Tribunal Rejects Race Discrimination and Victimisation Claims

The Tribunal denied the claimant's request for leave to proceed with complaints of race discrimination and victimisation under the Anti-Discrimination Act 1977, finding that the claimant failed to provide credible evidence supporting the allegations.

OUTCOME: Refused

CITATION: [NAME_1] v [COMPANY_2] ([NAME_3] & ACT) [COMPANY_2] [2008] NSWADT 135

DIVISION: Equal Opportunity Division

APPLICANT [NAME_1] PARTIES: RESPONDENT [COMPANY_2] ([NAME_3] & ACT) [COMPANY_2]: 081004; 081006

HEARING DATES: 26 February 2008

SUBMISSIONS CLOSED: 26 February 2008

DATE OF DECISION: 13 May 2008

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Application for leave to proceed

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED : Anti-Discrimination Act 1977

CASES CITED: [NAME_4] v New South Wales [2003] HCA 62; (2003) 217 CLR 92 Xu v Sydney West Area Health Service [2006] NSWADT 3

APPLICANT In person REPRESENTATION: RESPONDENT [NAME_5], barrister

ORDERS: Leave is refused in relation to the complaints of race discrimination and victimisation.

REASONS FOR

DECISION Introduction 1 [NAME_1] is requesting the Tribunal's permission for two complaints under the Anti-Discrimination Act 1977 (AD Act) to proceed despite the fact that the President of the Anti-Discrimination Board declined the complaints as lacking in substance: AD Act, section 96. The first complaint is a complaint of race discrimination and the second compliant is a complaint of victimisation. Both complaints are against the [COMPANY_2] ([NAME_3] & ACT) [COMPANY_2] ([NAME_2]). 2 The complaints arise from the fact that [NAME_1] applied to [NAME_2] for admission into three university courses, including a Bachelor of Medicine at the University of New South Wales (UNSW). As well as other documentation, [NAME_1] provided [NAME_2] with copies of transcripts for a Bachelor of Science Degree and a partially completed Bachelor of Medicine degree from Kabul University in Afghanistan. [NAME_2] refused to assess those qualifications because it had evidence that they may not be authentic and were unable to obtain verification of their authenticity from Kabul University. [NAME_1] says that in refusing to assess his qualifications without verification [NAME_2] has discriminated against him on the ground of his race in breach of section 19 of the AD Act. He says that UNSW was notified by Kabul University that his qualifications were genuine and on that basis offered him a place in the Masters of Forensic Mental Health course. 3 [NAME_1]'s second complaint is that after he complained to the Anti-Discrimination Board, [NAME_2] contacted other universities to which [NAME_1] had applied directly for admission and advised them not to accept [NAME_1]'s qualifications without verification. He says that such conduct constitutes victimisation in breach of section 50 of the AD Act. [NAME_6], the Managing Director of [NAME_2], denies having contacted any university to advise it of concerns about [NAME_1]'s qualifications. 4 By letter of 22 February 2008, after the complaints had been referred to the Tribunal, [NAME_1] sought to add a complaint that [NAME_2] had not recognised his English language proficiency. Although section 103 of the AD Act gives the Tribunal discretion to amend a complaint at any stage in the proceedings, I do not regard it as appropriate to consider an application for an amendment to a complaint before the application for leave for the complaint to proceed has been determined. If leave is refused then there is no longer a complaint before the Tribunal to which could be amended. Approach to leave applications 5 [NAME_1] needs to obtain leave before either of his complaints can go ahead. In Xu v Sydney West Area Health Service [2006] NSWADT 3, the Tribunal set out its approach to determining applications for leave under section 96. I adopt those principles in relation to this case, especially the points made at [17] and [18]. In summary, the applicant needs to satisfy the Tribunal that there is a substantial reason for leave to be granted including that the complaint has reasonable prospects of success. The Tribunal also pointed out a [16] of Xu that: It is not generally appropriate for the President to decline a complaint as lacking in substance where there is a serious question of fact to be determined or where a serious question of credit is involved. ( Spellson v George (1992) 26 NSWLR 666.) Importantly, if factual issues are likely to be affected by evidence in the possession of the respondent, that matter alone may make it inappropriate to dismiss the matter. Material in summonsed documents or answers on cross examination may lead to the proof of factual matters about which the applicant has no direct evidence. ( Wickstead v Browne (1992) 30 NSWLR 1.) Evidence 6 Although it is not the Tribunal's role to make findings of fact at this stage, I must assess the evidence in order to form a view as to the merits of the complaints. The evidence consisted of the President's Report, an affidavit of [NAME_6] dated 22 February 2008 and the oral submissions from the parties at the hearing. 7 Universities in [NAME_3] and the ACT are the owners of [NAME_2]. While it is the universities themselves who decide who will be offered positions, [NAME_2] co-ordinates the process. One of its roles is to assess local and overseas qualifications to determine whether they are genuine. [NAME_2] employees are trained to identify documentation, which may be fraudulent. According to [NAME_6], tertiary admissions organisations around the world take a very cautious approach to assessing qualifications from certain countries including China, the United States, the Russian Federation, Afghanistan and Pakistan. He says that this is because a large percentage of documents purporting to be from tertiary institutions in those areas are false. If there are indications that a document may not be authentic steps are taken to obtain verification from the tertiary institution concerned. If verification cannot be obtained, the qualification is not included when the application is assessed. 