Equal Opportunity Tribunal of New South Wales CITATION: Abdulla -V- The University Of Sydney (No. 1) [1997] NSWEOT COMPLAINANT: Issam Abdulla RESPONDENT: The University of Sydney NUMBER: 130 of 1996 Mr Graham Ireland ( Judicial Member ) TRIBUNAL: Ms L Farmer OAM Mr M Luger GROUNDS OF COMPLAINT: Discrimination on the ground of race and victimisation DATES OF HEARING: 04/03/1997; 04/08/1997; 04/11/1997; 04/14/1997; 04/18/1997 DATE OF JUDGMENT: 04/18/1997 Complainant: Self Represented LEGAL REPRESENTATIVES: Respondent: Ms J Oakley (Counsel) Minter Ellison (Solicitors) JUDGMENT IN FAVOUR OF: Allowed in Part CHAIRPERSON: The Tribunal has considered its decision in the application by the Respondent under s.111(1) of the Anti-Discrimination Act 1977 (the Act) for the dismissal of the complaints at this stage of the proceedings. We are able to deliver that decision today. Before I do so I should point out that in the short time that has been available, with other obligations, it has been not possible to have that decision reduced to writing so I am going to read it off my handwriting so you will have to make allowances for my difficulty in reproducing my handwriting. The decision will be taken down of course on the transcript, but as the transcript is often delayed we are going to tape record it so that it can be typed quickly by the Registry next week and can be made available. The decision of the Tribunal I will read. The complaint was made by Mr Abdulla to the Anti-Discrimination Board by a letter dated 31 January 1994. The complaint was described by the Anti-Discrimination Board as a complaint "alleging discrimination on the ground of race and victimisation". The Anti-Discrimination Board investigated the complaints. The President of the Board advised the Tribunal that he had informed Mr Abdulla of his view that the complaints were lacking in substance and that he declined the complaints in accordance with s.90(1) of the Act. Mr Abdulla requested that the complaint be referred to this Tribunal for inquiry. The Complainant was represented by a firm of solicitors who filed points of claim and later an amended points of claim was substituted. Close to the hearing date the legal representation of the Complainant was discontinued. At the request of the Complainant the hearing was stood over to enable the Complainant to appoint further legal representation. At the hearing the Complainant elected to proceed without legal representation. He has presented his own case to the Tribunal. The Complainant is not legally experienced. This has contributed to the difficulties of determining the issues to be addressed by the inquiry and to elucidate the evidence which supports his allegations. The Tribunal has endeavoured to assist the Complainant in this task in a manner which was not unfair to the Respondent. The Tribunal obtained scant assistance from the amended points of claim and the supporting affidavit filed on behalf of the Complainant by his legal representative, in the task of determining the claims of the Complainant, both in relation to the complaints investigated by the Anti-Discrimination Board and in relation to the application of the Act to those complaints. After considering the contents of the file, referred by the President of the Anti-Discrimination Board to the Tribunal, together with his report of his investigations, the Tribunal concluded that the President considered the following items of complaint and accordingly these items were the complaints referred to in the report of the President to the Tribunal and which are the subject of the inquiry by the Tribunal. Firstly, that the Respondent discriminated against the Complainant under s.7(1)(a) of the Act in the less favourable treatment extended to the Complainant in considering and rejecting his application to the Respondent dated 30 September 1993 for admission to the course of Master of Visual Arts, 1994; that the discrimination was on the ground of the complaint's race; and that discrimination was unlawful under s.17(1)(a) of the Act as the Respondent, being an educational authority, on the ground of race, refused that application, and under s 17(2)(a) of the Act denied the Complainant, being a student of the Respondent, access to the benefit of entering the course provided by the Respondent, namely the Master of Visual Arts 1994 course. Secondly, the actions of the Respondent in considering and rejecting the application of the Complainant to be admitted to the course of the Respondent namely the Master of Visual Arts course 1994, was unlawful under s 50 of the Act as the Complainant was subjected to a detriment and was based on the allegation made by the Complainant in 1991 that the Respondent and employees of the Respondent committed acts which amounted to a contravention of the Act. The Complainant sought to include, as complaints for inquiry by the Tribunal, various incidents which the complaint alleges adversely affected him during his undergraduate course in the College of Arts Faculty at the University of Sydney between 1991 and 1993. The Complainant sought to have each incident treated as a separate claim of discrimination or victimisation. It is clear to the Tribunal, after examining the President's file, that these incidents were not investigated by the Anti-Discrimination Board as part of the complaint by Mr Abdulla and that the President's consideration was confined to the two items of complaint formulated by the