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. Brief summary/Chronology of Facts 3The Applicant was a student in the Masters of Pharmacy Course at the University of Newcastle (the University). The period when he alleges he was discriminated against was 2008 and 2009. In trimester 1 2008 the Applicant studied the courses PHAR 6008 and PHAR 6009. He failed the examinations and was given a supplementary exam through special consideration. He sat the supplementary exam after the next trimester commenced, in around June 2008. A University lecturer, Professor Rasaih, delayed in marking and/or crediting marks awarded for a supplementary exam, for seven months, from June 2008 until January 2009. Professor Rasaih awarded the Applicant pass grades for the courses on the basis of the results in the supplementary exams and this was advised to the Applicant in trimester 1 2009. 4The Applicant studied the courses PHAR 6221, PHAR 6222 and PHAR 6223 in trimester 2, 2009. 5The Applicant was allowed a supplementary exam for medical reasons on 25 September 2009 for course PHAR6221 (the dispensing component of the course) but was refused a further supplementary exam. 6The Applicant sat for exams for the courses PHAR 6222 and PHAR 6223 in trimester 2, 2009, being oral and written exams, and he failed the exams. The Applicant appealed the result on 28 August 2009 on the grounds that the marks did not reflect the quality of the work submitted. The University Faculty and Appeals Committee (the appeals committee) determined on 16 September 2009 that there be external remarking of the exams. The exams were subsequently re-marked by an external marker who awarded a lower mark than the mark initially awarded by the University. By letter dated 26 October 2009 the University advised the Applicant of the result of the external remarking and that his final result in the courses remained a fail mark. 7In a meeting between the Applicant and Professoressor Rasiah on 1 September 2009, to discuss examination results, Professoressor Rasaih stated "speak English". 8The Applicant was subject of disciplinary proceedings for sending an email in September 2009 to all students referring to University marking and Professoressor Rasiah. The Applicant states his exam results for the course PHAR 6221 were posted to all students by an email from Ms Cooper (of the University) on 5 October 2009 in breach of his privacy (this is contested by the University). The Applicant's case 9The 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 on 16 June 2011, including points of claim and attached documents (attachments 1 - 12 and 14 - 40); and further material filed on 27 July 2011 (attaching statements by other students) . The Applicant provided a further witness statement (Dr Pham) undated and filed with the Tribunal on 8 February 2012. The Applicant gave oral evidence to the Tribunal, Dr Pham was not required for cross-examination. 10In written submissions the Applicant set out his case under four main grounds. Firstly, he states that he suffered serious discrimination when Professor Rasiah did not release his examination results for 7 months, even though the Applicant had followed up with Professor Rasiah many times after the examinations. Secondly, he says there was dishonest behaviour when Professor Rasiah claimed the exam papers for the subjects PHAR6008 and PHAR6009 were marked earlier than they actually were. Thirdly, the Applicant claims a breach of ethics and human rights, the particulars of which involve the University forcing the Applicant to attend an examination while certificates by a medical practitioner showed him to be sick and unfit, and awarding him a fail grade without considering the medical condition; and by the University not allowing the Applicant to look at his examination papers and the allocation of marks, even when the examinations and marking were discovered to have academic and administrative issues. Fourthly, the Applicant states he suffered breach of privacy when the University published the Applicant's examination results on BLACKBOARD which meant that anyone enrolled in the course could see the results. At the hearing the Applicant focused on two main issues - the seven month delay in the marking of his exams and the alleged unfair marking and unfair treatment by Professoressor Rasiah. 11The Applicant states that his results from the supplementary examinations for the subjects PHAR6008 and PHAR6009 were not released by Professoressor Rasiah, senior lecturer, course coordinator and examiner, for 7 months from 21 June 2008 until 21 January 2009. During the seven-month period he contacted Professor Rasiah many times about the examination outcomes while he was completing a course in pharmacy management on campus in trimester 2 2008; and he also contacted Professor Rasiah regarding the examination results on many occasions in trimester 3 2008. The Applicant states that instead of responding to his requests for the examination results Professor Rasiah gave the Applicant his personal mobile phone number and asked the Applicant to contact him after hours. The Applicant states that when he telephoned Professor Rasiah in January 2009 Professor Rasiah informed him that he had not finished marking the exams as yet. The Applicant enrolled in three courses (PHAR6221, PHAR6222 and PHAR6223) in trimester 2, 2009, following pass grades awarded for PHAR6008 and PHAR6009 in trimester 1 2009. He was delayed in progressing his degree by the delay in examination results. 12The Applicant asserts that on 13 August 2009 he was given less than 30% of the examination questions, during the oral examinations, for the courses PHAR6222 and PHAR6223, both of which were conducted by Professor Rasiah and this caused him to be given fail grades in these subjects. He appealed the results for courses PHAR6222 and PHAR6223 at the University administration office and requested an independent re-mark of his examinations. On 28 August 2009 he found that for the three subjects in which he was enrolled, he was awarded one incomplete for subject PHAR 6221 and two fails (PHAR6222 and PHAR6223). During a phone call with Ms Joyce Cooper, course coordinator of PHAR6221, he was informed that the incomplete component of the course was the Dispensing Practice Exam. He says he was told that he should seek feedback from Professor Rasiah and make an appointment. 13The Applicant states that on 1 September 2009 he met with Professor Rasaih in his office at the University of Newcastle. He states that Professor Rasiah said he was not going to go through the exam paper. He said Professor Rasiah repeatedly asked the Applicant whether he had any special circumstances to be considered. He says that while they were discussing the examination results Professor Rasiah demanded the Applicant "speak English". 14The Applicant states that in relation to the written examination for the course PHAR6222 he was awarded 42 marks out of 72 marks in the section marked by another marker, but only five marks out of 28 marks in the section marked by Professor Rasiah. The Applicant details the attempts he made to ensure there would be independent remarking. The Applicant also gives details about accessing the University Blackboard site and disciplinary proceedings which ensued. 15The Applicant describes becoming unwell with whooping cough and having a medical certificate when his supplementary exam for the dispensing practice exam for the course PHAR 6221 was scheduled. He said that the University refused to reschedule the supplementary exam. 16On 23 September 2009 the Applicant received correspondence from Ms Gould, Deputy Vice Chancellor, which stated that the remarking for the courses PHAR6222 and PHAR6223 had been completed and that he was enrolled in one course currently. On 24 September 2009 the Applicant was certified not fit to work. On 25 September 2009 he attended the dispensing practice exam. On 28 September 2009 the Applicant handed in the medical certificate which he says was required under University policy within three working days. On 6 October 2009 he received advice that he had failed the dispensing practice exam and as a result, the course PHAR6221. He was thereby unable to continue the subsequent courses in semester 3 2009. He states this communication was posted on the University messenger site where it could be seen by anyone in the school. In October 2009 a discipline committee hearing was held in relation to the Applicant's previous alleged misconduct of sending e-mails. On 8 October 2009 he received advice from student administration that he had been charged full fees for the three courses in which he had enrolled, which were to follow on from the courses PHAR6221,6222, 6223. 17In presenting his case at the hearing the Applicant focused on the process of the examination and the remarking of his examination, the seven-month delay by Professor Rasiah, and the conversation where Professor Rasiah said "speak English". 18It was put to the Applicant that he had applied for special consideration for course PHAR6008 and PHAR6009 late, and therefore by the time he sat that the supplementary exam the next semester had started, and the Applicant agreed this was so. The Applicant agreed that he could have been required to lodge an appeal but instead was allowed to re-sit the exam by being given special consideration. When asked about Professor Rasiah's statement that he advised the Applicant to follow a progression plan for his degree, the Applicant stated that he wanted to study his degree as soon as possible, and therefore did not follow the advice. It was put to the Applicant that Professor Rasiah's behaviour of allowing him special consideration and not requiring him to appeal after he had been assaulted in the examination period, in relation to course PHAR6008 and course PHAR6009, was not consistent with racial discrimination against the Applicant. The Applicant did not agree with this proposition. The Applicant believed that the opportunity to sit the supplementary exam was given to him by the Committee and not by Professor Rasiah. 19In relation to the delay in the marking of his supplementary examination for the courses PHAR6009 and PHAR6008, the Applicant notes that it had always been the Respondent's explanation that this was due to administrative oversight, yet now he is told that Professor Rasiah did mark the paper fairly promptly. He says this is further evidence of the unreliability of the University's marking processes and evidence that their processes are arbitrary and unfair. The Applicant maintained that he asked Professor Rasiah for his examinations results for courses PHAR6008 and PHAR6009 on many occasions, both before the census date (the date on which a student can withdraw from the course and not have a fail mark recorded) and after the census date, and did not receive his results. He maintains that without results he could not progress his studies. 