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. Statutory framework and principles governing the grant of leave 1. Where the President decides to accept a complaint under s 89B, he or she must investigate that complaint: s 90(1) of the Act. If at any stage during the investigation of a complaint, the President is satisfied that it is lacking in substance, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint (s 92(1)(a)(i)). It is this decision which I have jurisdiction to review. 2. Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so: s 93A of the Act. 3. Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act. 4. Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25] (Ekermawi). That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60]. Background facts 1. Mr Pedraza relied upon his application and initially sought an adjournment to be able to file a number of text messages which were not before the Tribunal. The application for an adjournment was opposed. I refused the application for an adjournment and gave leave to Mr Pedraza to send the text messages to the Registry. I made directions for further submissions if required. The text messages and further submissions were received. I have taken into consideration those matters together with the documents filed by Mr Pedraza in the application. 2. Mr Pedraza contends the pass-out test was conducted for no reason. He asserts the University treated him differently because it did not appreciate his background. Mr Pedraza submits that he was told he failed the course because he did not pass pronunciation of the English language in terms as set out above. 3. The University submits that the case against it is not one that is obviously meritorious. The actions taken by the University were not because of race, but rather because Mr Pedraza failed to pass the assessments in accordance with the course requirements. The University contends that Mr Pedraza has failed to provide evidence of a causal link between his race and the alleged unfavourable treatment in accordance with the requirements of the Act. It is contended that there needs to be more than a mere belief to be successful in his claim. The University contends that there is not a wide-ranging inquiry as to whether the outcome is fair, or if the exclusion is fair when the exclusion is part of the course rules. There must be activity of discrimination for him to be successful in his claim. 4. Simply put, the University says that this complaint is about 1 assessment worth 20 marks in one unit. That was the pass-out test. Mr Pedraza alleges you required 12 years of English to complete that pass-out test and to be proficient in pronouncing words in Australian English. However, the unit required Mr Pedraza to complete 2 essays. He failed those essays and achieved a score of 38 out of 80 marks. This is a significant core component of the course. Having failed 2 other units, the University decided to exclude him from the course. 5. The University further contends that Mr Pedraza availed himself of an internal appeal mechanism in relation to his exclusion from the course and mark. In particular, an email of 11 March 2019 was referred to during oral submissions by the University. Relevantly, parts of that email include: 'The mini pass-out, however, tested the ability of a neuropsychology trainee to *administer* these tests (as noted, to patients whose first language is English). …. but as a trainee neuropsychologist, you are obliged to learn them so you could assess English-speaking patients yourself. This was a non-negotiable requirement of the training course, and the expectancy is consistent with the general language proficiency requirements for the acceptance into the course (i.e. the IELTS-based competency which you demonstrated). As you know, the tasks of all trainees was to learn the pronunciations of 129 words with unusual spelling-sound correspondences (including many with multiple acceptable variations). This task was challenging for all trainees as perhaps around one quarter of the words may have been unfamiliar to many English speakers. But performances over the past 7 years of administrating the pass-out have shown that the task is manifestly achievable by all trainees, irrespective of their first language - it is a rote-learning memory task, in the end. You acknowledge that you failed to learn the pronunciations, making errors on more than half of the items. Indeed, 13 errors involve forgetting that a word *could* have multiple pronunciations (or providing the multiple variants when only one was acceptable). This indicated inadequate commitment of the material to memory, not difficulty with the pronunciations themselves. To put this performance in context, the average number of errors was 8, no-one made more than 18 errors, and forgetting which words had multiple pronunciations was very rare.' [My emphasis] 1. The email ends in summarising that there are no grounds for an appeal based on English not being Mr Pedraza's first language as he was obliged to learn new words just like any other trainee in order to be able to administer the tests competently. My consideration 1. It is also worth noting that a claim of discrimination in education on the basis of race under s17 of the Act provides: (1) It is unlawful for an educational authority to discriminate against a person on the ground of race-- (a) by refusing or failing to accept the person's application for admission as a student, or (b) in the terms on which it is prepared to admit the person as a student. (2) It is unlawful for an educational authority to discriminate against a student on the ground of race-- (a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority, or (b) by expelling the student or subjecting the student to any other detriment. 1. Relevantly, discrimination on the ground of race is defined by s7 as: (1) A person ( "the perpetrator" ) discriminates against another person ( "the aggrieved person" ) on the ground of race if the perpetrator-- (a) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or (b) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or (c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race. 1. In my view the claim and the available evidence is lacking in substance. It does not establish that Mr Pedraza has an arguable case to prove that the University acted unlawfully against him on the ground of race by denying him access to the course or expelling him from the course and refusing to re-enrol him on the basis of his race and his use of the English language. 2. I accept that it was a fundamental component of the pass-out test that students had to learn the pronunciations of 129 words with unusual spelling-sound correspondences which included multiple acceptable variations. The evidence reveals in my view that Mr Pedraza failed to learn the pronunciations and made multiple errors. He was obliged to learn new words in the same circumstances as any other trainee but was unable to do so. 3. In addition to these findings, Mr Pedraza failed 2 of the required essays in the unit in which he also undertook the pass-out test. This is further evidence of his academic ability not meeting course requirements which, in my view, has no bearing upon his race. 4. I consider it fair and just to refuse leave because the claim is lacking in substance. 5. Leave to proceed is refused. Order 1. Leave for the complaint against Macquarie University to proceed is refused. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 August 2021