Tribunal. During the cross-examination of the Complainant and before the cross-examination was completed the Respondent has made an application under s.111(1) of the Act seeking the dismissal of the complaint on the basis that the Tribunal should be satisfied that the two items of complaint are lacking in substance. At this stage of the proceedings the examination of the Complainant's evidence-in-chief is completed and the cross-examination of the Complainant is only partly completed. The Complainant has informed the Tribunal that he intends to call only one other witness who was a fellow student during parts of the Complainant's undergraduate course and who will attest to similar fact evidence to some of the incidents complained of by the Respondent. The Tribunal has received in evidence the material in the report of the President to the Tribunal. The Respondent is entitled under s.111(1) of the Act to make an application to dismiss this complaint at this stage of the inquiry. The Respondent submits that the evidence to this stage of the inquiry demonstrates that the Complainant is not capable of establishing the substance of his complaints and that the complaints should now be dismissed. The evidence before the Tribunal comprises the incomplete evidence of the Complainant, a statement by the College Secretary of the Faculty and oral evidence by her to the Tribunal, and the material in the report to the Tribunal from the President of the Anti-Discrimination Board. In relation to the first item of complaint the Respondent points to two fundamental omissions in the evidence and the lack of any prospect that the Complainant will be able to overcome these flaws namely, there is no substantive evidence which would allow the Tribunal to compare the reasons for the rejection of his application for admission to the Master of Visual Arts course 1994 with the reasons for admitting other applicants to that course. Secondly, there is no evidence which would establish that if the Complainant suffered less favourable treatment that the Respondent rejected his application on the ground of the race of the Complainant. In relation to the second item of complaint, that is the complaint of victimisation, the Respondent submits that the Complainant is not capable of producing substantive evidence that would establish that the Respondent rejected his application on the ground that the complaint alleged that the Respondent had discriminated against the Complainant in contravention of the Act. The test to be applied in an application under s.111(1) of the Act for lack of substance, when the application is made before the evidence is complete, was considered by the Tribunal in the inquiry of Carberry v Culburra Bowling and Recreation Club Limited in an unreported decision delivered on 6 September 1996. The Tribunal adopted the views of courts and tribunals in other jurisdictions in Australia when considering provisions similar to s.111(1) of the Act, namely, is the material before the Tribunal so lacking in substance, so incapable of establishing the complaint that the complaint ought to fail at this stage. In applying that test the Tribunal considers it should err on the side of caution and give to the Complainant the benefit of any uncertainty that the complaint might, with a reasonable degree of application to the allegations in the complaint, be able to establish on the balance of probability that the complaint is substantiated. In this inquiry the Tribunal has had regard to the position that the Complainant is not represented and has difficulty in presenting his case in the most advantageous manner. The Tribunal after considering evidence available to it at this stage of the inquiry is satisfied that the first item of the complaint relating to discrimination on the ground of race is so lacking in substance that it should now be dismissed. On 30 September 1993 the Complainant completed the form of application for admission to the Master of Visual Arts course 1994 at the Respondent institution. The application stated that the Complainant applied for admission based on his academic tertiary qualifications namely three year full time Bachelor Visual Arts course at the Sydney College of the Arts and a two year full time Associate Diploma course at Liverpool TAFE. By letter dated 1 November 1993 the College Secretary advised the Complainant that his application was unsuccessful. It is necessary to set out the terms of that letter. The letter is in these terms: "Thank you for your application to the Master of Visual Arts program. Enrolment quotas for the program are extremely restricted in relation to the number of applications received. I wish to advise you that your application for this year has been unsuccessful. All applications are considered by academic staff in the relevant studio area on the basis of the admission requirements and the other criteria for assessment of applications as stated in the general information (copy attached). The College also considered the relevance of proposed MVA research projects to its range of studio programs. If you wish to make further inquiries regarding application procedures and admission requirements please contact the Co-Ordinator of Post Graduate Studies, Bruce Adams" and then follows a telephone number. That is the end of the relevant parts of the letter. The Complainant was not contacted by the Respondent in relation to his application prior to receipt of this