SOOMRO and THE ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY
[2015] WASAT 113
•24 SEPTEMBER 2015
SOOMRO and THE ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY [2015] WASAT 113
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 113 | |
| 12/10/2015 | |||
| EQUAL OPPORTUNITY ACT 1984 (WA) | |||
| Case No: | EOA:16/2015 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR P McNAB (SENIOR MEMBER) | 24/09/15 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application granted; proceeding dismissed as without jurisdiction, and otherwise lacking in substance and misconceived | ||
| B | |||
| PDF Version |
| Parties: | MAHFOOZ SOOMRO THE ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY |
Catchwords: | Discrimination Race and religious conviction Employment Victimisation Equal Opportunity Practice and procedure Complainant seeking position in university University established in State of Victoria Complainant residing in State of Western Australia All material events and transactions occurring in Victoria Application to strike out or dismiss claims Whether causative link established Whether Tribunal lacked jurisdiction Extent to which legislation has extraterritorial effect Application granted Complaint held to be misconceived or lacking in substance |
Legislation: | Equal Opportunity Act 1984 (WA), 3 4(1), s 36(1) State Administrative Tribunal Act 2004 (WA), s 47, s 47(1)(a), s 50 |
Case References: | Campbell v Smith [2005] TASADT 7 Laurent and Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165 Legal Practitioners Complaints Committee and Trowel [2009] WASAT 42 McDonald v ASP Ship Management Pty Ltd [2006] TASADT 2 Ristevska v Australian Olympic Committee Inc [1996] VADT 34 Tan v McArdle [2010] VCAT 248 |
Summary | The Royal Melbourne Institute of Technology University or RMIT University, applied to the Tribunal to strike out or dismiss certain claims of race and religious conviction discrimination made by the applicant, Dr Soomro, in relation to Dr Soomro's failure to obtain appointment to either of two Research Fellow positions in civil engineering with RMIT.,RMIT is established in the State of Victoria, where the two positions were to be located. Dr Soomro is domicile or resident in the State of Western Australia. RMIT submitted that if any discrimination occurred (which was denied) all material events and transaction occurred in Victoria, which was the appropriate forum to bring the proceedings. ,The Tribunal held that the Equal Opportunity Act 1984 (WA) did not have, in the circumstances, extraterritorial effect to authorise the bringing of claims by Dr Soomro against the Victorianbased RMIT. In any case, Dr Soomro had failed to show any causative link in relation to his complaint. That is, he had provided no evidence whatsoever that the relevant acts identified by him occurred on the ground of race leading to less favourable treatment of the applicant in the same circumstances (here, the appointment to either RMIT position) compared to a person of another race.,In any event, the evidence that Dr Soomro had provided was described as 'speculative' and 'fanciful', focusing as it did mainly on the international relations of two foreign countries (India and Pakistan) and generalised suspicions of alleged local Indian community ill will towards Dr Soomro.,Accordingly, RMIT's application was granted and the proceeding was dismissed as without jurisdiction, and otherwise lacking in substance and misconceived. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : SOOMRO and THE ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY [2015] WASAT 113 MEMBER : MR P McNAB (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 24 SEPTEMBER 2015 PUBLISHED : 12 OCTOBER 2015 FILE NO/S : EOA 16 of 2015 BETWEEN : MAHFOOZ SOOMRO
- Applicant
AND
THE ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY
Respondent
Catchwords:
Discrimination - Race and religious conviction - Employment - Victimisation - Equal Opportunity - Practice and procedure - Complainant seeking position in university - University established in State of Victoria - Complainant residing in State of Western Australia - All material events and transactions occurring in Victoria - Application to strike out or dismiss claims - Whether causative link established - Whether Tribunal lacked jurisdiction - Extent to which legislation has extraterritorial effect - Application granted - Complaint held to be misconceived or lacking in substance
Legislation:
Equal Opportunity Act 1984 (WA), 3 4(1), s 36(1)
State Administrative Tribunal Act 2004 (WA), s 47, s 47(1)(a), s 50
Result:
Application granted; proceeding dismissed as without jurisdiction, and otherwise lacking in substance and misconceived
Summary of Tribunal's decision:
The Royal Melbourne Institute of Technology University or RMIT University, applied to the Tribunal to strike out or dismiss certain claims of race and religious conviction discrimination made by the applicant, Dr Soomro, in relation to Dr Soomro's failure to obtain appointment to either of two Research Fellow positions in civil engineering with RMIT.
RMIT is established in the State of Victoria, where the two positions were to be located. Dr Soomro is domicile or resident in the State of Western Australia. RMIT submitted that if any discrimination occurred (which was denied) all material events and transaction occurred in Victoria, which was the appropriate forum to bring the proceedings.
The Tribunal held that the Equal Opportunity Act 1984 (WA) did not have, in the circumstances, extraterritorial effect to authorise the bringing of claims by Dr Soomro against the Victorianbased RMIT. In any case, Dr Soomro had failed to show any causative link in relation to his complaint. That is, he had provided no evidence whatsoever that the relevant acts identified by him occurred on the ground of race leading to less favourable treatment of the applicant in the same circumstances (here, the appointment to either RMIT position) compared to a person of another race.
