Alnajdi v The University of Sydney

NCAT Administrative and Equal Opportunity|2024-10-09

REASONS FOR DECISION

Mr Ghazi Alnajdi ("the complainant") is of Saudi Arabian Nationality who was granted a Subclass 500 visa to travel to Australia and undertake studies in March 2000. In or around December 2021, the complainant was offered enrolment in a PhD course at The University of Sydney ("the university"), with a commencement date of March 2022. The complainant commenced his course and studies in March 2022 at the university.
The Complainant lives with a mental and physical health diagnoses, namely Type 1 diabetes, depression and anxiety. All of which are documented in a Disability Services Plan with the university.
The Complaint contends that the university required him to complete his course of study within 14 research periods. He submits that the Associate Dean can approve an extension of the latest date if exceptional circumstances are established. No such extension was granted to him.
On 20 October 2023, the complainant contends that he attended a Progress Evaluation Meeting with the university at which he was required to show good cause as to why he should be permitted to continue his candidature. This was because the university had formed a view that the complainant was no making satisfactory progress in his course.
On 24 November 2023 the complainant contends that he provided a response to the university, "in which he referred to, among other things, the need for additional support to complete his degree for reasons relating to his disabilities, which had been exacerbated due to the death of his mother."
On 6 December 2023 the complainant contends that the university "determined that the Applicant had not shown good cause as to why he should be permitted to continue his candidature for reasons including failure to make sufficient progress in his degree. The reasons given indicated a lack of satisfaction on the Respondent's part as to the Applicant's ability to complete this thesis on time, in accordance the HDR Rule requiring full time students to complete their PhD within 14 research periods."

