Yu v University of Newcastle (No 2) [2012] NSWADT 201

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Yu v University of Newcastle (No 2) [2012] NSWADT 201 Hearing dates: 2 and 3 August 2012 Decision date: 28 September 2012 Jurisdiction: Equal Opportunity Division Before: C Huntsman, Judicial Member E Hayes, Non Judicial Member A Lowe, Non Judicial Member Decision: The Tribunal dismissed the application Catchwords: Racial discrimination in education; use of words "speak English"; whether Applicant treated less favourably because of his race; causation; whether inference should be drawn from evidence Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Hollows v Macquarie University [2009] NSWADT 23 (6 February 2009) Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 Category: Principal judgment Parties: Fu Yu (Applicant) University of Newcastle (Respondent) Representation: Counsel Mr Warren (Respondent) Fu 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, by the University of Newcastle, the Respondent, whilst enrolled as a student. The complaint was referred by the President of the Anti-Discrimination Board to the Tribunal. Prior to the hearing of the current matter, the Respondent applied to the Tribunal, pursuant to section 102 of the Anti-Discrimination Act 1977 (the Act), for orders that the application be dismissed. The Tribunal declined to dismiss the application (refer [2011] New South Wales ADT 277.) 2The Applicant's case is detailed below, however, in summary the Applicant's case is that he was discriminated against by the University, when, Professoressor Rasiah, a lecturer in the employ of the University, failed to provide examination results to the Applicant over a seven-month period. The Applicant states that this was differential treatment of him by Professoressor Rasiah because of his race. The Applicant claims that subsequent examination results were adverse to him, because of Professoressor (Professor) 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 Professor Rasiah's involvement in the oral component of the examinations. He doubts the independence of the external marker. The Applicant asserts 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 Professor 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 Professor Rasiah was not involved. The Applicant states in his written material that he relies on his educational and work history as relevant matters.