20In relation to the original exam paper for course PHAR 6222 the Applicant states that a comparison of the copy sent to the external examiner (the "whited out copy" where all notations for original marks given are removed) with the original exam paper reveals that an additional four marks have been added - he states that these marks were not there originally, there was only a mark of 2. He states that the extra 4 marks, to bring the mark to a total of 6, were added. The Applicant states that he was shown his exam paper when he was with Professor Rasiah in Professor Rasiah's office in September 2009 and the mark was only 2 ( not 2 + 4, to a total of 6 ). The Applicant states that this exam paper indicates that the University intentionally changed his marks. He states that it makes clear that all the marks are unreliable and incorrect. The Applicant maintained that his exam had been changed after the external remark, and before it was shown to the Tribunal. The Applicant also questioned how the University could prove that the external remark was independent and how the Tribunal could be certain of this. 21The audio recording of the oral exam was played during the Tribunal hearing. Identified on the audio recording were the voices of Professor Rasiah and the Applicant. After listening to the audio recording it was put to the Applicant by the Respondent's representative that Professor Rasiah during the examination prompted the Applicant with an answer on at least 25 occasions and the Applicant agreed. It was put to the Applicant that by prompting, Professor Rasiah was trying to assist the Applicant to give the right answer, and the Applicant did not agree. It was suggested that all the available examination questions may not have been asked of the Applicant because of his slowness with the answers to the questions put, and the Applicant agreed with this proposition. The Respondent stated that the other person present during the oral examination, Ms Melinda Phang, was of Chinese ethnicity and the Applicant responded that he did not know, however agreed she was of Asian appearance. He agreed that she did the marking while Professor Rasiah asked the questions. It was put to the Applicant that upon listening to the audio recording Professor Rasiah sounded calm and helpful towards the Applicant. The Applicant did not agree however did agree that Professor Rasiah prompted him when he didn't answer correctly. It was common ground that the recording of the oral exam was about nineteen and a half minutes duration. 22Under cross-examination the Applicant agreed that he failed the exam, and when it was externally remarked by Professor Everett he had been given a lower mark than the original mark awarded by the University. He did not suggest that Professor Everett had a bias against him. He also observed that all the paperwork relating to the exams, including the questions which were to be asked in the oral exam, were in evidence before the Tribunal, and it was clear that he was not asked all of the questions. Therefore he was not given a good opportunity to obtain a good result. 23Dr Pham, in his second written statement, details some of his experiences as a student at the University. He states he never had trouble until the second semester of his second year when Professor Rasiah took over a subject. He had to repeatedly repeat practical sessions of assessments because of the stress he was experiencing due to Dr Rasiah's "biased" assessment. He said some students were allowed extra time to do such sessions, some students had made the same minor mistakes as he did in their work but were fine. He believes Professor Rasiah assesses the student's performance based on his subjective, personal opinion, rather than objective and consistent criteria: "He even asked me if I speak English at home when we met discussed about my assessment papers. Furthermore I am from an Asian background and I may have an accent speaking English.... Dr Rasiah had and still does have a lot of power in deciding whom he gives a high pass or fail grade to, because he controlled two subjects in this course....... Therefore, Dr Rasiah can pass or fail a student at his mercy." 24Attached to the Applicant's further material (exhibit A2) was a letter of 4 July 2011 from Anna Braithwaite, University counsellor. The letter states: "I wish to confirm that Fu consulted the University Counselling Service on four occasions in October 2009 - 1, 8, 14 and 26. Fu was referred to me by his family General Practitioner for treatment of stress related to his University studies. At that time Fu had received news he had failed a number of courses and would have to wait 12 months before resuming his studies. Fu was very distressed and with sleep disturbance, low mood and difficulty in thinking clearly. I understand he was also suffering from whooping cough at this time. Fu had also begun both an appeal against his marks and an internal complaint process about a particular academic. Fu was also facing a disciplinary hearing - I understand concern was raised about use of the student e-mail system to raise concerns about an academic staff member. All of these events were very distressing for Fu and lead to an understandable stress reaction. I have had no further contact with Fu until today when Fu consulted me today about the preparation of this letter. Today I have encouraged Fu to resume his studies as he is very close to completing his Masters of Pharmacy degree either at this University or another. Please do not hesitate to contact me if you require further information". 25A copy of the e-mail of 4 September 2009 by the Applicant to students at the University is attached to the Applicant's materials (exhibit A2). In the e-mail he states: "Dear Students. As many ex-students and some current students in the Masters of Pharmacy have experienced, I am having serious issues on my final exam results, where all these issues only came from Rohan Rasiah, after checking my exam papers. You might have similar problems previously and now. You may find out a significant difference in your academic records. Use your right to protect yourself. Good luck to you all. " 26The Applicant provides two reply e-mails which appear to be from other students. One thanks the Applicant for having a word and supports him in his "brave comments"; the other student says: " I also have some doubts in relation to how we performed in all the assignments and exams, because we never get any response back about the assignments and exam marks individually, but they only give you the final mark overall for the course." 27Neither student in their statement refers specifically to Professor Rasiah, nor do they specifically allege that they have experienced unfairness in the University marking. The Respondent notes that the use of the student e-mail (whereby the Applicant made references to Professor Rasiah and broadcast to all students in September 2009) was subject to a referral to the University's student discipline process. The University maintains the disciplinary process is one which is transparent and independent. The Applicant provided no evidence to contradict the University's submissions on this issue. In the hearing the Applicant did not focus on the issue of this e-mail and the disciplinary proceedings. The Respondent's case 28The Respondent relied on the Respondent's submission and points of defence filed on 15 July 2011 and attachments thereto, the statement of Professoressor Rasiah who also gave oral evidence at the hearing; and examination papers and other records for exams sat by the Applicant. The Respondent also relied on an audio recording of the oral exam of the Applicant for courses PHAR6223 and PHAR6222. 29In his written statements Professor Rasiah details his position as Associate Professor of the School of Biomedical Sciences and Pharmacy of the University of Newcastle. He was the course coordinator of the courses PHAR6008 and PHAR6009 during trimester 1, 2008. During this period he only supervised the dispensing component in PHAR6009 Pharmacy Practice 4. These courses were part of the Masters of Pharmacy course in which the Applicant was enrolled as a student. In trimester 1 2008 the Applicant failed the subjects PHAR6008 and PHAR6009 and Professor Rasiah had to consider a request for re-examination lodged by the Applicant on or about 19 May 2008 in respect of his results. Professor Rasiah states that as program convenor he was made aware that the Applicant was the victim of an assault during the time he was sitting the examinations for the two courses and after consulting with colleagues exercised discretion to allow the Applicant to be re-examined in both subjects. The approval was communicated to the Applicant on 21 May 2008. 30Professor Rasiah says he discussed a progression pathway with the Applicant for further courses of study when the Applicant applied for the remark of the courses PHAR6008 and PHAR6009, in a meeting in around 16 May 2008. Professor Rasiah notes that the Applicant failed the course PHAR6004 Pharmacy Practice 2 in 2005 and that this course was co-ordinated by Dr Newby. This failure affected his study progression in so far as he had not completed the pre-requisite course for trimester 3, 2005. The Applicant had been placed in a new progression plan. The Applicant was granted leave of absence from 30 January 2006 until he recommenced studies in trimester 2, 2007. Professor Rasiah said he had a discussion with the Applicant on or around 16 May 2008 and he advised the Applicant to undertake the courses that do not have pre-requisites attached to them as he progressed. He states he counselled the Applicant about his decision to enrol in the subsequent courses PHAR6222 and PHAR6223 in trimester 2, 2009. He states the Applicant did not take his advice as to changing his enrolment to ensure that the pharmacy practice pharmacotherapeutics courses are undertaken concurrently and in the final year of the program, instead, the Applicant continued with his enrolment in the courses PHAR6008 and PHAR6009 and this meant it was 12 months until he read the subsequent courses PHAR6222 and PHAR6223 (which follow on from the courses PHAR6008 and PHAR6009). Professor Rasiah recalls that on or about 16 May 2008 he discussed the Applicant's examination results for PHAR6008 and PHAR6009 with the Applicant. He believes he advised the Applicant that his written examination showed a lack of knowledge and displayed poor written English skills. 31He states this was an honest assessment by him of the quality of the Applicant's work and his intention was to provide constructive criticism of his examination answers as was requested by the Applicant. He says that during this meeting he also suggested that the Applicant may be able to sit a supplementary examination subject to approval by the Head of school. Professor Rasiah states that the decision to allow the Applicant to re-sit his examinations for courses PHAR6008 and PHAR6009 was not strictly in accordance with the University's policy because the school did not require the Applicant to submit a full appeal with the Faculty Appeals and Progress Committee. 