State of Queensland v Ali
[2014] QCATA 126
•21 May 2014
| CITATION: | State of Queensland v Ali [2014] QCATA 126 |
| PARTIES: | State of Queensland (Applicant/Appellant) |
| v | |
| Raymond Akhtar Ali (Respondent) |
| APPLICATION NUMBER: | APL377-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon K Cullinane AM QC, Judicial Member |
| DELIVERED ON: | 21 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDER MADE: | State of Queensland’s application for leave is refused. |
| CATCHWORDS: | APPEALS – LEAVE TO APPEAL – HUMAN RIGHTS – DISCRIMINATION – TRIBUNALS, COMMISSIONS AND OTHER AUTHORITIES – where Tribunal found applicant directly and indirectly discriminated against respondent – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142(3)(a)(i) Carey v Cairns Regional Council [2011] QCATA 313 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
State of Queensland seeks leave to appeal against the determination of the Tribunal of 6 August 2013 ordering State of Queensland to pay to Mr Ali compensation of $3,000 pursuant to the Anti-Discrimination Act 1991 (Qld) (‘the Act’).
The principles governing the grant of leave is found in cases such as Carey v Cairns Regional Council.[1] Some particular reason must be shown for the grant of leave.
[1][2011] QCATA 313.
In this case, leave is required because the appeal is on a question of mixed law and fact.[2]
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 142(3)(b).
These proceedings arise out of the imprisonment of Mr Ali for the offence of murder at the Wolston Correctional Centre (‘WCC’) and subsequently from 22 September 2008 at the Maryborough Correctional Centre (‘MCC’).
Mr Ali alleged that he had been discriminated against in a number of respects. He failed in all but three.
The first of these arose out of events which occurred at the time of transfer. The findings on this matter are set out at [80] – [88] of the Tribunal’s reasons.
The Applicant challenges this finding on both factual and legal bases.
So far as the former is concerned the Tribunal accepted the respondent’s evidence that he was told by medical staff that halal meals were not available. In fact he was provided with vegetarian meals until 23 January 2009.
The Tribunal considered the contents of the special diet request form dated 24 September 2008 in which the words “vegetarian” “lieu moslem halal” as being of significance in determining what had occurred at the time of the respondent’s reception. In my view on the evidence before it, the Tribunal’s finding that the respondent requested halal meals and was told they were not available was open to it to make. The finding in the light of the evidence on the subject is in fact unsurprising. The finding was that the request was not recorded in the cultural/religious part of the form and this resulted in the halal diet not being provided. The result in turn was that because of his religious beliefs Mr Ali had been forced to eat a vegetarian diet.
The applicant contends that there were errors of law in the finding that the applicant imposed a term. It also contends that as the provision of a vegetarian diet was imposed by error or because of a misunderstanding the finding of discrimination was not open.
I reject these arguments. I accept the Tribunal’s analysis of the legal position at [86], [87] and [88] of the findings. The fact that the discrimination may have occurred because there was an error or misunderstanding within the applicant’s system is no answer to the claim. The findings of both direct and indirect discrimination were justified.
I agree that in relation to the former the matter bears a strong resemblance to Mohammad v State of Queensland.[3]
[3](2006) QATD 21.
The second finding relates to the provision of food which was not halal after 22 January 2009. This food was in the form of pies, dim sims and pasties provided to the prison population generally. The respondent complained about this but there was no change. Again there seems to have been some miscommunication within the system. However the finding of indirect discrimination was open. It is no answer that halal food could have been supplied but was not. That the failure to supply it was the result of some default in the system does not assist the applicant.
The final incident concerns the supply of a ham sandwich on 6 May 2009.
This ground involves a challenge to Mr Ali’s account. The Tribunal accepted the evidence of the respondent. This finding was plainly open on evidence in the absence of evidence to the contrary.
There is a challenge to the amount of compensation awarded. This is an area in which a wide discretion must be allowed to the assessing tribunal. Whilst there was no suggestion of any lasting effect on the respondent’s health the nature of the discrimination cannot be dismissed lightly. I am not persuaded that the amount awarded requires the intervention of this Appeal Tribunal.
I would refuse leave to appeal as the matter largely turns on its own facts and does not otherwise raise any matter which warrants the grant of leave.
Leave to appeal refused.
With the making of this order, the stay made on 9 September 2013 cease to have effect from the date of this Order.
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