CNK v University of Newcastle [2016] NSWCATAD 177

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CNK v University of Newcastle [2016] NSWCATAD 177 Hearing dates: 16, 17 and 18 September 2015, 3, 4 and 5 February 2016 (written submissions ordered by 15 February 2016) Date of orders: 11 August 2016 Decision date: 11 August 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: R Perrignon, Senior Member M O'Halloran, General Member Decision: Complaints of direct and indirect discrimination on the grounds of disability are dismissed. Catchwords: Disability discrimination – higher research degree student with a mental illness - allegations of direct discrimination - that the University treated the applicant less favourably than it treated or would have treated students without mental illness – allegation of indirect discrimination, that in imposing a minimum requirement of 75% exam results, the University required the applicant to comply with a condition which a substantially higher proportion of persons without his disability comply or are able to comply Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Fluor Australia Pty Limited v Tanevski (2009) NSWADTAP 39 Category: Principal judgment Parties: CNK (Applicant) University of Newcastle (Respondent) Representation: Counsel: Y Shariff (Respondent)

Solicitors: CNK (Applicant in person) File Number(s): 1510109

REASONS FOR DECISION 1. The applicant was an international student enrolled in a higher research degree in at the University of Newcastle. In September 2011 he was offered a place as a candidate for the Masters Degree in Chemical Engineering, with a substantial scholarship. It was a condition of his candidature that he achieve a minimum mark of 75 percent in two exams: (1) Thermodynamics and (2) Kinetics and Reaction Engineering. He sat those exams twice, in 2012 and a second time in 2013. On the first occasion, he obtained less than 60% in each. In 2013, he obtained 69% in Thermodynamics and 67% in Kinetics and Reaction Engineering. By letter from Associate Professor Abbo dated 1 August 2013, the applicant's candidature for the degree was terminated, expressly on the grounds that he had failed to comply with the conditions of his enrolment, namely that he achieve 75% in each of the two subjects. 2. The applicant complained to the Anti-Discrimination Board that he had been discriminated against on the grounds of his disability – namely, a depressive illness. The President of the Board referred the complaint to this Tribunal. 3. The applicant represented himself before the Tribunal. At an early stage, the Tribunal directed him to file points of claim. He did not do so. Considerable time was spent at hearing in trying to elicit how the applicant alleged that he had been discriminated against, to enable the respondent to know the case it was required to meet, and the Tribunal to discern the issues it had to decide. On the third day of hearing, the nature of the direct discrimination complaint was reduced to writing and marked as an exhibit. 4. The applicant complains that the University's Dean of Graduate Studies, Associate Professor Abbo, treated him less favourably, on the grounds of his disability, than the Professor did or would have treated persons without the Applicant's disability, in three ways: 1. by failing to obtain 'intervention strategies' to assist him, 2. by failing to invite or require him to show cause why his candidature ought not be terminated, and 3. by referring him to Rule 42 of the rules governing Research Higher Degrees at the University – which contains a right of appeal of which the applicant availed himself but which, the parties agree, did not apply in the applicant's case. 1. The applicant also complains that the University discriminated against him indirectly, by requiring him to obtain a minimum of 75% in each of his two courses. He says this is a requirement with which a substantially higher proportion of people without his disability comply or are able to comply than the proportion of people with his disability. Though the disability was not precisely defined by the applicant, he adduced medical evidence that in 2012 he had suffered from a psychological condition whose symptoms included depression, and that from February 2013 he had suffered from a major depressive illness. 2. At the conclusion of the hearing, the parties were directed to file written submissions. Those submissions, to the extent they were relevant to the issues for determination, have been taken into account. 3. The University agrees that Professor Abbo did not implement any strategies for intervention, that he did not afford the applicant an opportunity to show cause, and that he did refer him to Rule 42 in circumstances where that rule did not apply to him. It says, however, that Professor Abbo did not do any of these things on the grounds of the applicant's disability, because Professor Abbo was not aware of it at the relevant time. Even if any of these actions or omissions had been motivated, in part, by a knowledge of the applicant's depressive illness – which it denies - the University says that the applicant was not subjected to a detriment as required by the legislation, because Professor Abbo would have treated anyone without the relevant disability in the same way, in the same circumstances – that is, where a student on scholarship had failed to comply with a condition of enrolment. 4. The University submits that the Tribunal would not be satisfied that the imposition of a 75% minimum mark was one with which persons without the relevant disability more readily complied or were able to comply, as it says there is no evidence to support such a conclusion. 5. The applicant made many submissions to the effect that in cancelling his enrolment in the way that it did, the University breached its own Code of Practice and rules, and at least one external code binding on it. The Tribunal explained to him at hearing that its function was not to conduct a merits review of the University's decision to cancel his enrolment, but to determine complaints of direct and indirect discrimination.