The complaint of alleged discrimination

The complainant alleged that he was subjected to indirect disability discrimination in education (49B(1)(b) of the Anti-Discrimination Act 1977 (NSW)): 1. by requiring him to complete his degree, or satisfy the university that he could complete his degree, within 14 research periods as specified in the HDR Rule. This was in circumstances where the university knew that the complainant would not be able to comply with such a requirement by reason of the nature of his disabilities as documented in the Disability Services Academic Plan. 2. No consideration was given by the university to extending the deadline for the complainant to submit a thesis, in view of the difficulties suffered by the complainant as a result of his disabilities.
The complainant also alleged race unlawful discrimination as he was told by his PhD supervisor Dr Natalie Allen to practice with "Saudis".
On 10 January 2024, the complainant lodged a complaint with the President of the Anti-Discrimination NSW (respectively, "the President" and "ADNSW") alleging the matters in paragraphs [8]-[9] above.
On or about 9 February 2024, following ADNSW advising the university of the complaint, the following response was received by ADNSW from the university.
First, the complaint of disability and racial discrimination was premature. This was because the university was undertaking an internal investigation about his complaints.
Second, the university's Inclusion and Disability Service is the key point of contact for students with disabilities and their responsibilities. This included reviewing the needs of students and help them access reasonable adjustments via the preparation of Academic Plans. The university contends "Inclusion and Disability Services assisted the complainant to prepare two Academic Plans in July 2022 and June 2023, which included recommendations for implementing reasonable adjustments in terms of timeframes, condition management and communication. Recommendation regarding timeframe was the complainant may require additional time for certain deadline and that student and supervisor to negotiate as required. With condition management, the complainant may need to access food, drink, medication, and medical devices during the meeting. Regarding communication, the Plan suggests the complainant have difficulty hearing negative feedback but that supervisors should not 'shy away from difficult or sensitive conversations."
Third, University of Sydney (Higher Degree by Research) Rule 2011, requires a candidate for the full-time Doctor of Philosophy to complete the course by the end of the 16th research period after the research period in which the student first enrolled. This means that the complainant should have submitted his thesis on or before 30 September 2025.
Fourth, in respect of the complainants progress in the PhD course, the university contends: " … the complainant frequently attended meetings with his supervisors. He met with at least one member of his academic supervisor team on at least 43 occasions. On 9 March 2023, Dr Allen first raised concerns with the complainant regarding his overall progress in the PhD. The concerns were again raised with the complainant on 29 May 2023 in the presence of Dr Hancock. The complainant did not take periods of respite by way of suspension, despite advice from his supervisory team. As per the University's standard practice, the complainant attended a Progress Evaluation Meeting (PME) on 20 October 2023. This is an annual meeting to ensure that higher degree by research students is progressing well and are on track to submit an examinable thesis within the required timeframe. As per the University's Progress Planning and Review for Higher Degree by Research Students Policy 2015, (the Progress Policy), the respondent had formed the view that the complainant was making unsatisfactory progress and subsequently, the complainant was asked to show good cause as to why he should be permitted to continue with his candidature. After considering the complainant's response to show good cause and other relevant information including his progress reports, the respondent decided that the complainant's candidature would be terminated in accordance with section 4.12(5)(a) of the Rule. Investigation report: The complainant provided a copy of the Investigation report of his complaint to the respondent about harassment and discrimination against the individual staff members, Dr Allen, Dr Hancock and Dr Day. The investigation report states: • In accordance with Clause 8 of the Student Complaints Procedures 2015, the Student Affairs Unit (SAU) undertook a preliminary assessment of the complainant's complaint and referred the complaint to the Workplace Relations unit. Workplace Relations is a division of Human Resources, responsible for assessing complaints against staff at the University. The preliminary assessment was in pursuant to the Bullying, Harassment and Discrimination Prevention Resolution Procedures 2015 (Bullying Procedures). • The finding of the investigation is that there is no evidence of action taken or unreasonable conduct by Dr Allen, Dr Hancock and Dr Day in this matter that would meet the required standard for a breach of the Bullying, Harassment and Discrimination Prevention Policy 2015. Therefore, no further action will not be taken in relation to the complainant's complaint. Based on this investigation, the Student Affairs Unit also decided not to take any further action into the complainant's complaint of harassment and discrimination."
The complainant provided the following reply to ADNSW. The complainant refutes the university's response and maintains the complaint of disability and race discrimination and the reasons outlined in the complaint document. The complainant states that: 1. Dr Day states in his show good cause letter that student enrolled full time must complete their candidature within 14 research periods, which is irrespective of their academic plan. 2. On 23 August 2023, Dr Allen says in the video recording that he must finish his PhD within three years like students without disabilities. Otherwise, he will be dismissed from the PhD program. 3. The support he needed and was written in his Disability Services Academic Plan 2022 and 2023 was not implemented by the faculty.
The President declined the complaint of disability and race discrimination in education under the Act as the complaint was lacking in substance (s 92(1)(a)(i) of the Act).
At the complainant's request on 8 August 2024, the President referred the complaint to the Tribunal as required by s 93A of the Act.
Because the President has exercised the discretion to decline the complaint, the complainant cannot proceed without leave of the Tribunal: s 96(1) of the Act. The complainant moves the Tribunal to grant leave. The university, on the other hand, supports the findings made by the President and opposes leave being granted.
For the reasons that follow, I have decided to grant leave in respect of the disability discrimination complaint and refuse leave in respect of the race discrimination complaint.

Legal Principles

A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act.
Where the President decides to accept a complaint under s 89B, she must investigate that complaint: s 90(1) of the Act. If the President is satisfied at any time of the investigation that the complaint is lacking in substance, she may decline the complaint in whole or in part: s 92(1)(a)(i). A complaint will be "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is "not reasonably arguable": Langley v Niland [1981] 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].
Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if she has received a written request from the complainant to do so: s 93A of the Act.
Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.
Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25] (Ekermawi). That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60].
In determining whether to grant or refuse leave for a complaint to proceed pursuant to s 96(1) of the Act, the complainant's evidence must be taken at its highest - that is, everything the complainant has put in evidence is accepted as true - and then the Tribunal determines whether he could possibly succeed in his complaint of discrimination: Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]).
If an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination under the Act (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of the Act, the act is taken to be done for that reason: s 4A of the Act.

