Yu v University of Newcastle [2011] NSWADT 277

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Yu v University of Newcastle [2011] NSWADT 277 Hearing dates: 9 September 2011 Decision date: 24 November 2011 Jurisdiction: Equal Opportunity Division Before: Judicial Member Huntsman Decision: The Tribunal declined to dismiss the complaint pursuant to s102 of the Anti-Discrimination Act 1977 Catchwords: Racial discrimination; use of words "speak English"; whether case should be dismissed on basis is frivolous, vexatious, misconceived or lacking in substance; whether the conduct alleged, if proven, would not disclose the contravention of a provision of the Act or the regulations Legislation Cited: Sections 4A, 7, 17, 92, 102 of the Anti-Discrimination Act 1977 Cases Cited: Dutt v Central Coast Area Health Service [2002] NSWADT 133 Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 Category: Interlocutory applications Parties: Fu Yu (Applicant) University of Newcastle (Respondent) Representation: Counsel Mr Warren (Respondent) F Yu (Applicant in person) Hicksons Lawyers, (Respondent) File Number(s): 111017

reasons for decision

Background 1Dr Fu Yu, the applicant, made a complaint to the Anti-Discrimination Board that he was discriminated against for reason of his race, whilst enrolled as a student, by the University of Newcastle, the respondent. The complaint was referred by the President of the Anti-Discrimination Board to the tribunal. The respondent, the University of Newcastle, applied to the tribunal for orders that the complaint be dismissed, pursuant to section 102 of the Anti-Discrimination Act 1977. Directions were made for the filing of material by the parties and the application for dismissal was heard by the tribunal. On 9 September 2011 the tribunal reserved its decision and now provides reasons for decision and orders. 2The applicant's case is set out in written material filed with the tribunal and in detailed documents provided to the Anti-Discrimination Board (as attached to the summary of complaint provided by the President of the Anti-Discrimination Board). Considerable detail was provided in material filed by the applicant under cover letter received by the tribunal on 16 June 2011, including points of claim and attached documents (40 attachments); further material filed on 27 July 2011 (attaching statements by other students) and submissions in relation to the current application under s 102 of the Anti-Discrimination Act 1977 were received by fax on 31 August 2011. In particular, in these submissions the applicant relied on the fact that the respondent had filed material in relation to the application for summary dismissal, on 18 August 2011 rather than 17 August 2011, as required by the tribunal's directions of 3 August 2011. 3The respondent provided written submissions in support of the application for summary dismissal, dated 17 August 2011. The respondent also relied on the respondent's submission and points of defence filed on 15 July 2011. In summary the respondent asserts that the applicant has provided no evidence that he was discriminated against on the grounds of his race. 4The applicant's case is detailed below, however, in summary the applicant's case is that he was discriminated against by the University, when a lecturer in the employ of the University, Dr Rasiah, failed to provide examination results to the applicant over a seven-month period. The applicant states that this differential treatment of him by Dr Rasiah was because of his race. The applicant believes also that subsequent examination results were adverse to him, because of Dr Rasiah's discrimination on the grounds of the applicant's race. The respondent denies the applicant's claims and provides evidence of independent remarking of the applicant's exams. The applicant questions the remarking process and maintains it is tainted by Dr Rasiah's involvement in the oral component of the examinations. The applicant states his belief that the reason for the adverse treatment of him by the University was discrimination on grounds of his race. He relies on a statement made to him by Dr Rasiah to "speak English". In relation to this Dr Fu Yu notes that he has graduated with a Masters of Philosophy Studies at Griffith University, Australia, conducted in English; he obtained a PhD at the University of Otago, New Zealand, studied in English; he obtained his IELTS test results in IDP Education, Australia; and he works as a healthcare interpreter for Hunter New England Health, New South Wales Health, Australia; has work experience as a postdoctoral hospital scientist in a New South Wales hospital; and provides his results in other courses undertaken with the respondent where Dr Rasiah was not involved. The applicant states in his written material that he relies on his educational and work history as relevant matters.