In any event, the evidence that Dr Soomro had provided was described as 'speculative' and 'fanciful', focusing as it did mainly on the international relations of two foreign countries (India and Pakistan) and generalised suspicions of alleged local Indian community ill will towards Dr Soomro.
Accordingly, RMIT's application was granted and the proceeding was dismissed as without jurisdiction, and otherwise lacking in substance and misconceived.
Category: B
Representation:
Counsel:
Applicant : In Person
Respondent : Ms T Kingsley
Solicitors:
Applicant : N/A
Respondent : RMIT Legal Services Group
Case(s) referred to in decision(s):
Campbell v Smith [2005] TASADT 7
Laurent and Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165
Legal Practitioners Complaints Committee and Trowel [2009] WASAT 42
McDonald v ASP Ship Management Pty Ltd [2006] TASADT 2
Ristevska v Australian Olympic Committee Inc [1996] VADT 34
Tan v McArdle [2010] VCAT 248
Introduction
1 On 20 May 2015, the Tribunal ordered that a preliminary issue, as to whether the Tribunal had jurisdiction in this matter, be determined upon the documents. Accordingly, pursuant to orders of the Tribunal, written submissions were exchanged between the parties: those of the applicant Dr Mahfooz Soomro dated 8 June 2015, and those of the respondent, the Royal Melbourne Institute of Technology University or RMIT University (RMIT), dated 23 June 2015.
2 The Tribunal has decided, for the following reasons, that the proceedings are without jurisdiction, and otherwise lack substance or are misconceived and should be accordingly dismissed.
3 The Tribunal delivered oral reasons in the matter. What follows has been formally revised and edited from the transcript of reasons delivered by the Tribunal.
Background to the proceedings
4 On 21 April 2015, the Equal Opportunity Commission referred a complaint to the Tribunal that the Equal Opportunity Commissioner (Commissioner) had dismissed as 'lacking in substance'. The Commissioner said that 'no evidence [had been] submitted to substantiate the allegations made by the applicant'. The applicant's complaint under the Equal Opportunity Act 1984 (WA) (EO Act) was of race and religious conviction discrimination and victimisation (for apparently complaining about discrimination) in the area of employment. No relevant details of the alleged victimisation were supplied by the applicant.
5 The respondent was named as RMIT, which is based in Melbourne, in the State of Victoria.
6 The applicant, who is a resident of this State, applied twice for a Research Fellow academic position with RMIT (both positions were to be located in Melbourne), first in January2014 and then again in December 2014. RMIT declined to appoint the applicant to either position.
7 Dr Soomro holds a PhD in chemical engineering from a United Kingdom university and has worked in, amongst other places, industry (both here and abroad) and at Curtin University in this State.
8 Dr Soomro alleged that he had been directly discriminated against because RMIT's Deputy Head, Civil Engineering, in the School of Civil, Environmental and Chemical Engineering (Dr Sujeeta Setunge) was allegedly of Indian origin, heritage or background and the applicant was of Pakistani - and presumably Muslim - origin, heritage or background. The allegation was to the effect that RMIT, through its agents, did not appoint DrSoomro to either position because of his race or religious conviction. Race is defined under the EO Act so as to include the 'colour, descent, ethnic or national origin or nationality' of the complainant: see EO Act, s 4(1).
9 In fact, insofar as Dr Setunge's origin, heritage or background is relevant to these proceedings, the unchallenged truth of the matter is that she is of SriLankan descent and is not of Indian descent as the applicant had mistakenly believed. Further, to the extent that it is relevant, the successful incumbent of one of the positions was a Muslim applicant.
Applicant's submissions
10 The applicant, in his written submissions, filed extensive international news reports on the treatment of religious minorities, including Christians, in India. The reports extend to suspicions of Indian intelligence agencies fomenting instability in Pakistan. Reference is also made to various incidents suggesting Indian community ill will or discrimination directed to Dr Soomro occurring here in Perth. Mention is also briefly made of Dr Soomro's troubles some years ago at Curtin University.
11 Dr Soomro maintains that he has the necessary skills, experience and publications which entitle him to either of the jobs which were advertised and thus he, in effect, contends that his failure to be appointed arose because of discrimination, and that this was the only basis for the nonappointment.
Respondent's submissions
12 RMIT maintains that the two research fellow positions were slightly different in role or function. In both cases, RMIT submits that the sole reason for Dr Soomro being unsuccessful in his pursuit of the position was either that he had a lower ranking of relevant publications compared with those other candidates who were shortlisted (in respect of the February2014 application), or that he had a lack of demonstrated skills, experience, qualifications or publications (in respect of the December2014 position).
13 Further, RMIT contends that:
a) the Tribunal does not have jurisdiction to hear the proceedings and the proceedings should be dismissed;
b) the matter should be dismissed or struck out as misconceived or lacking in substance; and
c) if not, RMIT reserved the right to make further submissions on the substance of the application and also reserved its position in respect of costs.