8 [NAME_2]'s concerns about the authenticity of [NAME_1]'s documents were based on the following grounds: (a) before receiving [NAME_1]'s application, QTAC (the equivalent of [NAME_2] in Queensland) had raised the possibility that [NAME_1] was a person using various identities to make applications for study around Australia; (b) both [NAME_2] had received applications from those other identities and at least some of the documents annexed to each application were found to be fraudulent; (c) when [NAME_2] received [NAME_1]'s application concerns were raised because those qualifications recorded very high marks and recorded that studies had been undertaken concurrently in Pakistan and Afghanistan; (d) [NAME_1]'s application to QTAC and his first [NAME_2] application relate to people with identical birth dates and names, but a slightly different father's name; and (e) The relevant documents provided by [NAME_1] in subsequent applications to [NAME_2] were slightly different from the qualifications he had previously submitted. 9 [NAME_2] staff attempted to verify the validity of the academic transcripts with Kabul University by letter, facsimile, email and telephone but none of those attempts were successful. [NAME_6] became aware in January 2008, that the Federal Police were of the view that [NAME_1] had used other identities for the purpose of making applications to study at universities in Australia. [NAME_6] also noted that in two separate documents provided by [NAME_1] to the Anti-Discrimination Board, he purports to have studied Medicine at the University of Sindh in Pakistan from 2002 to 2005 and to have studied Medicine at the University of Kabul between 2003 and 2005. (See pages 42 and 46 of President's Report in File Number 081004.) [NAME_1] provided no explanation for this discrepancy. 10 [NAME_1] alleged that [NAME_6] had falsified the documents showing discrepancies in his qualifications that were allegedly sent to QTAC. He says that he did not send those documents and they are "bogus". [NAME_1] says that he has applied directly to several universities and has been offered places in courses without the need for his qualifications to be authenticated. He also says that Kabul University does not recognise the authority of [NAME_6], it only recognises the authority of the universities themselves. According to [NAME_1] that is why the Kabul University has not verified with [NAME_6] that his qualifications are genuine. 11 In relation to the victimisation complaint, [NAME_1] says that he was offered a postgraduate place in a course at UNSW and a place in an undergraduate course at the University of Wollongong. He says that after he lodged a complaint of discrimination those universities required verification of his qualifications. [NAME_1] has concluded that [NAME_2] must have advised those universities not to offer him a place without first obtaining verification of his qualifications. He says that [NAME_2] did so as a result of him having lodged a complaint of discrimination. 12 [NAME_6]'s evidence as set out in a letter to the Anti-Discrimination Board dated 24 October 2007, is, in part, that: In any situation where [NAME_1] has lodged his application through [NAME_2], it has been the universities, which have first approached [NAME_2] to discuss his applications. Where [NAME_1] has lodged an application directly with a university, [NAME_2] has not approached that university to inform the university of [NAME_2]'s concerns with the qualifications [NAME_1] has presented. Indeed, [NAME_2] would normally be completely unaware of any application lodged directly with a university unless the university concerned approached [NAME_2] for advice in the matter. 13 In relation to [NAME_1]'s application to the University of Wollongong, [NAME_6] said that: The University of Wollongong has not approached [NAME_2] for advice in [NAME_1]'s case and [NAME_2] has only been made aware of [NAME_1]'s application to that university through [NAME_1]'s own correspondence with [NAME_2]. [NAME_2] was made aware of [NAME_1]'s direct application to the University, [NAME_2] determined that it would not contact the University to advise it of [NAME_2]'s concerns about [NAME_1]'s qualifications. At the time, (2 October) of [NAME_1]'s complaint of victimisation, [NAME_2] had not contacted the University about [NAME_1]. . . . [NAME_2] did not at any time advise the University that it should not accept the qualifications, nor did [NAME_2] advise the University that it should withdraw its offer of enrolment to [NAME_1]. Legislative requirements 14 In order to prove that he has been unlawfully discriminated against on the ground of his race, [NAME_1] would have to establish that: a) [NAME_2] is providing him with a service; b) [NAME_2] has treated him unfavourably either by refusing to provide him with that service or in relation to the terms on which the service has been provided; c) the treatment consists of either: (i) treating [NAME_1] less favourably than in the same circumstances, or in circumstances which are not materially different, [NAME_2] treats or would treat a person of a different race;(the differential treatment requirement) and at least one of the reasons for that treatment is [NAME_1]'s race (the causation requirement); or (ii) requiring [NAME_1] to comply with a requirement or condition which a substantially higher proportion of persons not of his 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 [NAME_1] cannot comply. 15 [NAME_1] made a complaint of victimisation on 2 October 2007. In order to prove that he has been victimised, [NAME_1] would have to establish that as a result of him complaining to the Anti-Discrimination Board about race discrimination on 20 July 2007, [NAME_2] has subjected him to a detriment: AD Act , section 50. Race discrimination complaint 16 Provisions of services. [NAME_2] admitted that it was providing [NAME_1] with a service and that it had provided those services on certain terms. 