. A similar requirement is found in s 98 of the DDA.

Whilst due regard must be paid to the medical certificates produced by Mr Soares as to his extreme state of anxiety and the desirability of legal representation, there was expert evidence before the Commissioner that it was important in the interests of Mr Soares that an early hearing should take place to resolve the complaints. However, this report was qualified by the statement that the hearing should not occur until Mr Soares had appropriate legal representation because the stress of the hearing was likely to be detrimental to his health.

In addition to considerations of the ill health of Mr Soares and his inability to obtain legal representation, other relevant matters for the Commissioner included:

* the extensive history of non-compliance with directions;

* the prior adjournments;

* the desirability of an early resolution of the complaints in the interest of all parties; including Mr Soares;

* the fact that Mr Soares had more than six months to arrange legal representation, but was unable to do so;

* the duty of the Commissioner to determine the matter;

* due expedition having regard to a proper consideration of the issues;

* the seriousness of the allegation of disability and racial discrimination against Bayer and its employees;

* the fact that, at the stage when the adjournment was declined, there was no indication whatsoever of any time or period within which a hearing might take place.

These matters were adverted to by the Commissioner and were taken into account. The appropriate weight to be given to them was a matter for her.

Having regard to the above considerations, I am satisfied that it was open to the Commissioner to reach the conclusion that an adjournment should be declined and that such decision did not involve any procedural unfairness or injustice.

Failure to call decision-makers

Having refused the adjournment and having found that the complaints of Mr Soares should not be dismissed as lacking in substance, the Commissioner embarked on a hearing. Counsel assisting the Commission called three witnesses on behalf of the Commission. These were employees of Bayer. They were cross-examined by Senior Counsel for Bayer.

The first witness called was Ms Apps, who had worked on the same floor as Mr Soares until 1993. Her work involved dealing with the financial entitlements of employees such as superannuation, workers' compensation and pay roll. However, Ms Apps did not have responsibility for employment decisions. She had some meetings with Mr Soares, who provided medical reports requesting that he not perform certain duties or deal with certain people over a period of time. Her evidence was that Mr Soares told her he was having difficulty with certain aspects of his job, which resulted in him getting cross with people and saying that he did not want to deal with people. He did not agree to a performance appraisal, which was scheduled for him. During the early part of 1994, Mr Soares is said to have indicated that he did not think he would be able to continue working. Ms Apps advised Mr Soares of the requirements for a person to be considered totally and permanently disabled and also advised him of his particular rights. Ms Apps had no role in the decision to make Mr Soares' position redundant. Ms Apps was present when Mr Peter Lim and Mr Grant Logan discussed making Mr Soares' position redundant. This was in December 1993 or January 1994. It was also about this time that Ms Apps reported to Mr Lim and Mr Logan about Mr Soares' medical condition.

Mr Robert Williams, an employee of Bayer, was called as a witness. He was the General Manager of Human Resources of Bayer. His evidence related to the decision to make positions redundant at Bayer in 1992 and 1993, as a result of a restructuring and in response to the economic recession. He tendered a document, which contained a list of Bayer personnel made redundant during 1993 and 1994. He gave evidence that, while it was his role to provide advice on the mechanics of making a position redundant, the decision which positions should be classified redundant was left to the business group of which he was not a member. He gave evidence on discussions he had with Mr Logan, the Finance Director, who was a member of the business group. He said that Mr Logan approached him in about January 1994 and advised him that he wished to make Mr Soares' position redundant. At that time Mr Soares had returned to work. He said that Mr Soares was not treated differently from other employees when his position was made redundant. His work was able to be done by other staff. The position was not readvertised and had not been filled. The position ceased to exist on 18 January 1994. He referred to Bayer having an equal opportunity policy, which was actively implemented by the company in 1993 and 1994. There was also, he said, an anti-discrimination policy that was said to be current at the date of the hearing. Mr Williams had no involvement in appraisal of staff performance but merely provided administrative back-up.

The third person called by the Commission was Mr Christopher Smith, who was called in relation to Mr Soares' complaint that he had been subjected to racial taunts and discriminated against in his employment. Mr Smith was an accountant with Bayer. Mr Smith admitted that he referred to Mr Soares as a "wog" but he did not understand that Mr Soares took offence to his term.

At the conclusion of the hearing on 15 July 1996, Senior Counsel for Bayer pointed out that the actual decision-makers, Mr Lim and Mr Logan had not been called. Counsel indicated to the Commissioner that Mr Lim was present but Counsel for the Commission agreed that no adverse comment would be made because Mr Lim was not called. Although he was present, the Commissioner declined to hear from Mr Lim. In order to clarify the position, Senior Counsel for Bayer said that if the Commissioner had any doubt or needed some more material Bayer would endeavour to provide it. The Commissioner did not think it necessary to take up this offer. The Commissioner then made some brief comments and found that there was no evidence of any discrimination or differential treatment of Mr Soares.

Submissions

It is submitted for Mr Soares that there was a denial of procedural fairness arising from the failure to call any witnesses, who could give evidence actually bearing on the decision as to why Mr Soares was made redundant. It is said that an informed observer would have, therefore, a suspicion of unfairness that the Commission made its determination in the absence of the complainant, without requiring reasonably available evidence be given, which was directly relevant. It is said that the persons directly responsible for the decision to make Mr Soares redundant were Mr Peter Lim and Mr Grant Logan, the Finance Directors.

It should be noted that in its letter of 11 December 1995, Bayer had indicated that it proposed to call as witnesses both Mr Peter Lim and Mr Grant Logan. Bayer furnished brief outlines of the evidence, which it was said those witnesses would give to the Commission. There was no indication in those outlines of anything, which would support the case advanced by Mr Soares.

