Ugur v HREOC
[2007] FMCA 2000
•21 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| UGUR v HREOC & ANOR | [2007] FMCA 2000 |
| ADMINISTRATIVE LAW – Notice of termination by Human Rights and Equal Opportunities Commission – finding of lack of substance in human rights complaint – conclusion open on the evidence – no error in understanding of ambit of complaint – no procedural error in failure to allow more time for evidence – application dismissed. |
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.5, 16
Federal Court Rules (Cth), O.62
Federal Magistrates Court Rules 2001 (Cth), r.21.02(2)(c)
Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss.20(2)(c)(ii), 46PH(1)(c), 46PH(2), 46PO, Pt.II Div.3, Pt.IIB
International Covenant on Civil and Political Rights, Art.7
Racial Discrimination Act 1975 (Cth)
Peacock v Human Rights and Equal Opportunity Commission [2005] FCAFC 45
Travers v State of New South Wales [2000] FCA 1565
| Applicant: | HACI EMIN ORHAN UGUR |
| First Respondent: | HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION |
| Second Respondent: | THE COMMONWEALTH OF AUSTRALIA |
| File Number: | SYG 2104 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 21 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 21 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms S Bangash |
| Solicitors for the First Respondent: | Human Rights and Equal Opportunity Commission |
| Counsel for the Second Respondent: | Ms D Watson |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
On its application, the Commonwealth of Australia is included as second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs as agreed or taxed under Federal Court Rules O.62. Pursuant to r.21.02(2)(c), refer those costs for taxation by a Registrar under O.62.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2104 of 2007
| HACI EMIN ORHAN UGUR |
Applicant
And
| HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION |
First Respondent
| THE COMMONWEALTH OF AUSTRALIA |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Mr Ugur is held at the Villawood Immigration Detention Centre, and has been there for some time. He suffers from tooth abscesses, and at least one psychiatrist has diagnosed a delusional disorder. He is concerned about his situation at the detention centre, and has made a series of inquiries and complaints to administrative investigatory bodies and complaints agencies. This includes correspondence with the Human Rights and Equal Opportunities Commission (“HREOC”) prior to 2006 and during 2005, but the details of that correspondence are obscure on the evidence before me. There are also references in the material to his pursuing freedom of information applications in relation to the Department of Immigration, and to his complaints to the Ombudsman. Those proceedings are also obscure on the material before me.
On 1 August 2006, HREOC received a letter from Mr Ugur dated 31 July 2006, which it treated as a complaint made under Part IIB of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) in relation to unlawful discrimination, and also as raising claims of acts inconsistent with human rights as defined in that Act for the purposes of Division 3 of Part II.
Mr Ugur’s written complaint was understood to be founded upon an allegation that he had been continually given “electro shocks” by the Department of Immigration and GSL, during his detention at Villawood. He characterised their actions as torture, discrimination, continual harassment and assaults, and punishment for complaining to external agencies. He claimed to have been constantly suffering pain and that his health was badly affected. He also claimed that the mistreatment had occurred because he was being used illegally as “an experiment in the detention centre”.
He forwarded a very large number of documents to HREOC in support of his complaint. After its despatch and before the end of 2006, he had forwarded copies of hundreds of “detainee request forms”, which he had lodged repeatedly on many days at Villawood, in which he complained of pains which he attributed to electric shock treatment.
Because he did not think his complaint was being dealt with, he lodged a further complaint dealing with the same matter on around 8 November 2006, claiming that he was still being mistreated at the detention centre.
On 18 September 2006, the Department of Immigration forwarded to HREOC some information concerning Mr Ugur, which indicated that they were considering how his medical conditions would be treated. On 12 December 2006, the Department of Immigration responded formally to the complaint of Mr Ugur, and to a formal request of HREOC for information. HREOC requested information whether Mr Ugur had, in fact, received electric shock treatment, and if so the reasons for that treatment and when it occurred. In response, the Director of the Department’s “Detention Review and Complaint Handling Section” advised HREOC that Mr Ugur “has never received electric shock treatment”. A letter from the relevant medical director was forwarded which confirmed this fact, and indicated that Mr Ugur had “consistently refused assessment or treatment” for possible mental illness.