32The Applicant did not have access to the re-examination marks for approximately 7 months, in the period June 2008 to January 2009. Professor Rasiah believes he marked the examinations promptly after the Applicant sat for the further assessment, but says that due to inadvertent administrative oversight the Applicant did not receive his revised results for a prolonged period. Professor Rasiah accepts that this delay may have had a negative impact on the Applicant's ability to progress his studies at that time but states that due to the timing of the Applicant's application for special consideration and subsequent sitting of the special examination in trimester 2, 2005, late enrolment in the subsequent courses in trimester 3, 2008, would not have been possible. The results of the supplementary examinations were that the Applicant was awarded a pass for subjects PHAR6008 and PHAR6009. Professor Rasiah denies that the delay in supplying the Applicant with his results was motivated by any bias against the Applicant on the grounds of race or otherwise. He notes that they had decided to allow the Applicant to re-sit the exams for the courses PHAR6008 and PHAR6009 because they were sympathetic to his personal circumstances having suffered physical assault. He recalls the Applicant only raised an appeal after he had already failed those subjects, and no application for special consideration had been made within three days of the assessment being carried out, which would have been in accordance with the University's policy. 33Professor Rasiah does not recall how many times the Applicant approached him in the period June 2008 to January 2009 to request his examination results nor does he recall the exact circumstances where he supplied his contact mobile phone number to the Applicant, but agrees that an entry in the Applicant's diary was made by him. He notes his mobile phone number is readily available to all students. Professor Rasiah explains that during the relevant period he had a significantly higher teaching and administrative load. In his oral evidence he stated that there was one other student where he had delayed results for up to 6 months, and also noted that it was acknowledged in the school that he was not as good and prompt with administrative tasks as a number of his colleagues. 34Professor Rasiah notes he was course coordinator for the course PHAR6222 during trimester 2 2009 and that the Applicant was a student in the subject. He notes the Applicant was at the same time a student in course PHAR6223 for which Dr Tooney was course coordinator. Professor Rasiah conducted the oral examination components for courses PHAR6223 and PHAR6222 on or about 13 August 2009. Also present during the oral examination was Ms Phang. The oral exam was for the courses PHAR6222 and PHAR6223 and also course PHAR6221. Professor Rasiah identified the audio recording of the examination which was played to the Tribunal during the hearing. Professor Rasiah stated that the oral examination was in the format where each student was allocated a certain time period (8 1/2 min) to answer a series of questions and that each student who sat the exam was allow the same period of time to respond to the series of questions. Professor Rasiah notes the Applicant's allegation that he only put to him 30% of the questions available to each student. He states that during the time allowed he put to the Applicant a series of questions, and notes that it is a matter for the student to effectively use the time allowed to complete the task, and that this approach is a consistent approach with oral examinations in the program. He notes during the oral exam for the Applicant he did try to prompt the Applicant to allow him the opportunity to perform his best in the examination. He states he did not withhold questions from the Applicant and asked as many questions as he could while also allowing the Applicant time to answer as well as he could. 35Professor Rasiah states that the Applicant was one of eight students who did not pass the oral examination on 13 August 2009 and that he failed courses PHAR6222 and PHAR6223 in trimester 2, 2009. He lodged an appeal against his final marks for these subjects on 29 August 2009. The Faculty Programs and Appeals Committee resolved on 16 September 2009 to allow a remark of the Applicant's taped oral assessment and his written examination papers for the subjects PHAR6222 and PHAR6223 by an independent marker. The appointed marker was Professor Everett of the University of Western Australia. Two other examiners were contacted but were unable to undertake the remark. The academic to undertake the remark of the two papers was appointed by the Head of School. He notes Professor Everett concluded that the performance of the Applicant was poor and Professor Rasiah is aware that the overall remark was lower than the Applicant's original mark. Professor Rasiah notes that he was not part of the Faculty Progress and Appeals Committee and had no input into the decision made in relation to the Applicant's appeal. 36Professor Rasiah agrees that he was contacted by the Applicant around 1 September 2009 to arrange a meeting to discuss his examination results. He says he offered the Applicant the opportunity for someone to sit in on the meeting. He says that he went through the paper with the Applicant. Professor Rasiah says" " I admit that I asked the Applicant to read the question aloud in English. I said this when I had difficulty comprehending what the substance of the Applicant's question was. I deny that my comment was racially discriminatory." 37He says that during the conversation about the questions in the examination paper he prompted the Applicant to give him responses to the questions and asked him details like in an oral examination. This is his usual process in such discussions. He states that during the discussion about questions in the examination, the Applicant referred to a condition, of a child presenting with an itchy rash, as "atopical" dermatitis: I did not understand what condition the Applicant was referring to so asked him to "speak English". There is a complaint called atopic dermatitis which is the result of an allergic reaction. There is no such complaint as "atopical dermatitis". I deny that my response was racially discriminatory." 38Professor Rasiah agrees he said words to the effect that he was confident that sending the paper for remarking would return the same result. He states this was being honest with the Applicant about what he believed would occur on the external remark. Professor Rasiah notes that he was not responsible for course PHAR6221 and that his colleague, Ms Cooper, delivered the oral examination component of this course. 39Professor Rasiah notes the evidence given by Dr Pham who was also a student during the period 2005 - 2007. He states that Dr Pham's performance in dispensing was consistently poor and his written sheets were not at an appropriate level to be acceptable. He disputes Dr Pham's assertion that he told him that other students' results were fine. He notes the statement by Dr Pham "he even asked if I speak English at home". Professor Rasiah states his belief that this question is appropriate for a student from a non-English-speaking background as it is essential that graduates can demonstrate an appropriate level of both written and oral communication skills in English. This is because the students will ultimately be communicating with the public at large, receiving information from the public and advising on the appropriate and safe use of potentially dangerous drugs. He said his comment to Dr Pham was meant in a constructive sense to encourage him to develop sound spoken English skills. 40Professor Rasiah states that he performs his duties under the University policies, and this is the case also in terms of marking students. He notes relevant guidelines and that there are at least three other academics that oversee the final grade of the student in a course. 41In cross-examination by the Applicant Professor Rasiah stated that he could not recall being asked about his results by the Applicant, in relation to the marking of the supplementary exam and the seven-month delay, although he did recall the Applicant speaking to him in January 2009. He does not recall receiving requests by e-mail from the Applicant and also advised that he checked all of his e-mails and found none. He believes he marked the Applicant's supplementary exam as soon as he could, but that he failed to put the results on the computer spread sheet and to give those to the administration. 42The Applicant put to Professor Rasiah that he asked him in January 2009 about the marking of his exam and that Professor Rasiah had said that he hadn't finished marking yet. Professor Rasiah responded that he could not recall the conversation, however if he had said this he may have been referring to the fact that he had not sent the results through to administration as he had not put the results on the spread sheet. The Applicant asked Professor Rasiah whether the other seven students who had failed the exam had been given a supplementary exam, and Professor Rasiah could not recall. Professor Rasiah noted that while eight students may have failed the oral exams the Applicant failed the subjects on all combined criteria, not just the oral exams. 43Professor Rasiah agreed that in relation to the exam paper entitled "case study 3 and 4", case study 3 was marked by Dr Tooney and question 2 of case study 3 and case study 4 were marked by Professor Rasiah. Professor Rasiah indicated that he does not put markings on the exam paper in the same way as Dr Tooney, because there is a need where external marking is to occur to whiteout the marks, so Professor Rasiah finds it appropriate to only put his marks down the left-hand margin rather than throughout the text of the exam. He also only writes marks in the margin of the exam paper where there are internal subsections to a question, otherwise he just writes the result on the front sheet of the exam paper (a blue sheet). He noted Dr Tooney marks differently. The Applicant asked a number of questions, as it was the Applicant's contention that a "6", written inside a circle on the front of the exam paper was added after the exam went to the external marking. He believed this could be a conclusion drawn by contrasting the original exam paper and the exam paper as it was whited out before going to the external marking. Professor Rasiah's evidence was that the 6 represented 2+4 as written on the front of the exam paper and those annotations would have been there at the time of marking the paper. However it was also possible that he added the 4 after his discussion with the Applicant in September 2009 if he had formed the view that he had overlooked a mark for an internal part of a question which he had written in the left-hand margin. He stated that upon examination of the exam paper in this case, this was a possibility, as there was an internal part of the question where the number 4 was written in the margin. Professor Rasiah was clear that the mark was included in the Applicant's initial mark, and not added to the exam after it went to the external marking. The Respondent's documentary evidence included a document (annexed to Respondent's points of defence , documents attached to the Memo to the Head of School from the Registrar's office of 4 September 2009 , with a page stamp 000233) which showed that the 6 mark was included by the University as part of the Applicant's exam result, and this was the position before the exam was sent to external marking. 