CITATION: Kalim v Universities Admissions Centre (NSW & ACT) Pty Ltd [2008] NSWADT 135 DIVISION: Equal Opportunity Division APPLICANT Neshat Kalim PARTIES: RESPONDENT Universities Admissions Centre (NSW & ACT) Pty Ltd FILE NUMBER: 081004; 081006 HEARING DATES: 26 February 2008 SUBMISSIONS CLOSED: 26 February 2008 DATE OF DECISION: 13 May 2008 BEFORE: Hennessy N - Magistrate (Deputy President) CATCHWORDS: Application for leave to proceed MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 Xu v Sydney West Area Health Service [2006] NSWADT 3 APPLICANT In person REPRESENTATION: RESPONDENT K Edwards, barrister ORDERS: Leave is refused in relation to the complaints of race discrimination and victimisation. REASONS FOR DECISION Introduction 1 Mr Kalim is requesting the Tribunal's permission for two complaints under the Anti-Discrimination Act 1977 (AD Act) to proceed despite the fact that the President of the Anti-Discrimination Board declined the complaints as lacking in substance: AD Act, section 96. The first complaint is a complaint of race discrimination and the second compliant is a complaint of victimisation. Both complaints are against the Universities Admissions Centre (NSW & ACT) Pty Ltd (UAC). 2 The complaints arise from the fact that Mr Kalim applied to UAC for admission into three university courses, including a Bachelor of Medicine at the University of New South Wales (UNSW). As well as other documentation, Mr Kalim provided UAC with copies of transcripts for a Bachelor of Science Degree and a partially completed Bachelor of Medicine degree from Kabul University in Afghanistan. UAC refused to assess those qualifications because it had evidence that they may not be authentic and were unable to obtain verification of their authenticity from Kabul University. Mr Kalim says that in refusing to assess his qualifications without verification UAC has discriminated against him on the ground of his race in breach of section 19 of the AD Act. He says that UNSW was notified by Kabul University that his qualifications were genuine and on that basis offered him a place in the Masters of Forensic Mental Health course. 3 Mr Kalim's second complaint is that after he complained to the Anti-Discrimination Board, UAC contacted other universities to which Mr Kalim had applied directly for admission and advised them not to accept Mr Kalim's qualifications without verification. He says that such conduct constitutes victimisation in breach of section 50 of the AD Act. Mr Stanton, the Managing Director of UAC, denies having contacted any university to advise it of concerns about Mr Kalim's qualifications. 4 By letter of 22 February 2008, after the complaints had been referred to the Tribunal, Mr Kalim sought to add a complaint that UAC had not recognised his English language proficiency. Although section 103 of the AD Act gives the Tribunal discretion to amend a complaint at any stage in the proceedings, I do not regard it as appropriate to consider an application for an amendment to a complaint before the application for leave for the complaint to proceed has been determined. If leave is refused then there is no longer a complaint before the Tribunal to which could be amended. Approach to leave applications 5 Mr Kalim needs to obtain leave before either of his complaints can go ahead. 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, especially the points made at [17] and [18]. 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 reasonable prospects of success. The Tribunal also pointed out a [16] of Xu that: It is not generally appropriate for the President to decline a complaint as lacking in substance where there is a serious question of fact to be determined or where a serious question of credit is involved. ( Spellson v George (1992) 26 NSWLR 666.) Importantly, if factual issues are likely to be affected by evidence in the possession of the respondent, that matter alone may make it inappropriate to dismiss the matter. Material in summonsed documents or answers on cross examination may lead to the proof of factual matters about which the applicant has no direct evidence. ( Wickstead v Browne (1992) 30 NSWLR 1.) Evidence 6 Although it is not the Tribunal's role to make findings of fact at this stage, I must assess the evidence in order to form a view as to the merits of the complaints. The evidence consisted of the President's Report, an affidavit of Mr Stanton dated 22 February 2008 and the oral submissions from the parties at the hearing. 7 Universities in NSW and the ACT are the owners of UAC. While it is the universities themselves who decide who will be offered positions, UAC co-ordinates the process. One of its roles is to assess local and overseas qualifications to determine whether they are genuine. UAC employees are trained to identify documentation, which may be fraudulent. According to Mr Stanton, tertiary admissions organisations around the world take a very cautious approach to assessing qualifications from certain countries including China, the United States, the Russian Federation, Afghanistan and Pakistan. He says that this is because a large percentage of documents purporting to be from tertiary institutions in those areas are false. If there are indications that a document may not be authentic steps are taken to obtain verification from the tertiary institution concerned. If verification cannot be obtained, the qualification is not included when the application is assessed. 