letter. He sought an interview with Mr Adams as suggested in the letter. At the interview on 9 November 1993 the Complainant states that Mr Adams said the only information he had as to the reasons for the rejection of the application was contained in a slip of paper on the outside of a file held by him. The note stated, "Did not meet the minimum academic qualifications, i.e lacks four year degree level study, or equivalent professional experience. Associate Diploma is considered--" and the next word is indecipherable on our copy of that note. The Complainant only obtained access to this note by an application to the Respondent under the Freedom of Information Act. The Complainant explained to Mr Adams that the Associate Diploma at TAFE and his practical experience set out in a curriculum vitae document, attached to his application, should have been taken into account and would justify the acceptance of his application. It is noted that the Complainant did not provide to the Tribunal a copy of this curriculum vitae. Mr Adams told the Complainant that he would make inquiries and get back to him. The Complainant was not contacted by Mr Adams, nor did the Complainant endeavour to contact Mr Adams. By a letter dated 31 January 1994 the Complainant formally complained to the Anti-Discrimination Board. The College Secretary stated that she was responsible for fielding applications for the Master of Visual Arts course for 1994, at first instance and that applications which did not clearly fulfil the required pre-requisites were sorted out by her. She said that she would have sought instructions from Mr Adams, as the co-ordinator of post graduate studies at the faculty, to reject these applications "on this basis alone". She stated that she believed that the Complainant's application was one of the applications about which she sought and received instructions to reject. The College Secretary supplied a copy of the relevant pages of the 1993 College of the Arts Handbook dealing with post graduate requirements including academic pre-requisites. The relevant passage in the handbook is in these terms, "Applicants are expected to have successfully completed a minimum of four years training at tertiary level in the visual arts. An applicant may be admitted without such qualifications if he, or she, can demonstrate the possession of equivalent professional qualifications and the capacity to successfully undertake the course. In the main, applicants who do no possess the required academic qualifications, will have actively practised for a time in their professional field. It is assumed that those entering the course of studies are trained and competent in their particular field and are seeking to extend their practice at a higher level. Mid career applicants are expected to have at least five years professional experience." This wording is also contained in the first page of the application form under the heading "general information." The College Secretary also stated that the Complainant's application clearly did not meet the academic pre-requisites requiring four years tertiary study or equivalent and that the critical part of this pre-requisite is study at a fourth year level which is needed to prepare students for Masters level study. This latter qualification is not, in the view of the Tribunal, expressed in the handbook or the general information in the application form. It may be inferred by those conversant with higher degree standards at University, but it may not be reasonable to infer such understanding to a person such as the Complainant, with limited exposure to Australian University culture and limited ability to interpret and interpolate meanings and requirements not specifically stated in statements written only in English. The Complainant produced a copy of a list prepared by the Respondent, showing the qualifications of the 13 applicants who accepted appointment to the 1994 Masters course. One other offer was made and was not accepted. The Respondent acknowledged that two of the acceptors did not have four years tertiary qualification and were admitted by reason of their professional experience. It is not apparent to the Tribunal, from the information in this document, but it may be the case that at least two other applicants may have had their professional qualifications taken into account with a lesser academic record than the four years tertiary qualification. The Complainant has not attempted to adduce other evidence or suggest that other evidence can be adduced by him which might demonstrate that the Respondent did not rigidly apply the standards described by the College Secretary of the faculty. There is a lack of evidence that the application of the Complainant was dealt with less favourably than the application of other successful applicants. This item of the complaint should fail at this stage on this basis. There is also a lack of evidence that the rejection of the application and the manner in which the Respondent dealt with the application, even assuming that his treatment was discriminatory under s 7 (1)(a) of the Act, was on the ground of the Complainant's race. The Complainant is Iraqi. The Tribunal is satisfied that the Complainant cannot show, by direct evidence, that a reason for the rejection and the manner of dealing with his application was because the Complainant was Iraqi. The Complainant, to establish a racial ground for the Respondent's actions, would be