44Professor Rasiah was asked some questions about the relevance of English competency to the course Masters of Pharmacy. He notes that the current requirement of registration under the national registration scheme is competency in oral and written communication. He states that previously there was such a requirement as well. He noted that for the safety of dispensing medication and drugs it is important that graduates are able to speak clearly in English. Under cross-examination by the Applicant Professor Rasiah indicated that where he did not understand a student he might ordinarily say the words "speak clearly" or "speak more loudly" it would not be usual to say "speak English". Professor Rasiah also confirmed that his role includes suggesting names of potential external examiners/markers, however in this case he is aware that the suggested people were not available. He has no role in selecting the external examiner. 45The documentary material provided by the Respondent includes documentation relating to the decision of the Faculty Progress and Appeals Committee to approve a re-mark by an independent external marker; the examination papers, and the correspondence by e-mail from Ann Lindner to external academics seeking someone to do the re-mark. It is noted that the first two academics approached declined or were unavailable. Ann Lindner is a member of the teaching support unit, School of Biomedical Sciences And Pharmacy, University of Newcastle. The Respondent also provided copies of the results of the remarking by Professor Everett. The comments made upon remarking by Professor Everett included: "mostly general comments made by student not necessarily applicable to the case, knowledge limited and comments under developed...... Student has also not read the exam question, and has simply listed all possible drug therapies...... Understanding overall very poor and general comments to the patient are made without consideration of the patient's circumstances [these comments by Professor Everett were in relation to case study 1, section B course PHAR 6222]. [Other comments included - ] "understanding of modes of action very basic and missed the key difference....Missed point about partial and general....Poorly answered and missed the critical points about the basis for phenytoin toxicity....Calculation wrong and dose recommendation too low...... [These comments were in relation to case study 2, section B, course PHAR 6222]. [Further comments in relation to case study 4 - ] "very poorly answered all round. No indication that that the problem is likely to be due to the antibiotic. No questions asked of the patient that would derive information relevant to the solution of the problem....No antihistamine recommended..." [Other comments made, in relation to course 6223 were - ] "basic appreciation only of signs and symptoms....No risk Professoriles presented with the therapies. Non-pharmacological therapies suggested are too general and not specific....Adverse effects consideration superficial. Other pharmacological agents not considered". [In question 2 of case study 3 the Applicant achieved a better mark than he did for most of the other questions and the comment was: ] "reasonably well answered, information presented chaotically however but most there. Additional testing poorly covered and no reason given." [In relation to case study 4, course PHAR 6223 it is stated - ] "missing point of question and instead provided indications for prednisolone therapy - no signs and symptoms of treatment with the drug....Little understanding of range of problems associated with abrupt cessation of prednisolone." 46Documentation in relation to the external remarking of courses PHAR6222 and PHAR6223 indicate that after the external remark the Applicant was still awarded a fail mark, and the mark awarded by the external marker was lower than the mark initially awarded by the University. 47In relation to the supplementary dispensing exam the Applicant was one of eight students who sat the supplementary exam for the dispensing component of the course. The supplementary exam was scheduled for 17 September 2009. The Respondent notes that the Applicant first provided a medical certificate on 11 September 2009, dated 9 September 2009, that covered the period 9 September 2009 to 14 September 2009. It is stated that this did not cover him for the exam date of 17 September 2009 and he was asked to obtain another certificate. In any event he was given the benefit of the doubt and his exam was rescheduled for 25 September 2009. The exam on 25 September 2009 was supervised by staff other than Professor Rasiah who was also not involved in the marking. A new medical certificate was submitted by the Applicant on 28 September 2009, three days after he sat the rescheduled exam, and the certificate was dated 24 September 2009. University policy provides that a student will be able to apply for consideration of special circumstances on only one occasion, unless there are exceptional circumstances. The Respondent maintains that if the medical certificate had been provided earlier, perhaps the Applicant may have been considered for exceptional circumstances. However, it remains the case that a further rescheduling, which would have been a third accommodation, may, or may not have been granted. 48The Respondent's documentary evidence includes an internal transcript of academic record which reveals the marks obtained by the Applicant in courses between 2005 and 2009. The transcript reveals a fail mark in 2005 for the course PHAR 6004 and other results for pass grades awarded in various courses achieving marks of 60, 51, 59, 53, 57, 51, 50, and 58. The transcript also reveals some higher marks obtained by the Applicant including credit and distinction grades (for marks of 72, 77, 77, 78, 74 and 72). The Respondent states that in the 13 courses undertaken by the Applicant between 2005 and 2007, prior to Professor Rasiah's involvement, the complainant attained mixed results, failing one course and attaining marginal results (between 50% and 60%) in five others. The grades for the courses PHAR6008 and PHAR6009 were 51 and 50 respectively (these were the courses where the Applicant was granted supplementary exams and where there was the delay of seven months in Professor Rasiah marking the exams). 49The Respondent denies the assertion by the Applicant, that when Ms Joyce Cooper sent him an e-mail on 5 October 2009, advising he had failed the rescheduled supplementary exam, this was copied to 200 people. The Respondent states that this was investigated by the University's Information Technology Department and there was no breach of privacy as alleged and that the Applicant was informed of this by the then acting Head of School, Associate Professor Philip Bolton, on 13 April 2010. The Applicant did not contradict this part of the Respondent's material in the hearing. There was no evidence presented by the Applicant to the Tribunal to evidence the sending of this e-mail to other people, let alone 200 other people. The Respondent submits that the Applicant was provided with opportunities to provide evidence of other people receiving this e-mail and has not done so. Parties' submissions 50The parties made oral submissions to the Tribunal. The Applicant submits that because he has studied at postgraduate level previously at a University in Australia and in New Zealand he has some experience of the usual processes of a University, and he has never before experienced such treatment as he received at the University of Newcastle. He believes he was treated differently from other students by the University because of his race. He suffered a detriment by being unable to progress his studies due to the delay in the marking of his supplementary exam. It is his belief that he did not experience any difficulties in completing the oral exam but what occurred was that when compared with the experience of other students, he did not have an equivalent chance to progress his studies or pass exams because of the problems caused by Professor Rasiah. 51The Applicant noted that when he discussed the exam papers with Professor Rasiah in his office Professor Rasiah spoke to him in a discriminatory way. The Applicant observed that English was the only language of study at the University, for the course he was studying, so it is a given that everyone communicates in English. He said it might be normal to ask someone to speak clearly, or to speak more loudly, but it is not normal to tell someone to speak English when they are studying a course in English. The Applicant says that he was not treated in a normal way. He has studied and worked in Australia and New Zealand for 20 years and he has worked at the postdoctoral level. He has worked as a senior research fellow and he has been working as an interpreter for the area health service for over seven years and all these things prove he has English skills. Therefore there was no basis for Professor Rasiah to say "speak English" and in doing so he was not treating the Applicant as he would treat other students. 52The Applicant says he experienced detriment because of the differential treatment by Professor Rasiah. These experiences included low results from the differential marking of the Applicant in oral exams compared to other students, as well as in written exams. The Applicant submits that this conclusion can be drawn also from the evidence which indicates that in the same exam paper another lecturer gave the Applicant a pass mark, whereas Professor Rasiah did not. Further, the mark given by Professor Rasiah is extremely low compared to the mark given by Dr Tooney in the same exam. It was wrong for Professor Rasiah to fail to provide the exam results despite the Applicant's repeated requests. He states this is not a normal situation and not a normal way to handle a student's exam and is further evidence of the way he was treated differently because of his race. 53He also states that even his appeal and remarking was not handled in a normal way. In relation to the internal marking the result changed all the time - and the contact with the external marker was not handled in an independent way. Independence of the external re-marking cannot be proved. Having to wait so long for examination results, after sitting the supplementary exam, was being treated differently from other students. This unfair and different treatment, and the comment about his language skills, shows he was treated differently because of his race. The Applicant submits that the Tribunal should view the evidence as a whole and the Tribunal can draw the inference that he was treated differently because of his race and this was indicated when Professor Rasaih said to the Applicant "speak English". 54The Respondent submitted that there has been differential treatment but to the Applicant's advantage: allowing the Applicant to sit a supplementary exam without requiring him to go through the appeals process, the prompting by Professor Rasiah during the oral exam and the advising as to progression through the course. The Respondent submits that Professor Rasiah not only exercised discretion to give the Applicant special consideration and allow him to re-sit the exam for courses PHAR6008 and PHAR6009, but when he marked the supplementary exams Professor Rasiah gave the Applicant a pass mark. When Professor Rasiah met with the Applicant in September 2009 the evidence indicates that during that meeting Professor Rasaih may have discovered that he accidentally omitted 4 marks and so gave the Applicant an additional 4 marks. The Respondent submits that it is clear on the evidence that those additional 4 marks were part of the Applicant's initial mark before the exams were submitted to the external examiner. There is no basis for finding that the marks were changed before they were filed with the Tribunal. 