8 UAC's concerns about the authenticity of Mr Kalim's documents were based on the following grounds: (a) before receiving Mr Kalim's application, QTAC (the equivalent of UAC in Queensland) had raised the possibility that Mr Kalim was a person using various identities to make applications for study around Australia; (b) both QTAC and UAC had received applications from those other identities and at least some of the documents annexed to each application were found to be fraudulent; (c) when UAC received Mr Kalim's application concerns were raised because those qualifications recorded very high marks and recorded that studies had been undertaken concurrently in Pakistan and Afghanistan; (d) Mr Kalim's application to QTAC and his first UAC application relate to people with identical birth dates and names, but a slightly different father's name; and (e) The relevant documents provided by Mr Kalim in subsequent applications to UAC were slightly different from the qualifications he had previously submitted. 9 UAC staff attempted to verify the validity of the academic transcripts with Kabul University by letter, facsimile, email and telephone but none of those attempts were successful. Mr Stanton became aware in January 2008, that the Federal Police were of the view that Mr Kalim had used other identities for the purpose of making applications to study at universities in Australia. Mr Stanton also noted that in two separate documents provided by Mr Kalim to the Anti-Discrimination Board, he purports to have studied Medicine at the University of Sindh in Pakistan from 2002 to 2005 and to have studied Medicine at the University of Kabul between 2003 and 2005. (See pages 42 and 46 of President's Report in File Number 081004.) Mr Kalim provided no explanation for this discrepancy. 10 Mr Kalim alleged that Mr Stanton had falsified the documents showing discrepancies in his qualifications that were allegedly sent to QTAC. He says that he did not send those documents and they are "bogus". Mr Kalim says that he has applied directly to several universities and has been offered places in courses without the need for his qualifications to be authenticated. He also says that Kabul University does not recognise the authority of Mr Stanton, it only recognises the authority of the universities themselves. According to Mr Kalim that is why the Kabul University has not verified with Mr Stanton that his qualifications are genuine. 11 In relation to the victimisation complaint, Mr Kalim says that he was offered a postgraduate place in a course at UNSW and a place in an undergraduate course at the University of Wollongong. He says that after he lodged a complaint of discrimination those universities required verification of his qualifications. Mr Kalim has concluded that UAC must have advised those universities not to offer him a place without first obtaining verification of his qualifications. He says that UAC did so as a result of him having lodged a complaint of discrimination. 12 Mr Stanton's evidence as set out in a letter to the Anti-Discrimination Board dated 24 October 2007, is, in part, that: In any situation where Mr Kalim has lodged his application through UAC, it has been the universities, which have first approached UAC to discuss his applications. Where Mr Kalim has lodged an application directly with a university, UAC has not approached that university to inform the university of UAC's concerns with the qualifications Mr Kalim has presented. Indeed, UAC would normally be completely unaware of any application lodged directly with a university unless the university concerned approached UAC for advice in the matter. 13 In relation to Mr Kalim's application to the University of Wollongong, Mr Stanton said that: The University of Wollongong has not approached UAC for advice in Mr Kalim's case and UAC has only been made aware of Mr Kalim's application to that university through Mr Kalim's own correspondence with UAC. Once UAC was made aware of Mr Kalim's direct application to the University, UAC determined that it would not contact the University to advise it of UAC's concerns about Mr Kalim's qualifications. At the time, (2 October) of Mr Kalim's complaint of victimisation, UAC had not contacted the University about Mr Kalim. . . . UAC did not at any time advise the University that it should not accept the qualifications, nor did UAC advise the University that it should withdraw its offer of enrolment to Mr Kalim. Legislative requirements 14 In order to prove that he has been unlawfully discriminated against on the ground of his race, Mr Kalim would have to establish that: a) UAC is providing him with a service; b) UAC has treated him unfavourably either by refusing to provide him with that service or in relation to the terms on which the service has been provided; c) the treatment consists of either: (i) treating Mr Kalim less favourably than in the same circumstances, or in circumstances which are not materially different, UAC treats or would treat a person of a different race;(the differential treatment requirement) and at least one of the reasons for that treatment is Mr Kalim's race (the causation requirement); or (ii) requiring Mr Kalim to comply with a requirement or condition which a substantially higher proportion of persons not of his 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 Mr Kalim cannot comply. 15 Mr Kalim made a complaint of victimisation on 2 October 2007. In order to prove that he has been victimised, Mr Kalim would have to establish that as a result of him complaining to the Anti-Discrimination Board about race discrimination on 20 July 2007, UAC has subjected him to a detriment: AD Act , section 50. Race discrimination complaint 16 Provisions of services. UAC admitted that it was providing Mr Kalim with a service and that it had provided those services on certain terms. 