In March 2007 HREOC sought, and received, a response from GSL in relation to Mr Ugur’s complaint. GSL advised that “the health of persons in detention is no longer the direct responsibility of GSL”, but its Director of Public Affairs said: “I can assert that at no time has Mr Ugur received electric shock treatment while in the care of GSL. We have nothing to add to the advice that you have received from DIAC”.
The correspondence to HREOC referred to the possibility that the Guardianship Board of New South Wales was involved in Mr Ugur’s affairs.
By letter dated 22 March 2007, the investigating officer at HREOC wrote to Mr Ugur in relation to his complaint, noting that it raised an issue as to alleged breaches of Article 7 of the International Covenant on Civil and Political Rights in relation to torture or cruel, inhumane, or degrading treatment or punishment. She noted the response from the Department of Immigration, and said to the applicant:
On the basis of the information currently before the Commission, it appears that acts about which you have complained are lacking in substance. Please provide any further information or evidence in support of your complaint within fourteen (14) days of the date of this letter. If no further information is received, the President or his Delegate may make a decision on the basis of the information currently before the Commission and may decide to decline to continue to inquire into your complaint alleging a breach of article 7 of the ICCPR on the basis that the complaint is lacking in substance.
She also indicated that the applicant’s complaint about breaches of the Racial Discrimination Act 1975 (Cth) could also be similarly terminated.
Mr Ugur replied in a letter of 8 April 2007, enclosing 58 pages of attachments. His letter said:
I need time to provide information or evidence in support of my complaint against the DIAC (DIMA), GSL and IHMS.
I have already sent approximately 4,000 pages of documents to support my complaint to your office. There are substantial grounds to prove beyond reasonable doubt that my human rights had been breached whilst in detention. I request you to review my documents which I had provided to your office.
I am waiting from documents contained in FOI: …
His letter then referred to an application to the Administrative Appeals Tribunal (“AAT”), and attached the terms of a decision made by the Tribunal on 4 April 2007. The background to that matter is not clear on the material before me. However, from the terms of the Tribunal’s decision, it appears that Mr Ugur had been litigating in the AAT the adequacy of the Minister for Immigration’s responses to his Freedom of Information requests and claims to exemptions. The decision noted an agreement that the Minister would undertake further searches for documents identified by Mr Ugur, and would treat a Freedom of Information request which he had made on 10 January 2007 as “a global request, which means that all material relating to the Applicant will be searched”. The decision noted that the Minister had undertaken “to comply with terms of this agreement within 8 weeks of [the] Tribunal’s decision”.
None of the material forwarded to HREOC provided any substance to Mr Ugur’s complaint of electro shock treatment.
No party has put forward before me clear evidence as to how HREOC responded to Mr Ugur’s letter of 8 April 2007. He told me in unsworn statements today, that he spoke to the investigating officer on the phone, and that she agreed to wait for the eight week period specified in the AAT decision for documents to be provided by the Minister. Mr Ugur told me that no promise had been given that HREOC would wait a longer period before making a decision on his complaint. There is no evidence before me suggesting that any representation to that effect had been made.
The evidence before me is that, in fact, the applicant did not forward any further material to HREOC, before it made a decision in relation to the complaint. The decision was notified to Mr Ugur in a letter dated 8 June 2007, containing reasons for a formal notice of termination issued under s.46PH(2) of the HREOC Act. This terminated the applicant’s complaint pursuant to s.46PH(1)(c), on the ground that “the President is satisfied that the complaint was … lacking in substance”. The reasons given for the notice of termination also referred to a similar power to terminate an investigation into a complaint under Part 2 Division 3, which is conferred by s.20(2)(c)(ii) in the same terms.
The letter described Mr Ugur’s complaint as follows:
Your Complaint
You state that you are currently in detention at Villawood Immigration Detention Centre. You allege that you are being subjected to electric shock treatment by the Department and GSL and that this is causing headaches, dizziness and pain in your teeth. You allege that this constitutes a breach of your human rights, and in particular, a breach of article 7 of the International Covenant on Civil and Political Rights (ICCPR). You also state that you believe that you are being subjected to this treatment because of your race or national origin.