obliged to rely on indirect and circumstantial evidence. This is a difficult task. It requires evidence that satisfies the Tribunal, on the balance of probability, that circumstances and experiences sufficiently connected to the relationship between the Complainant and the Respondent leads to a conclusion based on cogent and reasonable inferences that the Respondent's actions were referrable to the Complainant being an Iraqi and if there be more than one reason for the Respondent's actions at least one of the reasons was the race of the Complainant. The Complainant has referred to two circumstances from which a connection is made, or can be made, to his Iraqi race in the history of his association with the Respondent. Firstly in 1991, after some earlier disagreements with his lecturer, his class was required to paint a self portrait. In his picture the Complainant included in the background a drawing of a Mosque. His lecturer asked, on two occasions, after studying his picture, if the Complainant was religious and finally told him that the Mosque was not appropriate to the assignment and directed that he remove it from the picture. The Complainant refused. Secondly in his submissions the Complainant stated that he considered there was a connection between the periods in 1991 in which some members of the academic staff in his course subjected him to harassment and to the periods of the Gulf War between Iraq and other nations. It is the view of the Tribunal that these circumstances are too tenuous to substantiate a claim that subsequent actions in 1993 in relation to his application for admission to the Master of Visual Arts course were taken on the ground of the Complainant's race. The Tribunal considers that his claim is not capable of being established. The Tribunal accordingly orders that the first item of the complaint be dismissed. The Tribunal now turns to the item of complaint relating to victimisation. This complaint as constructed by the Tribunal from the material in the President's report. It requires consideration of a number of allegations. First the statement by the College Secretary that the Complainant's application for admission to the 1994 course in the Master of Visual Arts was rejected at first instance by the College Secretary after consultation only with the Co-ordinator of Post Graduate Studies, Mr Adams, may not be correct. The letter of 1 November 1993, advising the Complainant that his application was unsuccessful states, "All applications are considered by academic staff in the relevant studio area" is inconsistent with the evidence of the College Secretary. It was submitted that this letter is merely a form letter sent in the same terms to all applicants and therefore should not be regarded as indicative of the process by which the Complainant's application was dealt with. The Tribunal considers that, prima facie, the Complainant's application can be construed as meeting the requirements for a four year tertiary qualification. The College Secretary stated that the Associate Diploma in Visual Arts from TAFE, supporting the Complainant's application, was not regarded as a sufficient tertiary qualification. The note on the Complainant's file, obtained by the Complainant after pursuing a notice under the Freedom of Information Act, states that a four year degree study qualification is required. The status of this evidence is inconclusive on the question whether the Respondent had detrimentally dealt with the Complainant's application. It is possible, in the opinion of the Tribunal, that the evidence, if further expounded by the Complainant, could demonstrate that the application was considered by the academic staff of the faculty, some of whom remained hostile to the Complainant for his early allegation about his treatment by the staff and the faculty. It is possible that the Respondent was not justified in rejecting the associate diploma qualification especially in considering the wording of its handbook and the general information section of the application form. Secondly the Complainant alleges that Mr Adams undertook to make inquiries about the reasons for the rejection of the application and to get back to the Complainant. He did not contact the Complainant. In the circumstances of the Complainant's distress at the rejection of his application and the history of his dealing with the faculty it may be considered detrimental to treat the Complainant in this manner, especially if Mr Adams knew the nature of that history. This situation is aggravated by the fact that, according to the evidence of the College Secretary, Mr Adams participated with her in deciding to reject the Complainant's application at first instance based on his qualifications. At the interview with the Complainant, the Complainant states that Mr Adams said he did not know the reasons for the rejection and that he had to refer to the note on the outside of the file. The handbook and general information may be capable of being construed to allow a discretion to the Respondent to accept an application to the Masters Course where the tertiary qualifications of the applicant falls short of the four year tertiary qualification and where the professional experience of the applicant may also be less than the faculty standard if considered in isolation. The sentence in the handbook, "in the main, the applicants who do not possess the required academic qualifications will have actively practised for a