55The Respondent submits that Professor Rasiah's admission that he asked the Applicant to read the question aloud in English, must be viewed in the context that Professor Rasiah is a senior academic in the Masters of Pharmacy course where graduates of the course provide advice, and dispense drugs to members of the public, in a shop front situation. At times the medications dispensed are dangerous. It is a critical factor that the dispenser be clearly understood by the recipient and the comments with respect to English language skills must be seen in that context. Professor Rasiah is in a responsible position and is required to pass people competent to be registered by the pharmacy board. 56The Tribunal should find, in the Respondent's submission, that the Applicant's oral exam mark was caused in large part by the Applicant's difficulty in answering the questions during the oral exam , and because he was slow in providing answers, and so this slowed down the exam process, so that he was unable to be asked all questions in the time allowed. 57The Respondent noted the authorities in relation to the drawing of inferences and submits that the innocent and probable explanation on the evidence is that the Applicant failed his exams and that there was no racial discrimination. 58The Respondent submits that in none of the material filed by the Applicant has the Applicant established that Professor Rasiah, or the University, discriminated against him on the grounds of his race, as required by sections 7 and 17 of the Act. Discussion of law, evidence and findings 59The Applicant's case, in summary, is that an academic in the employ of the Respondent, Professor Rasiah, discriminated against the Applicant, causing detriment to the Applicant in his studies and in progression of his degree, on the grounds of his race. 60The Anti-Discrimination Act 1977 (the Act) provides: 17 Education (1) It is unlawful for an educational authority to discriminate against a person on the ground of race: (a) by refusing or failing to accept the person's application for admission as a student, or (b) in the terms on which it is prepared to admit the person as a student. (2) It is unlawful for an educational authority to discriminate against a student on the ground of race: (a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority, or (b) by expelling the student or subjecting the student to any other detriment. (3) Nothing in this section applies to or in respect of a prescribed educational authority in relation to such circumstances, if any, as may be prescribed. 7 What constitutes discrimination on the ground of race (1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or (b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or (c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that 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 the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race . 4A Act done because of unlawful discrimination and for other reasons If: (a) an act is done for 2 or more reasons, and (b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason 61The Tribunal has considered guidance provided by other decisions of the Tribunal and the Courts in application of the legal provisions to the facts of the particular case. The Appeal Panel of the Tribunal in the case of Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 stated: Definition of direct race discrimination 38 Section 8 of the Act is the substantive provision in relation to race discrimination in employment. That section makes it "unlawful for an employer to discriminate against a person on the ground of race" in the circumstances described in sub-sections (1) and (2). Section 7 defines the words "discriminates . . . on the ground of race". It states: ........... .......... 41 The proper test to be applied when determining a case of direct discrimination has been considered on numerous occasions by appellate courts. While there has been some confusion and inconsistency there is clear authority to guide us. In Waterhouse v Bell (1991) 25 NSWLR 99 the Court of Appeal considered that part of the Act which deals with direct discrimination on the ground of marital status. Clarke JA stated (at p 105): The inquiry for which the section calls is a factual one involving essentially, two separate questions. The first, has A been treated less favourably than a person of different marital status was, or would have been, treated in the same circumstances, or in circumstances which are not materially different? The second, if so, was the ground of the differential treatment one of those mentioned in (a), (b) or (c)? 42 In Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 Dawson and Toohey JJ stated (at p 392): Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). 43 In the leading House of Lords decision, James v Eastleigh Borough Council [1990] UKHL 6; [1990] 2 AC 751, Lord Goff stated: The problem in the present case can be reduced to the simple question - did the defendant council, on the ground of sex, treat the plaintiff less favourably than it treated or would treat a woman? 44 In our opinion these statements clearly express the relevant law and should have led the Tribunal to pose for itself the following question. Did the Commissioner, on the ground of race (or a characteristic of race) treat Mr Aldridge less favourably than it treated or would have treated a non-Aboriginal person in the same circumstances, or in circumstances which were not materially different? 45 It is useful, for the purposes of analysis, to identify and label the two key components of this question. The first component is differential treatment and the second is causation. Logically differential treatment should be considered before causation because if there is no relevant differential treatment it is unnecessary to consider the issue of causation. 62The test for causation in discrimination (and victimisation) cases was further considered by the Appeal Panel of the Tribunal in the case of Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 (Nicholls case). After reviewing the authorities the Appeal Panel stated: 36 The test set out by the Court of Appeal in Waterhouse v Bell (1991) 25 NSWLR 99 and applied by the Tribunal in Shaikh is essentially the same test that the High Court enunciated more recently in Purvis. That fact supports our view that s 4A is an explanatory provision which does not give the words 'on the ground of' an extended meaning beyond their ordinary meaning. Whether or not the reason was substantial or insubstantial is not the point. The inquiry must focus on whether the reason contributed to the decision, that is, whether it was one of the real, genuine or true reasons for the decision. 37 Conclusion. Throughout its reasons, the Tribunal applied the 'but for' test and/or the substantial, dominant or main reason test. As we see it, the application of those tests constituted an error. The Tribunal should have asked itself whether the fact that the Nicholls had done one of the things listed in s 50(1)(a) to (d) was at least one of the 'real', 'genuine' or 'true' reasons for being subjected to a detriment. As for complaints of discrimination, for that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant. 63In the case of Commissioner of Corrective Services v Aldridge (No. 2) [2002] NSWADTAP6 the Appeal Panel of the Tribunal stated: 38 In our decision of 18 April 2000 we stated that, in relation to the complaint of discrimination on the ground of race, two issues needed to be addressed. Those issues are: Whether the Complainant was treated less favourably than a non-Aboriginal person would have been treated in circumstances that are the same or not materially different (the comparison issue); If so, whether that less favourable treatment was on ground of the race of the Complainant (the causation issue). 39 Differential treatment. As we also said in that earlier decision, differential treatment should be considered before causation because if there is no relevant differential treatment it is unnecessary to consider the issue of causation. For differential treatment to have occurred in this case, the treatment of Mr Aldridge must have been objectively less favourable than the treatment which was actually afforded to a non-Aboriginal person, or which would have been afforded to a non-Aboriginal person, in the same or similar circumstances. 64The High Court has said that the two elements of direct discrimination - differential treatment and causation - must be treated separately and sequentially: Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 at [231]. 65The Tribunal observed in the case Hollows v Macquarie University [2009] NSWADT 23 (6 February 2009) that this is more difficult where there is a hypothetical comparator for the purposes of assessing differential treatment. The Tribunal stated: That approach is logical when there is an actual comparator because the differential treatment question can be answered objectively based on the evidence of how the actual comparator was treated. However when the comparator is a hypothetical person the differential treatment question and the causation question amount to a single question, namely why was the person treated in the way that they were treated? (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26 at [7] and [8] and Dutt v Central Area Health Service [2002] NSWADT 133). Consequently, we are unable to determine how a hypothetical comparator would have been treated without first deciding the causation question. 66In Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92, when interpreting similar provisions in the Disability Discrimination Act 1992 (Cth), the majority of the High Court said that: ... the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it 'because of', 'by reason of', that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression 'because of'. 67In the case of Hollows v Macquarie University [2009] NSWADT 23 (6 February 2009) Magistrate Hennessy, Deputy President of the Tribunal, noted that: The AD Act uses the words "on the ground of", rather than "because of" but no different meaning is intended. 68To establish racial discrimination, differential treatment and causation must be established by the Applicant; he must establish that a real, genuine or true reason for any differential treatment was his race. The Applicant must establish that his race, either alone or in combination with other reasons, was the true basis for the treatment. 