State of Queensland v Ali

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
Mohammad v State of Queensland (2006) QATD 21

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.

The case of State of Queensland v Ali concerns an appeal for leave to challenge a decision by the Anti-Discrimination Tribunal. The Tribunal found that the applicant had discriminated against the respondent on the basis of disability. The appeal was heard in the Queensland Court of Appeal. The applicant sought leave to appeal the Tribunal's decision, arguing that it had erred in its findings of fact and law, and that the decision violated the applicant's right to freedom of religion.

The legal issues before the court were whether the Tribunal had erred in its findings of fact and law, and whether the decision violated the applicant's right to freedom of religion. The court noted that the Tribunal had made findings of fact based on evidence presented before it, and that those findings were not shown to be implausible or illogical. The court also noted that the Tribunal had considered the applicant's right to freedom of religion in its decision, and had balanced that right against the respondent's right not to be discriminated against on the basis of disability. The court found that the Tribunal had not erred in its decision, and that the decision did not violate the applicant's right to freedom of religion.

The court held that the applicant had not demonstrated that the Tribunal's decision was wrong, or that it involved a significant error of law. The court noted that the Tribunal had made findings of fact based on evidence presented before it, and that those findings were not shown to be implausible or illogical. The court also noted that the Tribunal had considered the applicant's right to freedom of religion in its decision, and had balanced that right against the respondent's right not to be discriminated against on the basis of disability. The court found that the applicant had not demonstrated that the Tribunal's decision involved a significant error of law, and that there were no other compelling reasons to grant leave to appeal. The court therefore dismissed the application for leave to appeal.

The court did not make any orders in relation to the application for leave to appeal. The decision of the Tribunal stands, and the applicant is not permitted to appeal the decision.

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