time in their professional field" can be construed to enable a more liberal approach to be taken with applications. It appears that no such approach was attempted in considering the Complainant's application according to the evidence of the College Secretary. If the letter of 1 November 1993 is correct the academic staff may have considered these aspects of the application. In either case, was the decision taken influenced by the early allegations of the Complainant? The status of the evidence is inconclusive but incomplete at this stage on these questions. Thirdly the relationship between the Complainant and some of the academic staff of the faculty deteriorated during first semester 1991. The Complainant related to the two assessments of his work at the end of the first semester when the faculty sent him a telegram confirming an appointment to the assessment meeting on the following day at a time half an hour after the allotted time for that assessment and to the inability of the staff member to fit the Complainant into the program during the rest of that day. The Complainant was failed in this assessment for failing to attend the assessment. The following day, after being kept waiting for three hours, the examiner again marked his work as a fail. The Complainant appealed to the show cause committee of the faculty which upheld the appeal and his mark was upgraded to a pass. The Complainant states this result did not address the core problem of the attitude of the academic staff towards him. Reference has been made to the allegation of mistreatment in connection with the Complainant's self portrait. Further, in the second semester of 1991 the Complainant and another student appealed to the Senate of the University alleging less favourable treatment towards them by two members of the academic staff of the faculty, particularly in relation to assessment procedures and also alleging discrimination on the ground of racial, religious or political background, or beliefs. The Senate Academic Appeals Committee set aside the allegations of discrimination and dealt only with the complaints about assessment procedures. The appeals were upheld on the basis of insufficient evidence that the College had observed due process in the assessment procedures in the print making course. As the allegations of discrimination could result in a formal allegation of academic misconduct, the conduct of a preliminary investigation was delegated to the Deputy Vice Chancellor. In this investigation the two students were interviewed and the Complainant was accompanied by a legal officer and the Equal Opportunity Co-Ordinator was present for part of the meeting. The Vice Chancellor found that the allegations were not proven. The result of the Senate Appeal Committee inquiry was not handed down until July 1992. In the meantime the Complainant alleges from the commencement of semester two, 1992, the Complainant was not allowed to enrol in the first semester or the second semester of 1992, but was permitted to attend classes and to participate in assignments. In other respects during this period he was ignored by the staff who paid no attention to him and gave him no assistance. Ultimately his work was assessed for this semester and his marks were sufficient to successfully complete the academic year. The Complainant related to other examples of less favourable treatment of him which occurred after the decision to reject his application for admission to the 1994 Masters Course. The Complainant also states he was continually treated unfavourably by members of the academic staff of the faculty from 1991 to December 1993. The complaint under s.50 of the Act relates to the rejection of the application of the Complainant to be admitted to the 1994 Master of Visual Arts course and alleges that the rejection reflects the adverse attitude taken against him by the academic staff of the faculty following his allegations of discrimination to the Senate Appeal Committee and to the Vice Chancellor in 1992 and continuing from that time up to and beyond the decision to reject his application. The complaint includes the allegation that the decision to reject his application was not taken at first instance based solely on his tertiary qualifications but involved or was influenced by members of the academic staff of the faculty who continued to regard him as a trouble-maker and bore a grudge against him. The Tribunal has considered the evidence produced at this stage of the inquiry. In the view of the Tribunal that evidence contains sufficient material to suggest that it would be premature to dismiss this complaint for lack of a capability of establishing sufficient substance to justify a finding in favour of the Complainant. It is possible that the Complainant can satisfy the Tribunal on the balance of probability based on direct evidence or by inference that the complaint is substantiated. It should be stated in expressing this view that except for the evidence of the College Secretary, the Tribunal has not been presented with evidence by the Respondent. The Tribunal does not accede to the application by the Respondent to dismiss the complaint of victimisation at this time. The Tribunal orders that the complaint of discrimination on the ground of race be dismissed but makes no order for costs on this application and it makes no order in relation to the complaint of victimisation. 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