69The Applicant's case is that he was discriminated against and was subjected to a detriment by the Respondent, in education, on the grounds of his race in breach of Section 17(2) of Act (set out above). He submits that he was treated differently by the Respondent, on the grounds of his race, and that he experienced detriment in education due to the Respondent's actions. The Applicant's case revolved around three main issues: the seven-month delay from June 2008 until January 2009 in the marking of his examination for the course PHAR6008 and PHAR6009; the Applicant's results in the oral examination and the marks awarded overall in courses PHAR6222 and PHAR6223 (the Applicant asserts that he was awarded fail marks because of racial discrimination by Professor Rasiah); and the Applicant maintains that Professor Rasiah's use of the words "speak English" during the conversation in September 2009 reveals that the detriment was imposed by the Respondent for reason of his race and as such was unlawful discrimination. The Tribunal will deal with each of these events in making findings. The seven month delay in marking the examination paper 70There is no evidence of detriment or adverse treatment experienced by the Applicant in his studies at the University of Newcastle prior to the seven month delay in the marking of his supplementary exams for courses PHAR6008 and PHAR6009. The evidence is that Professor Rasiah and his colleagues exercised a discretion to allow the Applicant to re-sit the exam without requiring the Applicant to pursue the appeals process. Because of the timing of the request for consideration the Applicant was unable to sit the supplementary exam before the next trimester of study commenced. He sat the supplementary exam and Professor Rasiah marked the supplementary exam and awarded the Applicant pass grades for the exams. Professor Rasiah failed to enter the new marks into a computer spread sheet and to forward the new marks to the University administration for a period of approximately 7 months. The marks were forwarded by Professor Rasiah sometime around January 2009. 71Professor Rasiah cannot recall the Applicant's requests for his results however the Tribunal finds it plausible that the Applicant would make requests for his examination results and accepts that the Applicant did so. The Applicant placed great weight on the contents of a conversation in January 2009 where Professor Rasiah stated that he had not marked the exam yet. The Applicant appears to indicate that the University did not give consistent evidence about the reasons for the delay - the Applicant appeared to indicate in his evidence that the University had continually said that the delay was due to administrative oversight, yet Professor Rasiah also stated that he marked the exam promptly. The Applicant states that there is inconsistency and therefore the University's evidence about the reasons for the delay cannot be accepted. The Applicant submits that the reasons for the delay were because he was treated differently for reason of his race. Professor Rasiah states that there is another student in respect of whom he delayed for six months, and he also states that it is known amongst his colleagues that Professor Rasiah is not as prompt with his administrative tasks as other members of the faculty. The Tribunal finds that Professor Rasiah delayed in marking the exam and/or posting the results of the exam to administration, for an unacceptable period of seven months. 72The Tribunal accepts that a seven month delay in the marking of a supplementary exam is not the usual treatment for a student. For the purpose of making findings in this matter the Tribunal will accept that being subject to a seven month delay in receiving examination results may amount to differential treatment. However, the Applicant must establish causation, that a reason for the delay, or a reason for the differential treatment evidenced by the delay, is his race. In the period of the delay, from August 2008 to January 2009, there is no evidence presented indicating racially discriminatory views held by Professor Rasiah, nor is there any evidence to indicate that a reason for the delay in the marking of the exam was the Applicant's race. The conversation where Professor Rasiah said the words "speak English" occurred in September 2009. The relevance of that conversation to the Tribunal's findings overall is further detailed below in these reasons for decision. 73The Applicant has no direct evidence to indicate that a real or genuine reason for the delay in the marking of the supplementary exams was his race. The applicant relies on inferences to be drawn from the evidence that his race was a reason. 74As was observed by the Tribunal in the case of Dutt v Central Coast Area Health Service [2002] NSWADT 133: 74 This difficulty for an Applicant [in providing direct evidence of racial discrimination/relying on circumstantial evidence] has long been acknowledged in decisions in this Tribunal (see, eg, Carberry v Culburra Bowling & Recreation Club Limited [1997] NSWEOT at p 3) and in the Federal jurisdiction. In Ellenbogen v Federated Municipal and Shire Council Employees Union of Australia & Ors [1989] HREOCA 3 Einfeld J said at p 11 . . . racial discrimination will mostly if not always have to be proved inferentially or circumstantially. Thus evidence of discrimination will often be solely in the hands or minds of the Respondents, and be difficult for complainants to elicit in any credible form. Absence of evidence 82 When there is no evidence to support an inference that race was a ground, particularly when there is evidence giving rise to other, equally plausible inferences, an Applicant is left with nothing more than their belief that their race was a ground. In terms of legal proof, with which the Tribunal is necessarily concerned, such a belief is insufficient to establish unlawful discrimination.... .....Evidence supporting an inference of other grounds 87 There is extensive evidence in this matter of plausible, and at times probable, grounds other than Dr Dutt's race for less favourable treatment of Dr Dutt. The fact that there could be grounds other than race for the conduct does not preclude Dr Dutt's race being also a ground. But the existence of plausible and probable other grounds makes it extremely difficult for Dr Dutt to establish, on inference alone, that his race was more probably than not also a ground for the conduct. 75In the decision of the Tribunal in Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 the following was noted in relation to the drawing of inferences: 85 The exercise of drawing inferences has been discussed the Tribunal in numerous decisions: for example, Hafez v Warilla Women's Refuge Ltd & Ors [1997] NSWEOT (at page 5 of 35); A v B [1997] NSWEOT (at page 17 of 19); Edwards v Bourke Bowling Club Limited [2000] NSWADT 31; Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]. As the Tribunal observed in Dutt at [70], the authorities canvassed in those decisions, and in Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262, identify the following considerations in the drawing of inferences of discrimination: (a) a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts; (b) an inference must be reasonably drawn on the basis of the primary facts; (c) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference; (d) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of "probable connection"; (e) the inference must be a logical one, and not supposition; (f) an inference cannot be made where more probable and innocent explanations are available on the evidence. 76Applying the guidance offered by these Tribunal decisions, to the facts of the present matter, the Tribunal must determine whether an inference can be drawn that a reason for the seven-month delay was the Applicant's race. There is no evidence to support a conclusion that the Applicant's initial fail mark for the courses PHAR6008 and PHAR6009 was due to any racial discrimination and the Applicant does not assert this. He received a favourable exercise of a discretion and was allowed to sit a supplementary exam for the courses PHAR6008 and PHAR6009. When Professor Rasiah marked the supplementary exams he awarded the Applicant a pass mark - there is therefore no evidence that he subjected the Applicant to a detriment in the marking of the supplementary exam. Nor is there any evidence that his marking of the supplementary exam was influenced by adverse views about the Applicant's race, or that Professor Rasiah discriminated on racial grounds when marking the exam. Subsequently, Professor Rasiah delayed in providing the Applicant's results, an unacceptably lengthy period of delay of some seven months. 77The context of the delay was that the Applicant sat the supplementary exam after the commencement of the next trimester of study and so was already delayed in his progression through the course. Prior to this, in 2005, he failed an exam so that his study plan needed to be altered and his progression through the course was also affected by the failure in 2005. 78The guidance offered by the Tribunal cases referred to above indicates that the Tribunal may only draw an inference, from the evidence, where the inference can be reasonably drawn on the basis of the primary facts, the inference must be a logical one and not supposition, and the inference cannot be made where a more probable and innocent explanation is available on the evidence. The primary facts have been set out above about the supplementary exam in courses PHAR6008 and PHAR6009. The conversation where Professor Rasiah said "speak English" occurred at a much later date, in September 2009, and it is difficult to see its connection to the seven-month delay for this reason. However, even if the Tribunal was to accept such a connection, the Tribunal finds that the inference that the Applicant's race was a real or true reason for the seven month delay, cannot be drawn from the evidence in this case. There is no evidence of adverse treatment of the Applicant for racial reasons, prior to this delay, from which such an inference could be drawn as to race being a reason for the delay. Further, there is a more probable and innocent explanation available on the evidence. The evidence of Professor Rasiah is that he is not good with administrative tasks and that he also delayed about 6 months in respect of another student. The more probable and innocent explanation on the evidence before the Tribunal is that in failing to post the results, Professor Rasiah was not Professoressional or competent in meeting his administrative tasks and obligations. The Tribunal finds that the delay was due to such administrative poor practice, and was not an act by Professor Rasiah for reason of the Applicant's race. 79The Tribunal's function is not to supervise the University's practices, nor to decide whether there has been administrative poor practice, the Tribunal's function in the present case is to decide whether the Applicant has established, on the evidence, that he was discriminated against in contravention of the Act. Given the evidence that Professor Rasiah exercised discretion in favour of the Applicant to allow him to sit the supplementary exam, given that Professor Rasiah marked the exam and passed the Applicant, and given the lack of any other evidence indicating that a reason for the delay was the applicant's race, then the Tribunal finds the probable and innocent explanation available on the evidence is the explanation indicated by the evidence of Professor Rasiah, namely, that due to poor performance of his administrative obligations Professor Rasiah failed to advise the administration of the Applicant's results for the supplementary examination, for a period of some seven months. The marking of the exams for courses PHAR6222 and PHAR6223 80The Applicant's case is that the conduct of the oral exam for these courses in August 2009, and the subsequent marking of those exams, being the oral and written component of the exams, was adverse to the Applicant because Professor Rasiah discriminated against him for reason of his race. In relation to the oral component of the exam, the Applicant states that Professor Rasiah discriminated against him and so the Applicant was subjected to a detriment, in that he was unable to perform well in the exam. The Applicant submits that the evidence indicates that he was not asked all of the questions which were to be asked of students in the exam. The evidence before the Tribunal does indicate that the Applicant was not asked all of the examination questions. The Tribunal listened to the audio recording of the oral exam during the hearing. The Tribunal finds that during the oral exam Professor Rasiah sounded calm, courteous, and he tried to prompt the Applicant during the oral exam to assist him. The Tribunal finds, having regard to the audio recording of the oral exams, that the Applicant was slow to answer questions, appeared on occasion to be unable to answer the question, and was prompted on several occasions by Professor Rasiah. The Tribunal finds that the prompting by Professor Rasiah appeared to be an attempt to progress the Applicant in the exam - to assist the Applicant to either answer the question or answer questions more promptly so as to progress through the exam. The audio recording of the oral examination did not support a conclusion that Professor Rasiah was intimidating or negative towards the Applicant, or unfair in the way he asked questions. The Tribunal finds that whilst Professor Rasiah asked the questions in the oral exam, another staff member, Ms Phang, marked the answers. 