14 On the question of jurisdiction, RMIT contends that if there were any discrimination or other unlawful behaviour - which is denied - then all relevant or material transactions and events (and the main witnesses to them) occurred in and in relation to the State of Victoria and in relation to its laws. Thus, it is submitted that the more appropriate forum to bring any claim, if any, is in the State of Victoria.
15 Now, since the capacity to strike out proceedings or dismiss them, or to transfer them to a more convenient forum (under s 50 of the State Administrative Tribunal Act 2004 (WA) (SAT Act)) is limited to a judicial member of the Tribunal (which I am not), it would not be possible to take that course today.
16 RMIT's second argument relates to the jurisdiction of the Tribunal to entertain a claim based upon extraterritoriality. In other words, RMIT submits that the EO Act has no application to relevant things, events, transactions and circumstances wholly occurring outside of the State of Western Australia.
17 There is, I think, much force in this submission.
Extraterritoriality
18 In Legal Practitioners Complaints Committee and Trowel [2009] WASAT 42, the Tribunal noted that the relevant Western Australian legislation regulating a legal practitioner's conduct was directed to admission and the right to practise in this State, even if those matters could be affected by a practitioner's conduct (as part of the representation of a person) which had occurred overseas.
19 The Tribunal's own researches have revealed Ristevska v Australian Olympic Committee Inc [1996] VADT 34 (Ristevska). Although a broad view was taken of the equivalent Victorian legislation in Ristevska, where allegedly discriminatory acts occurred in another State, ultimately, it appears, jurisdiction was exercised there because both parties were legal entities residing in or incorporated in the State of Victoria.
20 In Ristevska, the Victorian Tribunal said:
In our view, Parliament intended that a victim of discrimination could seek redress under the [Victorian] Act if all or some of the elements of discrimination are within Victoria but not if none of those elements is within Victoria.
21 Ristevska was applied by the Victorian Civil and Administrative Tribunal in Tan v McArdle [2010] VCAT 248 to dismiss a claim of victimisation where the relevant detriment occurred either in Tasmania or New South Wales.
22 The Tasmanian Tribunal has taken the view that their equivalent equal opportunity legislation does not have extra-territorial effect: see Campbell v Smith [2005] TASADT 7 and McDonald v ASP Ship Management Pty Ltd [2006]TASADT2. In the latter Tasmanian case, Ristevska was distinguished on the basis that part of the conduct complained of in that case occurred in another State and part of the conduct occurred in Victoria.
23 In Dr Soomro's application, every material element of the alleged discriminatory conduct or treatment occurred solely outside of Western Australia.
24 In my view, on its true construction, the EO Act,read with the common law presumption against extraterritorial effect (see DC Pearce and RS Geddes, Statutory Interpretation in Australia (7th ed, 2011) at [5.9]), should be read as not extending to the case where the sole connection with an allegation of either discrimination or victimisation is, in effect, the domicile or residence in this State of the complainant.
Disposition
25 On this ground, as the Tribunal lacks jurisdiction, the complaint should be dismissed as misconceived and lacking in substance: see s 47(1)(a) of the SAT Act and the references below to Laurent and Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165 (Laurent).
26 In any case, the complaint should be dismissed as misconceived or lacking in substance on its merits. The legal meaning of these terms, the application of s 47 of the SAT Act and the relevant test to be applied in such a case are all discussed in Laurent at [19] [23], a decision of Pritchard DCJ, as her Honour then was.
27 That test requires the decision-maker to assume that the relevant factual assertions made by the applicant are true. Here, that is somewhat problematic, as the applicant in effect concedes - by not challenging any of RMIT's key facts in reply - that some of his assertions (apparently critical to his case) are incorrect, such as the ethnic origin of the agent of the respondent, Dr Setunge.
28 In any event, the facts asserted by the applicant do not show any causative link whatever to the conduct complained of. That is, there are no relevant acts or omissions identified occurring on the ground of race leading to less favourable treatment of the applicant in the same circumstances (here, the appointment to either RMIT position) compared to a person of another race (see EO Act, s 36(1)).
29 This is hardly surprising as no material evidence accompanies the applicant's assertions, assertions which are, in any case, with respect, speculative, if not completely fanciful, focusing as they do in large part on the international relations of two foreign countries and generalised suspicions of alleged local Indian community ill will towards Dr Soomro.
30 In any case, the Tribunal has no general jurisdiction to review the academic recruitment practices of any institution or their judgment as regards any particular academic appointment. These issues are wholly or mainly for the internal governance of the institution concerned in this or in any other jurisdiction, except of course if evidence of relevant discrimination emerges.
31 None whatsoever has emerged here. The applicant's claims of race and religious conviction discrimination and victimisation are so obviously untenable and manifestly groundless that they warrant summary dismissal by the Tribunal.
Orders
32 For these reasons the Tribunal makes the following orders:
1. The respondent's application under s 47(1) of the State Administrative Tribunal Act 2004 (WA) is granted.
2. The proceedings are without jurisdiction, and otherwise lack substance or are misconceived and are accordingly dismissed.
I certify that this and the preceding [32] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, SENIOR MEMBER
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