The letter referred to the responses of the Department of Immigration and GSL. It referred to Mr Ugur’s allegation that there had been a breach of Article 7, and his allegation that he had been subjected to unlawful discrimination under the Racial Discrimination Act. It identified all the documents that had been provided in support of the complaint, and concluded:
I appreciate your allegations that you are in pain and that this is causing much distress for you. However, the key issue for me to consider is whether there is evidence to suggest that you are in fact being given electric shock treatment. Both the Department and GSL have advised that you are not being given electric shock treatment and there is no evidence before the Commission, apart from your allegations, to suggest that you are being given this treatment. I also note that you have been provided with dental care regarding abscesses in your teeth.
I am of the view that there is insufficient evidence before me to support your claim that you are being given electric shock treatment. I am therefore of the opinion that there is insufficient evidence to suggest that the Department or GSL have breached article 7 of the ICCPR. There is also insufficient evidence to suggest that you are being given electric shock treatment because of your race or national origin. As such, I have decided to decline to continue to inquire into your complaint alleging a breach of human rights, pursuant to section 20(2)(c)(ii) of the HREOC Act on the basis that I am of the opinion that the complaint is lacking in substance. I have also decided to terminate your complaint of discrimination under the RDA pursuant to section 46PH(1)(c) of the HREOC Act on the basis that I am satisfied that the complaint is lacking in substance.
The letter advised the applicant that he could apply to the Federal Court or this Court to hear the allegations under the HREOC Act, or could apply under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the AD(JR) Act”) for the Court to review the legal correctness of the HREOC decision.
On 9 July 2007, Mr Ugur lodged an application in this Court which appeared to invoke its jurisdiction under s.46PO of the HREOC Act, since it used the forms for the making of such an application. The orders he sought were:
1.That DIAC provides me with all documentation which I can use to support my case. These documents have been ordered by AAT on 4 April, 2007.
2.That the court refer the matter back to HREOC for further investigation.
The application was framed with HREOC as the only respondent. It was listed at a first court date before me on 3 August 2007, when the nature of the application brought to this Court was discussed with Mr Ugur. He clarified that the relief he sought was, indeed, against HREOC, and that he was not seeking relief against other respondents under s.46PO of the HREOC Act. He consented to the dismissal of the application in that respect. I made directions allowing him to file an amended application invoking the jurisdiction of the Court under the AD(JR) Act, and for him to file evidence in support. He has taken these steps, and I shall address below the grounds upon which he argues that HREOC’s decision should be set aside and the matter sent back to it.
HREOC appeared at the first court date, and has subsequently filed an affidavit which attaches the key parts of the correspondence from its file. It has appeared today, but did not take an active part in the proceedings. Rather, a legal representative of the Commonwealth of Australia appeared and applied to be joined as a respondent. She referred me to opinions given in the Full Court in Peacock v Human Rights and Equal Opportunity Commission [2005] FCAFC 45, suggesting that it would be more appropriate for the Commonwealth to be the active respondent in a matter such as the present. I acceded to the application, and have been assisted by the Commonwealth’s submissions today.
On 3 August 2007, I set down Mr Ugur’s application for final hearing today. Because I had been informed from the bar table that it was possible that Mr Ugur was the subject of a guardianship order, I directed that HREOC should serve a copy of my directions and of the applicant’s application on the Public Guardian, to allow that body an opportunity to apply to the Court to intervene, if that was thought necessary or appropriate. No such application has been made, and Mr Ugur has not been hampered in his presentation of his case today by any guardianship order, if it exists. He told me that there are proceedings on foot next week in the Supreme Court in relation to his guardianship, and he sought an adjournment of today’s case until that proceeding was completed. He made clear that he was opposing the appointment of any guardian, and that he opposed any involvement of a guardian in his present case. In those circumstances, and in the absence of evidence establishing that, in fact, Mr Ugur is subject to guardianship or that he suffers an incapacity rendering him incompetent to make the present application, I considered it appropriate to proceed with the hearing listed today.
I also declined Mr Ugur’s application for an adjournment so that he could get more legal assistance. I considered that he had been given ample opportunity to gain legal assistance before today.
At today’s hearing, I heard Mr Ugur’s submissions in support of the grounds of his AD(JR) application, as set out in his amended application filed on 28 September 2007.
This contains a number of grounds for seeking the remission of the matter to HREOC which are plainly outside the scope of the grounds which can be argued under s.5 of the AD(JR) Act in support of orders under s.16. Thus, he referred to his opposition to any guardianship, to his outstanding complaints and disputes concerning the Ombudsman investigations, to outstanding issues with the Department of Immigration in relation to his Freedom of Information requests, and to his complaints about three of the directions I made on 3 August 2007. All of these parts of his amended application are plainly irrelevant to the grounds for relief provided under the AD(JR) Act, and it is unnecessary for me to address them further.
