Kunhi v University of New England [2008] NSWADT 333

CITATION: Kunhi v University of New England [2008] NSWADT 333

DIVISION: Equal Opportunity Division

APPLICANT Sharma Kunhi PARTIES: RESPONDENT University of New England

FILE NUMBER: 081104

HEARING DATES: 2 December 2008

SUBMISSIONS CLOSED: 2 December 2008

DATE OF DECISION: 16 December 2008

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Application for leave - no substantial reason for granting leave

LEGISLATION CITED : Anti-Discrimination Act 1977

CASES CITED: Xu v Sydney West Area Health Service [2006] NSWADT 3

APPLICANT In person REPRESENTATION:

RESPONDENT A Fox, agent

ORDERS: Leave is refused for the complaints of disability discrimination and race discrimination to proceed to hearing.

REASONS FOR DECISION Introduction 1 Background. Ms Kunhi completed a law degree at the University of New England in 2006. In 2007 she enrolled in the Honours program and wrote a thesis. Mr Bryan Pape, senior lecturer, marked the thesis and referred suspicions of plagiarism to Associate Professor Simpson. Following an investigation Ms Kunhi was advised that an allegation of unintentional plagiarism had been substantiated. The penalty imposed was to rewrite and resubmit the thesis. Even if she did so, she would only be awarded a maximum mark of 50%. Ms Kunhi did not resubmit her thesis and requested that she be able to graduate in her absence due to illness. Ms Kunhi subsequently graduated and, by doing so, effectively elected to take a pass degree. Her Honours thesis is recorded as "failed incomplete". Ms Kunhi has applied to the Tribunal for permission for complaints of race and disability discrimination against the University to go ahead despite the fact that the President of the Anti-Discrimination Board declined those complaints as lacking in substance. Ms Kunhi did not identify her race but said she is an Australian national with a foreign name and is a Muslim. Her disability is that she has lost the sight in her right eye as a result of glaucoma. 2 Leave to go ahead with complaints. When the President declines a complaint as lacking in substance, the applicant must obtain the Tribunal's permission (or leave) before the complaints can proceed: Anti-Discrimination Act 1977 (AD Act), section 96. In Xu v Sydney West Area Health Service [2006] NSWADT 3, the Tribunal set out its approach to determining applications for leave under section 96. I adopt those principles in relation to this case. In summary, the applicant needs to satisfy the Tribunal that there is a substantial reason for leave to be granted including that the complaint has some prospects of success. I have relied on the President's Report and the parties' submissions in determining this matter. The complaints 3 Legal basis of complaints. Ms Kunhi complained about the fact that allegations of plagiarism were made, the process by which those allegations were investigated and the outcome of the allegations. She also complained about being denied an opportunity to appeal. In order to substantiate these complaints Ms Kunhi would have to prove that she was subjected to a detriment on the ground of her race or disability: AD Act, section 17 and section 7 (race) and section 49L(2) and section 49B (disability). Although Ms Kunhi mentioned "indirect discrimination", after questioning her it became apparent that her complaints were complaints of direct discrimination as defined in section 7(1)(a) and section 49B(1)(a) of the AD Act, not indirect discrimination as defined in section 7(1)(c) and section 49B(1)(b). Direct discrimination has two elements. The first is differential treatment, where a comparison is made with how the applicant was treated and how a person of a different race was or would have been treated in the same or similar circumstances. The second is causation which requires proof that one of the reasons for the treatment was the applicant's race: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5. If this matter were to proceed to hearing, the issue would be whether these two elements of direct discrimination had been established. 4 Race discrimination complaint. Race is defined in section 4 of the AD Act to include "colour, nationality, descent and ethnic, ethno-religious or national origin." Ms Kunhi says she is an Australian national and a Muslim. Ms Kunhi declined to identify her race any more precisely. Islam is a religion, not a race or an ethno-religious origin: Khan v Commissioner, Department of Corrective Services & anor [2002] NSWADT 131; Toll Pty Limited trading as Toll Express v Abdulrahman [2007] NSWADTAP 70. Consequently, even if a reason for the treatment was Ms Kunhi's religion, such conduct is not unlawful under the AD Act. Having a foreign name is not a race nor, in the absence of any evidence about Ms Kunhi's ethnic or racial background, can it be regarded as a characteristic that appertains generally to persons of a particular race: section 7(2). Because Ms Kunhi has not identified a race, other than an Australian national, that comes within the definition of that term in the AD Act, her complaint, if it were to proceed to hearing, would be highly unlikely to succeed. 5 Evidence of direct discrimination. Even if Islam or a foreign name were covered by the definition of race, Ms Kunhi would be unlikely to be able to establish either the differential treatment or the causation element of direct discrimination. Although she said that she had ample evidence that she was treated less favourably than other students, the evidence she provided was extremely weak or irrelevant. The evidence or assertions on which she relied included the following: (i) that she is a person of good character and integrity; (ii) that she achieved a high standard in her academic studies; (iii) that her thesis topic was complex and novel; (iv) that other students found Mr Bryan Pape, the senior lecturer who initially made the allegation of plagiarism, to have an overly strict marking policy; (v) that Mr Pape is a member of the National Party and is "right wing"; (vi) that Mr Eburn, who assessed the thesis for plagiarism, and Mr Pape, had previously changed the assessment criteria in courses in which she was enrolled to her disadvantage; (vii) Mr Pape gave all Anglo Saxon students extensions for their final essay but refused to give her an extension; (viii) that Professor Simpson's face blackened when she mentioned that she was a Muslim; (ix) that in August 2007 the University "stripped" 210 non-Anglo masters students of their degrees on the basis of very flimsy evidence"; (x) the vast majority of students accused of plagiarism are foreign students and it is well known that Anglo-Saxon students collaborate with one another; (xi) it is a "known fact" about the University that foreign names draw the greatest penalties, the greatest ire from the academics, particularly Mr Pape; (xii) the University has a notorious reputation even amongst students of Sydney's Universities for being anti-Muslim and for their racist ethno-religious policies. 