81In relation to the written component of the exam, the Applicant states that the section marked by Professor Rasiah attracted much lower marks that the section marked by the other lecturer. He also indicates that he believes the marks are unreliable because he submits that the examination papers indicate that marks were added to the paper later (the evidence is detailed above in these reasons for decision). As discussed above, the Tribunal is not satisfied that the additional four marks were added after the paper went to the external examiner - it is clear from the material submitted by the Respondent that the additional four marks were part of the Applicant's mark awarded by the University before the paper was externally remarked. The additional four marks, making a total of six marks of that question on the paper, may have been there from the time the paper was initially marked, or may have been added by Professor Rasiah during the discussion with the Applicant in September 2009. The Tribunal is not satisfied that the evidence supports a conclusion that these marks were added later. As such the Tribunal does not accept the Applicant's submission that this evidence indicates that the University's marks are always changing and unreliable. The Tribunal accepts the evidence of the University as to the Applicant's mark, for his examinations in the courses PHAR6222 and PHAR6223 82The Tribunal finds that the Applicant failed the oral component of these exams, and also failed the subject overall. When the oral exam and the written examination papers were externally remarked by Professor Everett the Applicant was awarded a lower mark. The Applicant asked the Tribunal to draw the inference, in the absence of direct evidence, that his exam results and poor marks were the result of racial discrimination. The Tribunal has considered all the evidence about this issue. The Tribunal finds that the Applicant failed the oral examination because his answers to the questions were slow, there were often lengthy pauses before the Applicant answered. For this reason he was unable to be asked all available questions. The reason that he was unable to be asked all available questions was because of his poor performance, it was not because Professor Rasiah treated him unfairly during the oral examination, by asking him questions in an unfair way. The evidence of Professor Everett's comments on external remarking support the conclusion that the Applicant's performance was poor. 83In relation to the written examination papers the Tribunal has no basis to conclude that different marking by Professor Rasiah from the other lecturer was because of the Applicant's race. A more innocent and probable explanation on the evidence is that the Applicant did not satisfactorily answer that part of the examination paper and may have answered another section more competently. The Applicant would need to establish that Professor Rasiah gave him lower marks than other students, thereby treating him differently, and that a reason for the difference in his marks was his race. There is no evidence on which the Tribunal can draw this conclusion. There is no evidence that the Applicant was marked differently to other students in the same circumstances. To prove this the Applicant would need evidence of examination papers answered by other students, who gave the same answers as the Applicant, but received a higher mark. This evidence is not before the Tribunal. The Applicant asked the Tribunal to draw an inference, from the evidence as a whole, that he was awarded lower marks because of his race. Given that the audio recording of the oral exam does not demonstrate unfair questioning but does demonstrate that the Applicant was poor in answering the questions, and given Professor Everett on external marking of the oral and written exams considered the Applicant's performance to be poor, then the probable explanation available to the Tribunal from the primary facts is that the Applicant failed the exams because of poor performance. On the evidence the Tribunal simply cannot draw the inference that discrimination against the Applicant on the grounds of his race was a reason for his poor marks. This is particularly so given the direct evidence of poor performance (the audio recording of the oral exam and the comments by Professor Everett on external remarking, and the result of that independent external remark). There is no evidence to support a conclusion that the external remark was not independent, and there is no evidence to indicate any bias against the Applicant by Professor Everett. The Tribunal finds on the evidence that the reason for the low marks was the Applicant's poor performance in the exams. Issue of the use of the words "speak English" 84There is an issue of whether the use of these words amounts to racial discrimination. In this part of his claim the Applicant appears to be relying on the part of the definition of racial discrimination which refers to characteristics generally imputed to a person of the Applicant's race (section 7(2) of the Act). 85This raises the issue of whether the words "speak English" are about the Applicant's race or about his language skills. The Applicant's race is Chinese. Many persons of Chinese racial origin do not speak English as a first language and it was accepted in the present case that English was not the Applicant's first language. Are inadequate/or presumed inadequate English language skills a characteristic generally imputed to a person of the Chinese race? There are of course a number of persons of Chinese racial background who speak English fluently. There are also those of Chinese racial background for whom English is a second language, who are in the process of learning fluency in English. There are also those of Chinese racial background who speak English as a first language. 86The objects of the Act are to prevent racial discrimination and as human rights legislation the Act is to be interpreted beneficially. The provisions of the Act are not to be narrowly construed. For the purposes of deciding the present matter the Tribunal has accepted that words directed towards a person's competency in English language may, depending on the evidence in the particular case, amount to racially based discrimination - it all depends on the circumstances. 87To establish that the speaking of these words was unlawful racial discrimination in terms of the Act (sections 7 and 17) the Applicant needs to establish on the evidence that (a) he was treated differently in the same or similar circumstances as a person was or would be treated who is of a different race; and (b) a reason for such differential treatment was his race (causation) and (c) that he suffered a detriment in education (s17(2) of the Act). 88The Applicant has led no direct evidence of such differential treatment, there is no evidence of an actual comparator. He provides statements from other students who state that they found Professor Rasiah difficult, or hard, or unfair, but none of these other students give evidence of racial discrimination by Professor Rasiah. Only one statement refers in any way to race or English skills and this is the statement of Dr Pham. However Dr Pham's statement does not provide direct evidence of racial discrimination towards him as a student by Professor Rasiah. The Tribunal finds that the statements of other students do not provide evidence that Professor Rasiah discriminated against those other students on the grounds of their race. If so satisfied the Tribunal would have been required to consider whether evidence of discrimination against other students is evidence that Professor Rasiah would have discriminated against the Applicant. In previous cases the Tribunal has expressed caution about such evidence being a basis for such findings. In the case of Perera v Commissioner of Corrective Services [2007] NSWADT 115 (31 May 2007) the Tribunal stated: 93 Mr Singh and Ms Dogra provided affidavits and gave oral evidence at the hearing. The incidents they gave evidence about were not part of Mr Perera's complaint before the Tribunal. The question for this Tribunal is whether they prove that Ms Farrell had a tendency or propensity to behave in a particular way towards people of a different race to herself. In Pignat v Richmond Valley Council [2005] NSWADT 162 at [26] the Tribunal expressed caution about this kind of evidence stating: ... 'This kind of evidence should be treated cautiously because it allows a person to be judged by their conduct on other occasions, rather than on direct or indirect evidence of their conduct on the occasion that is the subject of the complaint. Under s 97 of the Evidence Act 1995, evidence of the conduct of a person is not admissible to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind, unless, among other things, that evidence has significant probative value. This Tribunal is not bound by the rules of evidence, but should nevertheless be careful not to rely on evidence adverse to Council unless its probative value is significant.' 