It is apparent from the outline of witnesses' statements furnished by Bayer that the formal and final decision to make Mr Soares' position redundant was taken by Mr Logan with the agreement of the Managing Director, Mr Peter Senne. It appears from the outline of Mr Peter Lim that he did not play any major part in the decision. He discussed the matter with Mr Logan in January 1994 and on 18 January he informed Mr Soares that his position was redundant.

Bayer did not call at the hearing on 15 July 1996 either Mr Logan or Mr Senne . However, Bayer did offer to deal with the case as fully as it could and if there was any doubt about it, or if the Commissioner needed more material, Bayer indicated it would do its best to provide such material if so requested. The Commissioner did not think it necessary and made no such request.

Bayer submitted that the Commission was not obliged to seek out all possible relevant evidence in the absence of any material to indicate that the complaints had some foundation. It was said that such an obligation would be too onerous. Counsel pointed to the circumstance that three witnesses had been called and said that the mere fact that there might have been further witness, who could have gave given additional evidence, was not a ground for impugning the Commissioner's decision in the absence of some indication that such evidence would support the case of Mr Soares. The Commissioner, it is said, addressed her mind to the relevant considerations and the complainant had not put before the Commissioner any to support the complaint. The Commissioner was assisted by Counsel appointed under the legislation and it was reasonable to assume that Counsel for the Commissioner dealt with the relevant evidence in the absence of any indication to the contrary in the material before her. It is said that no unfairness was displayed as a result of not calling Mr Logan, Mr Lim or the Managing Director.

Discussion

In order to determine the question whether there was procedural unfairness as a result of not calling witnesses, it is necessary to look at the nature and scope of the inquiry provided for in the RDA and the DDA.

In s 25A of the RDA, the Commission must hold an inquiry into each complaint or matter referred to it. Section 25E requires the Commission to give notice to a party to an inquiry and to afford each party reasonable opportunity to call or give evidence, examine or cross-examine witnesses and make submissions to the Commission. Subsection (2) of that section empowers the Commission to hold an inquiry in the absence of the party to whom notice has been given.

The parties to an inquiry are the complainant, the respondent and any person joined by the Commission as a party or given leave by the Commission (s 25F). A party may appear personally or be represented by a solicitor, counsel or an agent. Counsel assisting the Commission at an inquiry shall be subject to the control and direction of the Commission under s 25K. There is power in the Commission to dismiss frivolous, vexatious, misconceived or other complaints, which are lacking in substance (s 25X). The powers and functions of the Commission, after holding an inquiry, are set out in s 25Z and these include dismissing the complaint; or finding it substantiated. The Commission is empowered to make appropriate declarations as to rights or obligations and as to damages or variations of agreements. These powers are extremely wide and discretionary.

As noted earlier, the Commission is not bound by the rules of evidence and may inform itself on any matter and in such manner as it thinks fit and is required to conduct the inquiry with as little formality and with due expedition as the requirements of the Act and a proper consideration before the Commission permit.

Similar provisions are contained in the DDA.

In the present case, the inquiry called for a consideration of complaints made by Mr Soares concerning the decision to make him redundant. The allegations were that this decision had taken into account, or had been made because of, his race and or disabilities.

This must be seen in the broader context of the conduct of Bayer in implementing its general redundancy program.

The focus of the inquiry is the decision.

Two applications had been made to strike out the complaint but these were refused before and at the outset of the hearing. The refusal of these applications indicated that the Commissioner considered it necessary to review the evidence before making a substantive decision.

In my view, it was not necessary, as a matter of procedural fairness, to summons the actual persons who made the decision in the absence of evidence to support the complaints. There is no indication that they could give any further evidence which would assist the applicant's case before the Commission. Indeed, the draft statements of evidence of Mr Lim and Mr Logan furnished on 11 December 1995 indicated otherwise.

In Nagasinghe v Worthington (1994) 53 FCR 175, von Doussa J held that there was no error of law on the part of a Commissioner in declining to allow an applicant to summon additional members of the hospital's medical appointments committee in circumstances where it had obtained evidence from a representative of that committee. That case involved allegations of discrimination under the RDA. At 182 von Doussa J said:

"The function of the Inquiry Commissioner was not to review or to condemn procedures laid down by the Medical Centre for the selection of staff. The Inquiry Commissioner's function was limited to the question raised by a complaint under s 15 of the Racial Discrimination Act; that is, whether the failure of the applicant to obtain appointment (which the Inquiry Commissioner accepted was discriminatory in the sense that she did not, but two others of the four did, obtain appointment) was for a reason due to a race, colour or national or ethnic origin. And that was the only question."

The circumstances in that case are different from the present but they support the conclusion that it is not necessary to require evidence to be called from witnesses where the material gives no indication or reason to believe that they will support the applicant's case. As the Commissioner pointed out, the weight to be given to the evidence and material before her was within her discretion.

There is no suggestion that in the present case there was material before the Commission which warranted the Commissioner carrying out further investigation of the circumstances surrounding the decision to make Mr Soares' position redundant: cf Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169; Video v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 at 178; Luu v Renevier (1989) 91 ALR 39 at 50; Simons v Minister for Immigration and Ethnic Affairs (1995) 56 FCR 492.

In my view, the Commissioner's decision not to call the witnesses has not been shown to give rise to any procedural unfairness. It was open to her, on the material, to reach the decision to dismiss the complaints. The reasons for decision demonstrate a careful and considered appreciation of the evidence relevant to the complaints and a willingness to receive and consider all relevant evidence.

Conclusion

The application for review should be dismissed. In the circumstances, however, I make no order as to costs.