I isolated from Mr Ugur’s amended application and submissions three issues, which I considered required specific attention. They were:
i)whether HREOC too narrowly defined the matter which was the subject of Mr Ugur’s 2006 complaint, when terminating that complaint.
ii)Whether, HREOC failed to address in the course of its consideration of Mr Ugur’s 2006 complaint, his earlier correspondence with HREOC raising concerns which Mr Ugur suggests have never been finalised in any formal way.
iii)Whether HREOC’s proceedings on the 2006 complaint were attended with procedural error or failure of procedural fairness, by reason of its failure to allow more time to Mr Ugur to present more documents, as he had foreshadowed in his letter of 8 April 2007 which I have referred to above.
In relation to the first issue, I have carefully considered the wording of Mr Ugur’s original complaint to HREOC, in the light of his subsequent complaints and of all the material which he presented to HREOC. I accept that a narrow or legalistic approach to the identification of the ambit of a complaint would be inappropriate and legally impermissible on the part of HREOC, for the same reasons as have been pointed out in relation to this Court’s jurisdiction under s.46PO (cf. Travers v State of New South Wales [2000] FCA 1565 at [8]).
However, HREOC has a duty to apply its resources sensibly, and to give focus to a complaint that appears global, unfocused and never ending. In the present case, I consider that HREOC’s interpretation of Mr Ugur’s concerns raised by his 2006 letter as being founded upon his belief that he was being tortured with electro shock treatment, was an appropriate analysis of his complaint. I am not persuaded that, as a matter of law, it was not open to HREOC to take that view.
It was, therefore, in my opinion relevant and permissible for the President’s delegate to conclude that Mr Ugur’s whole complaint was lacking in substance, once she was satisfied on appropriate evidence that it had no factual foundation whatsoever. I therefore do not accept that HREOC did not investigate his 2006 complaint according to law, because it misread the complaint and confined its ambit impermissibly.
In relation to the second issue, Mr Ugur’s evidence presented to the Court leaves obscure his previous communications with HREOC. It is possible on the evidence before me that there are outstanding complaints, which require further investigation or formal determination by HREOC. This a matter upon which I can make no finding.
It is clear, however, that the decision of HREOC which is brought for review in this Court under the AD(JR) Act is a decision which addressed the complaint made by Mr Ugur on 1 August 2006. I am not satisfied that there is any other complaint which was required to be addressed by HREOC at the same time as that complaint. I therefore do not consider that this concern by Mr Ugur has established a ground for me to set aside the notice of termination, nor to give any further orders to HREOC.
In relation to the third issue, I am not persuaded that the procedures followed by HREOC when faced by Mr Ugur’s letter of 8 April 2007, were procedures which were not open to it under the HREOC Act or involved a failure of procedural fairness.
It will be recalled that on 22 March 2007 Mr Ugur was given 14 days to respond to a warning that HREOC was considering terminating the complaint on the ground of lack of substance. Even assuming the truth of Mr Ugur’s statements to me today that Ms Davis agreed to allow more time for his Freedom of Information procedures to be pursued against the Minister for Immigration, he was allowed the eight week period which he requested. I am not persuaded that there was any obligation on HREOC to wait longer for evidence giving substance to Mr Ugur’s complaint. I note that Mr Ugur does not claim yet to have obtained such evidence.
If, indeed, ultimately Mr Ugur obtains material which might give substance to his complaints, it will always be open to him to make fresh complaints to HREOC. I do not consider that procedural fairness, or any other obligation on HREOC, required it to keep open the complaint he made in August 2006 indefinitely, until he had exhausted all the processes of Freedom of Information which he was pursuing against the Department of Immigration.
For the above reasons, I am not persuaded that any of Mr Ugur’s concerns concerning HREOC’s termination of his complaint have been made out, so as to allow this Court to give orders under s.16 of the AD(JR) Act in relation to the matter. I have considered all of the other points made by Mr Ugur in his papers and submissions to me, and I consider that the appropriate order of the Court is to dismiss the application.
I certify that the preceding thirty‑four (34) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 5 December 2007
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