6 Assessment of evidence. Even if the first three matters are accepted, they do not advance Ms Kunhi's argument given that the finding was that the plagiarism was unintentional. In relation to the fourth and fifth matters, neither gives rise to an inference of discrimination. Ms Kunhi said in her oral submissions that she had evidence that Mr Pape was prejudiced. None of the emails submitted to the Anti-Discrimination Board contain allegation of prejudice, racial or otherwise. Furthermore, the plagiarism allegations were determined, not by Mr Pape, but by Mr Eburn, who had been delegated to deal with the issue. The sixth matter concerns changes to assessment policy but does not give rise to an inference that those changes were, in any way, based on a student's race. Although expressed as a blanket assertion, the seventh matter appears to have involved an incident where an Anglo-Saxon student was given an extension and Ms Kunhi was not. By Ms Kunhi's own admission, her circumstances were not the same as the other students so no adverse inference on the basis of race could be drawn. An alleged expression on Professor Simpson's face, even if proved, would be an insufficient and unreliable basis for drawing any conclusion as to race discrimination. 7 The University denies the ninth matter. Their assertion is that during 2007 it became apparent that a considerable number of students studying the Master of Information Technology course may have been guilty of plagiarism. An investigation was conducted and a report prepared by an independent panel. Ultimately the University determined that it was inappropriate to revoke any degrees that had been awarded. Even if Ms Kunhi's assertions are accepted and the students were "stripped" of their Masters Degrees, that fact does not give rise to any adverse inference about Ms Kunhi's treatment. The last three matters are assertions or opinions that are unsupported by any evidence. The evidence about the reasons for the treatment cannot be based solely on Ms Kunhi's perception of events. There must be some direct evidence or evidence from which an inference can be drawn, which supports that perception: Yo Han Chung v University of Sydney [2002] FCA 106 Spender J at [46]; Awadallah v CPA Australia [2004] FCA 768. 8 Ms Kunhi said that if the evidence that she has relied on to date was insufficient, other students' thesis could be summonsed to demonstrate that she had been treated unfairly. While it is almost always necessary to establish discrimination by circumstantial evidence, the likelihood that this process would lead to a finding of racism is remote given that there is no basis on which an adverse inference could be drawn on the evidence put forward by Ms Kunhi. 9 Disability discrimination complaint. In relation to the complaint of disability discrimination, Ms Kunhi says that she contracted glaucoma in March 2005. She submitted her thesis at the end of that year. She says in her complaint that, "The determination did not take into account my response or the many medical certificates/reports I submitted. My thesis was marked down to a possible 50% (but no more) and I was refused any right of defence – a complete denial of natural justice. To compound my penalty, I was given the most severe penalty. . . far greater than someone accused of 'intentional plagiarism' could draw. Ms Kunhi also raised an issue about her thesis containing minor "formatting" errors. Although unclear, Ms Kunhi's submission appeared to be that those errors were a result of her loss of sight and the University placed too much emphasis on them. 10 I find it difficult to understand precisely what Ms Kunhi is alleging in relation the disability discrimination complaint. Doing my best, I gather that she is alleging that she was treated less favourably than a student who did not have her disability would have been treated in the same or similar circumstances. The treatment she refers to is not taking into account her response to the allegations and giving a more severe penalty than others would have received. The uncontroverted evidence is that Ms Kunhi was given two extensions of time in which to provide her response. After the final deadline had expired, the matter was determined without the benefit of all the material that Ms Kunhi wanted to present. The connection between the penalty Ms Kunhi received and her eyesight is not apparent. Reading between the lines, I gather that Ms Kunhi is also complaining that the University should have accommodated her by giving her extra time to respond or treated her more leniently because of her disability. However, the AD Act does not oblige the University to do so. Conclusion 11 Ms Kunhi is aggrieved by the University's treatment of her Honour's thesis and complains of race and disability discrimination. She has not identified a race that falls within the definition of that term in the AD Act. Even if she had done so, the evidence that she was subjected to differential treatment or that her race (whatever that may be) was a reason for the way the University treated her is, at best, extremely weak. If the matter proceeded to a hearing it would have little or no prospects of success. While Ms Kunhi has lost most of the sight in one eye, there is no basis for inferring that one of the reasons for the way in which Ms Kunhi was treated was her lack of vision. Nor does the University have a duty to accommodate Ms Kunhi's lack of vision in the circumstances of this case. Again, if the matter proceeded to a hearing it would have little or no prospects of success. I decline to give leave for the complaints to proceed.