17 Differential treatment requirement. [NAME_6] provided evidence that supports [NAME_2]'s contention that it would not have treated someone of a different race any differently from the way it treated [NAME_1]. That evidence was that when a New Zealander provided documentation relating to a Scottish qualification suspected of being fraudulent, [NAME_2] sought to verify the qualification but was unable to do so. That applicant was not considered for the purpose of allocating places in [NAME_3] and ACT universities. Based on a hypothetical, rather than an actual comparator, there was no evidence from which an inference could be drawn that a person who did not purport to have qualifications from Afghanistan would have been treated any differently from [NAME_1] in the same or similar circumstances. When comparing the treatment that [NAME_1] received with the treatment a hypothetical person from a different race would have received, the circumstances include "all of the objective features which surround the actual or intended treatment of the person": [NAME_4] v New South Wales [2003] HCA 62; (2003) 217 CLR 92 at 160-161. In this case those circumstances include the fact that [NAME_1] presented qualifications, which [NAME_2] regarded as highly, suspect. 18 Causation requirement. According to [NAME_2], the reason that it required verification of his qualifications from Kabul University was that there were genuine concerns based on tangible evidence about the authenticity of the documentation he provided. [NAME_2] said that it takes a particularly cautious approach when assessing qualifications from certain countries including China, the United States, the Russian Federation, Afghanistan and Pakistan, in this case the fact that [NAME_2] has such a policy was not the reason they asked for [NAME_1]'s qualifications to be verified. [NAME_1] submitted that his race must have been a factor in [NAME_2]'s decision because when he applied for admission directly to a university, he had been accepted without any need for his qualification to be verified. However, [NAME_6] pointed out that universities are not bound to apply the same standards as [NAME_2]. Furthermore, [NAME_1] did not provide the Tribunal with a copy of the documentation he provided to UNSW as proof of his qualifications. 19 Indirect discrimination. It is arguable that [NAME_2] has imposed a requirement on [NAME_1] that where qualifications are from a particular group of countries (including Afghanistan) they will not be assessed until verified by the issuing body. Given that qualifications from Afghanistan (and several other countries) are treated with caution, it may be that a higher proportion of applicants who are not Afghani can comply with that requirement. However, even if that were the case, a Tribunal would be highly likely to regard such a policy as reasonable. Furthermore, according to [NAME_2] it was the suspect nature of the documents, rather than the fact that they were from Afghanistan, that was the main reason for requiring verification. Victimisation complaint 20 [NAME_1]'s assertion that he has been victimised as a result of lodging a complaint of discrimination lacks substance. It is mere speculation on [NAME_1]'s part that [NAME_2] advised any university not to offer him a place without first obtaining verification of his qualifications. [NAME_2] denies that that was the case. There is very little likelihood of [NAME_1] being able to prove the factual basis for the complaint of victimisation. Even if he were able to do so, he would still have to establish a link between a detriment and having lodged the complaint of discrimination. Conclusion 21 [NAME_6] provided detailed and credible evidence about the approach [NAME_2] takes when assessing university applications, which are suspected of being fraudulent. In summary, [NAME_2]'s policy is that if such transcripts cannot be verified with the issuing university, they are not taken into account when assessing eligibility for a place in any higher educational institution. [NAME_2] said that it adopted that approach when assessing [NAME_1]'s application. [NAME_1]'s response was that [NAME_6] had falsified the documents showing discrepancies in his qualifications that were allegedly sent to QTAC. He also said that Kabul University only responds to universities directly and does not recognise [NAME_6]'s authority. Those allegations are not credible given all the other evidence referred to by [NAME_6], which suggests that [NAME_1] has not provided genuine documentation. [NAME_1] has been offered a place when he applied direct to a university, but that does not mean that [NAME_2] has discriminated against him on the grounds of his race. A much more likely explanation is that the individual universities do not undertake the rigorous checking process carried out by [NAME_2]. The evidence is also substantially in [NAME_2]'s favour in relation to the victimisation complaint. 22 In general, it is not appropriate to refuse leave to proceed where there is a serious question of fact to be determined or where a serious question of credit is involved. However, in this case, the evidence is overwhelmingly in favour of [NAME_2]'s submission that there has been no discrimination on the ground of race and no victimisation. [NAME_1] has very little, if any, credibility given the evidence [NAME_6] has adduced about his conduct and his failure to satisfactorily respond to those allegations. In those circumstances I am not persuaded that there is a substantive reason for granting leave for either of his complaints to proceed. Orders Leave is refused in relation to the complaints of race discrimination and victimisation.

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