17 Differential treatment requirement. Mr Stanton provided evidence that supports UAC's contention that it would not have treated someone of a different race any differently from the way it treated Mr Kalim. That evidence was that when a New Zealander provided documentation relating to a Scottish qualification suspected of being fraudulent, UAC sought to verify the qualification but was unable to do so. That applicant was not considered for the purpose of allocating places in NSW and ACT universities. Based on a hypothetical, rather than an actual comparator, there was no evidence from which an inference could be drawn that a person who did not purport to have qualifications from Afghanistan would have been treated any differently from Mr Kalim in the same or similar circumstances. When comparing the treatment that Mr Kalim received with the treatment a hypothetical person from a different race would have received, the circumstances include "all of the objective features which surround the actual or intended treatment of the person": Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 at 160-161. In this case those circumstances include the fact that Mr Kalim presented qualifications, which UAC regarded as highly, suspect. 18 Causation requirement. According to UAC, the reason that it required verification of his qualifications from Kabul University was that there were genuine concerns based on tangible evidence about the authenticity of the documentation he provided. Although UAC said that it takes a particularly cautious approach when assessing qualifications from certain countries including China, the United States, the Russian Federation, Afghanistan and Pakistan, in this case the fact that UAC has such a policy was not the reason they asked for Mr Kalim's qualifications to be verified. Mr Kalim submitted that his race must have been a factor in UAC's decision because when he applied for admission directly to a university, he had been accepted without any need for his qualification to be verified. However, Mr Stanton pointed out that universities are not bound to apply the same standards as UAC. Furthermore, Mr Kalim did not provide the Tribunal with a copy of the documentation he provided to UNSW as proof of his qualifications. 19 Indirect discrimination. It is arguable that UAC has imposed a requirement on Mr Kalim that where qualifications are from a particular group of countries (including Afghanistan) they will not be assessed until verified by the issuing body. Given that qualifications from Afghanistan (and several other countries) are treated with caution, it may be that a higher proportion of applicants who are not Afghani can comply with that requirement. However, even if that were the case, a Tribunal would be highly likely to regard such a policy as reasonable. Furthermore, according to UAC it was the suspect nature of the documents, rather than the fact that they were from Afghanistan, that was the main reason for requiring verification. Victimisation complaint 20 Mr Kalim's assertion that he has been victimised as a result of lodging a complaint of discrimination lacks substance. It is mere speculation on Mr Kalim's part that UAC advised any university not to offer him a place without first obtaining verification of his qualifications. UAC denies that that was the case. There is very little likelihood of Mr Kalim being able to prove the factual basis for the complaint of victimisation. Even if he were able to do so, he would still have to establish a link between a detriment and having lodged the complaint of discrimination. Conclusion 21 Mr Stanton provided detailed and credible evidence about the approach UAC takes when assessing university applications, which are suspected of being fraudulent. In summary, UAC's policy is that if such transcripts cannot be verified with the issuing university, they are not taken into account when assessing eligibility for a place in any higher educational institution. UAC said that it adopted that approach when assessing Mr Kalim's application. Mr Kalim's response was that Mr Stanton had falsified the documents showing discrepancies in his qualifications that were allegedly sent to QTAC. He also said that Kabul University only responds to universities directly and does not recognise Mr Stanton's authority. Those allegations are not credible given all the other evidence referred to by Mr Stanton, which suggests that Mr Kalim has not provided genuine documentation. Mr Kalim has been offered a place when he applied direct to a university, but that does not mean that UAC has discriminated against him on the grounds of his race. A much more likely explanation is that the individual universities do not undertake the rigorous checking process carried out by UAC. The evidence is also substantially in UAC's favour in relation to the victimisation complaint. 22 In general, it is not appropriate to refuse leave to proceed where there is a serious question of fact to be determined or where a serious question of credit is involved. However, in this case, the evidence is overwhelmingly in favour of UAC's submission that there has been no discrimination on the ground of race and no victimisation. Mr Kalim has very little, if any, credibility given the evidence Mr Stanton has adduced about his conduct and his failure to satisfactorily respond to those allegations. In those circumstances I am not persuaded that there is a substantive reason for granting leave for either of his complaints to proceed. Orders Leave is refused in relation to the complaints of race discrimination and victimisation. 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.