89However, as noted above, the Tribunal was not satisfied that the evidence of the other students established that Professor Rasiah discriminated against the other students for reason of race. The Applicant in establishing differential treatment relies on consideration of a hypothetical comparator. As indicated in the authorities set out above the issue for determination is why the Applicant was treated as he was. 90The issue to be determined is: would the hypothetical comparator (of a different race) be treated differently to the Applicant in the same circumstances or circumstances that were not materially different. If the Tribunal was to consider a hypothetical comparator, such as a Caucasian person who was unable to effectively communicate his or her meaning to Professor Rasiah, it might be on the evidence of Professor Rasiah that he would also tell such a person to "speak English". It is clear on the evidence that Professor Rasiah places weight on a student's ability to communicate the content or subject matter of the course in a clear way. A Caucasian student who was unable to communicate with correct terminology might also the subject of such a comment, on the evidence of Professoressor Rasiah. Further, a person of a different racial background to the Applicant, who was unable to explain themselves, might, on the evidence of Professor Rasiah, attract a similar criticism from him. A person of Russian racial background, who communicated in a similar fashion, might on the evidence of Professor Rasiah be treated in the same fashion. The Tribunal is not satisfied that the Applicant has established that Professor Rasiah treated the Applicant differently than he would treat another student in the same or similar circumstances (being circumstances of the student being unable to communicate the course concepts clearly and with use of appropriate terminology). 91Even if the Tribunal was satisfied of differential treatment the Tribunal must also be satisfied of causation. As noted in the authorities set out above, the issue for the Tribunal is why the words were said. The Applicant says that in class Professor Rasiah might say "speak clearly" but would not say "speak English". However an inference which could be drawn from the evidence is that Professor Rasiah might say "speak English" to persons who are not of the Applicant's race who are unable to explain themselves clearly and discuss the course content using correct terminology. 92The Applicant must establish that a real or genuine reason for the use of the words by Professor Rasiah was the Applicant's race. Professor Rasiah stated in his oral evidence that the reason that he said these words was that he was frustrated in communicating with the Applicant because he was unable to understand what the Applicant was saying and unable to have effective communication about the Applicant's exam results. The innocent and probable explanation available on the evidence is that Professor Rasiah was frustrated due to difficulties in communicating ideas and concepts in the discussion with the Applicant about the exam results, and for this reason said the words. In particular Professor Rasiah gave evidence that he was frustrated by the use of incorrect terms used by the Applicant in discussing the subject matter (atopical/atypical). That is the evidence of Professor Rasiah. The Tribunal cannot be satisfied on the evidence that the Applicant has established causation - that a real or genuine reason that Professor Rasiah said the words, was because of the Applicant's race. The Tribunal is not satisfied that Professor Rasiah used the words because of racist views, rather the Tribunal considers that Professor Rasiah used the words when frustrated during the conversation with the Applicant. 93If the Tribunal was to take the view that saying "speak English" to a non-native/English speaking person of Chinese racial background, are words said for reason of the person's racial background - because a native/English speaking student of a different racial background would, for example, just be asked to explain his/herself without being asked to do so 'in English' - the Tribunal would then accept that there was differential treatment and causation. However to establish unlawful race discrimination in education, under the Act, more is required. The Applicant would need to establish that by speaking these words Professor Rasiah subjected him to a detriment in education (sec 17(2) of the Act). 94In Correy v St Joseph's Hospital Ltd [2007] NSWADT 104 the Tribunal considered the meaning of detriment in the carer's responsibilities equivalent of s17(2)(b). The Tribunal stated [at 82]. 95 In Bonella v Wollongong City Council [2001] NSWADT 194 (at [50]) the Tribunal endorsed the view that the term 'detriment' in the context of the sex discrimination equivalent of s 49V(2)(c) ought be given the same meaning as given to the term in the context of section 50 of the ADA (see e.g. Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 and Sivananthan v Commissioner of Police [2001] NSWADT 44) namely, 'loss, damage or injury'. Having regard to those cases, the Tribunal in Bonella (at [41]) thought that the detriment suffered by the complainant must 'be real and not trivial' and 'whether something constitutes a detriment must be determined objectively and not subjectively'. 96The Applicant did not present any evidence of a detriment suffered by him because of the use of these words alone. The Tribunal considers on the evidence that it would be difficult for the Applicant to establish that the use of the words "speak English" in a private discussion with a lecturer, whilst discussing exam results, in the absence of any evidence of aggression in the speaking of the words, was a detriment to him in education. The Applicant's evidence was that it was not a normal way to be treated, he did not give evidence of detriment suffered. The Tribunal cannot find, on the evidence, that the use of the words, in the context in which they were used, subjected the Applicant to a detriment in education as required by s17(2) of the Act 97In any event, the Applicant did not assert that the speaking of these words constituted a detriment: the Applicant relies on the use of the words "speak English" as a basis for drawing an inference that his race was a real reason for alleged less favourable treatment. That is, the Applicant asserts that a true reason why Professor Rasiah subjected him to the detriment of the seven-month delay in the marking of his exams, and a reason why he received fail marks in his oral and written exams in the courses PHAR6222 and PHAR6223, was his race, and that this is revealed by the use of the words "speak English". However, as discussed above, the Tribunal does not consider that the Applicant has established that a reason for the seven-month delay, or a reason for his failing the courses PHAR6222 and PHAR6223, was his race. The Tribunal cannot be satisfied, as discussed above, that the use of the words "speak English" in a private conversation, on the evidence in this case, amounted to unlawful racial discrimination under the Act. Other issues 98In relation to the sitting of the supplementary exam for course PHAR6221 in September 2009 the Tribunal finds as follows. The supplementary exam was scheduled for 17 September 2009. The Applicant claimed to be ill on that date, and first provided a medical certificate on 11 September 2009, dated 9 September 2009, that covered the period of 9 September 2009 to 14 September 2009. This certificate did not cover him for the exam date of 17 September 2009 and he was asked to obtain another medical certificate. In any event he was given the benefit of the doubt by the University and his exam was rescheduled for 25 September 2009. On that date his exam was supervised by Ms Tait and marked by Ms Tait and Ms Joyce Cooper. Professor Rasiah was not involved in this marking. The Applicant then submitted a further medical certificate on 28 September 2009, three days after he had sat the rescheduled exam. University policy provided that the student will be able to apply for consideration of special circumstances on only one occasion, unless there are exceptional circumstances. The University's view is that the medical certificate was supplied late, the Applicant's view was that it was supplied within a relevant three-day period. The University's position is that if it had been submitted on time the Applicant may have been considered for exceptional circumstances, but even had this occurred, a further rescheduling of the exam, which would have been a third accommodation, may, or may not, have been granted. The Applicant case's is that he suffered detriment in his studies, because the University discriminated against him on racial grounds. The Tribunal considers that there is no evidence to indicate that a further accommodation, after the Applicant sat the supplementary exam on 25 September 2009, would have been granted to the Applicant, and there is no evidence to support a conclusion that a reason that he was not granted further special consideration was his race. The Tribunal is unable to draw such an inference from the primary facts. The University's explanation is a plausible, probable and innocent explanation available on the evidence, and the Tribunal is accordingly unable to draw the inference that the University did not grant him special accommodation because of his race. 99Nor is the Tribunal able to draw the inference from the evidence that Professor Rasiah was systematically discriminating against the Applicant on racial grounds or causing others at the University to do so. Professor Rasiah was not involved in supervising or marking the exam. The Tribunal is not satisfied on the evidence that a real reason that the Applicant was not given further special consideration after sitting the supplementary exam on 25 September 2009 was his race. 100The Tribunal is not satisfied on the evidence that Ms Joyce Cooper broadcasted the Applicant's fail mark for the supplementary exam (of 25 September 2009) when she sent an e-mail to the Applicant on 5 October 2009, by forwarding the same e-mail to about 200 other students. On the evidence the Tribunal cannot make this finding: the Respondent denies this occured and states that an investigation by the Technology Unit did not disclose such a breach of privacy; the Applicant provides no evidence of the transmission of the e-mail to any person other than himself. In the absence of such evidence, and having regard to the contradiction of this part of the Applicant's case by the University, then the Tribunal could not be satisfied of a breach of privacy by transmission of the e-mail to 200 other people occurred. The Tribunal notes in any event that there is no evidence to support a conclusion that, if this had been done, it was done for reason of the Applicant's race. However, as detailed, on the evidence the Tribunal is not satisfied that this occurred. Conclusion 101The Tribunal does observe that the Applicant experienced difficulties at the University of Newcastle. The Tribunal considers it was inappropriate for the Applicant to have been subjected to the seven-month delay in obtaining his results after sitting a supplementary exam. However, as noted above, the Tribunal's function is not to assess the University's administrative practices and whether there are poor administrative practices. The Tribunal's function is to determine whether the Applicant has established, on the evidence and according to law, that the Respondent discriminated against him for reason of his race, in contravention of the Act. For the reasons detailed above the Tribunal is not so satisfied. Given the Tribunal's findings that the Applicant has not established, that the Respondent subjected him to unlawful racial discrimination, then the Tribunal orders that the application is dismissed. ********** 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. Decision last updated: 28 September 2012