Pedraza v Macquarie University [2021] NSWCATAD 233

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Pedraza v Macquarie University [2021] NSWCATAD 233 Hearing dates: 7 July 2021 Date of orders: 12 August 2021 Decision date: 12 August 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: C Mulvey, Senior Member Decision: Leave for the complaint against Macquarie University to proceed is refused. Catchwords: HUMAN RIGHTS — equal opportunity — whether leave required for complaint to proceed — principles applying to grant of leave Legislation Cited: Anti-Discrimination Act 1977 (NSW) Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Jones & Anor v Ekermawi [2009] NSWCA 388 Category: Principal judgment Parties: Juan Pedraza (Applicant) Macquarie University (Respondent) Representation: Solicitors: Applicant (Self-Represented) Bartier Perry Solicitors (Respondent) File Number(s): 2021/00155736 Publication restriction: None

REASONS FOR DECISION 1. Mr Juan Pedraza is Chilian who migrated to Australia in December 2011. Mr Pedraza is a fully registered Psychologist in Chile and Australia. 2. He enrolled in a Master of Neuropsychology course at Macquarie University between 2017 and 2018. In semester two of 2018, Mr Pedraza failed two units in that course. He contends that he was not informed he could be excluded from the course following a failure. In about 2019, Mr Pedraza was excluded from the course. 3. Mr Pedraza contends the basis upon which he failed the second subject of his course was unfair and discriminatory as he was forced to sit a pass-out (practical exam) designed only for first language English speakers to administer. He cites the reason for his failure as him not have a required minimum of 12 years of education in English. Despite advising the University of this prior to completing the pass-out, no alternative was provided. Mr Pedraza in his complaint alleges that the test manual is very precise indicating as the main requirement a minimum of 12 years of education in English. 4. In semester one of the course and while completing a practical exam in neuropsychology, the supervisor is alleged to have indicated to Mr Pedraza that he needed to practice his Australian English. He says that his performance during this exam was very good and is a reason why he completed the unit. 5. During the course Mr Pedraza alleges different class lecturers mocked his pronunciation when he answered some questions. He spent many hours trying to learn "Aussie" pronunciation without much success. Despite the class allegedly being informed that they needed to learn words from the Macquarie Dictionary, Mr Pedraza said he was not aware that there was another language or that he needed to read a new dictionary and learn how to pronounce words in English to be a neuropsychologist. 6. Mr Pedraza was informed by the University that his exclusion was permanent and he could not study the same coursework again. 7. In November 2020, Mr Pedraza lodged a complaint with the President of the Anti-Discrimination Board (respectively, 'the President' and 'the Board') alleging the matters in paragraphs [2]-[6] above. 8. In about February 2021, following the Board advising Macquarie University ('the University') of the complaint, the following response was received. 9. Mr Pedraza commenced study in the master of clinical neuropsychology (the Program) in session 1 of 2017. Between session 2 of 2017 and session 2 of 2018, he failed 3 coursework units. 10. The coursework rules which were in effect in 2018 state, if a student records 2 fail grades, or fails the equivalent of 8 credit points, in a postgraduate-level clinical professional program, they may be indefinitely excluded from further enrolment in that program. 11. The university on 14 December 2018, notified Mr Pedraza he was excluded from further enrolment in the program in accordance with the abovementioned rules. 12. Despite Mr Pedraza appealing these decisions, he was unsuccessful in his grade and exclusion appeal applications. 13. Psychological Assessment II is a mandatory unit for the program. Mr Pedraza failed this unit. The unit requires students to submit 2 essays (each with a weighting of 40%) and complete a pass-out test (with a weighting of 20%). 14. Mr Pedraza received a total of 36 marks for the 2 essays and 10 marks for the practical test, providing him with an overall mark of 46 out of 100. 15. To complete the course graduates of the program are expected to be competent in the administration of 3 neuropsychological assessments so that they can assess the impact of neurological injury in English speaking patients. 16. There is no requirement for students to have a minimum of 12 years of education in English as alleged by Mr Pedraza. Equally, the University says there is no requirement to have a minimum number of years of education in the English language to successfully complete the practical test. The test can be successfully completed by a student irrespective of their first language. 17. The University says that the requirement for Mr Pedraza to undertake the pass-out test was reasonable having regard to the circumstances of the matter. 18. In relation to the allegations that Mr Pedraza was told that he should 'practice his Australian English' and that lecturers 'mocked' his pronunciation is unable to be responded to due to a lack of specificity of detail concerning the allegations. 19. The President declined the complaint of race discrimination in education under s 17 of the Anti-Discrimination Act 1977 (NSW) (the Act) as Mr Pedraza's complaint is lacking in substance (s 92(1)(a)(i) of the Act). 20. At Mr Pedraza's request on 17 May 2021, the President referred the complaint to the New South Wales Civil and Administrative Tribunal (NCAT) as required by s 93A of the Act. 21. Because the President has exercised the discretion to decline the complaint, Mr Pedraza cannot proceed without leave of the Tribunal: s 96(1) of the Act. Mr Pedraza urges the Tribunal to grant leave. Macquarie University, on the other hand, supports the findings made by the President and opposes leave being granted. 22. For the reasons that follow, I have decided to refuse leave for Mr Pedraza to proceed against the University.