Disability Discrimination in Education

Section 4 of the Act defines disability to mean: (a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b) the presence in a person's body of organisms causing or capable of causing disease or illness, or (c) the malfunction, malformation or disfigurement of a part of a person's body, or (d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.
The Act defines disability to include past, future and presumed disability: 49A Disability includes past, future and presumed disability A reference in this Part to a person's disability is a reference to a disability - (a) that a person has, or (b) that a person is thought to have (whether or not the person in fact has the disability), or (c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or (d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).
Section 49B outlines what conduct constitutes discrimination on the ground of disability: (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator - (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, 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 who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, 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), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. ...
Section 49C provides: 49C What constitutes unjustifiable hardship In determining what constitutes unjustifiable hardship for the purposes of this Part, all relevant circumstances of the particular case are to be taken into account including-- (a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned, and (b) the effect of the disability of a person concerned, and (c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.
Section 49L provides: (1) It is unlawful for an educational authority to discriminate against a person on the ground of disability-- (a) by refusing or failing to accept his or her application for admission as a student, or (b) in the terms on which it is prepared to admit him or her as a student. (2) It is unlawful for an educational authority to discriminate against a student on the ground of disability-- (a) by denying him or her access, or limiting his or her access, to any benefit provided by the educational authority, or (b) by expelling him or her, or (c) by subjecting him or her to any other detriment. (3) Nothing in this section applies to or in respect of-- (a) a private educational authority, or (b) a refusal or failure to accept a person's application for admission as a student by an educational authority where the educational authority administers a school, college, university or other institution which is conducted solely for students who have a disability which is not the same as that of the complainant. (4) Nothing in subsection (1) (a) or (2) (b) renders it unlawful to discriminate against a person on the ground of disability where, because of the person's disability, the person requires services or facilities that are not required by students who do not have a disability and the provision of which would impose unjustifiable hardship on the educational authority. (5) Nothing in subsection (2) (a) renders it unlawful to discriminate against a person on the ground of disability where, because of the person's disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the educational authority.

Consideration

The complainant's evidence was essentially contained in the President's Summary of Complaint documents and the additional bundle filed in support of the leave application. The complainant submitted that the following evidence demonstrated that the university had contravened the Act: In the PhD meetings on 28 Feb 2023 and 9 March 2023, his supervisor, Dr Natalie Allen repeatedly embarrassed him because of his impairments after his mother died on 4 February 2024. Dr Allen sent harassing messages about his slowness and then deleted them. On 9 March 2023, Dr Allen shouted at the complainant, and she humiliated his cultural related communication style. In September 2023, Dr Allen refused to train him for further study (recorded by video) and asked him to practice with "Saudis". Also, Dr Hancock rejected the disability office's request to consider his deteriorated disability and she gave him an unsatisfactory PhD annual evaluation, as a result his PhD was terminated on 12 December 2023. He has been diagnosed with severe anxiety, and with symptoms of depression and severe physical symptoms like sudden strong muscle contractions, sleep problems, panic attack, nausea and abdominal pain (post traumatic stress and irritable bowel syndrome). His disability, type one diabetes went out of control. He has reduced PhD productivity since 29 May 2022 because of his disturbed mental/physical health, following up with healthcare providers and supporting agencies and seeking justice. Dr Natalie Allen revealed information about his mental health diagnosis on a shared online platform, which made others treat him less favourably and may be no one will work with him due to this. A letter from Farah Deeba, clinical psychologist confirming the complainants diagnosis of type 1 diabetes, depression, anxiety and stress. Email from Dr Elizabeth Holmes-Truscott and email from the complainant.
In order to establish that direct disability discrimination occurred, the Complainant needs to establish the following: 1. That he suffers a disability; and 2. That he was treated less favourably than another person, who did not have his disability, in the same or similar circumstances (sometimes referred to as "differential treatment"); and 3. That one of the reasons he was treated less favourably was because of, or on the grounds of, his disability, or characteristics of his disability (sometimes referred to as "the causation question").
The Complainant bears the onus of proof that he was treated less favourably "on the grounds of", "because of" or "due" (at least in part) to his disability or being a transgender person: see Hubbard v Roads and Traffic Authority of NSW [2010] NSWADT 99 at [56].
In order to demonstrate less favourable or differential treatment, the Complainant must identify a comparator, either real or hypothetical. If there is no actual comparator with whom to compare the complainant, then a hypothetical comparator may be considered: see Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5; Bassili v The Star Pty Ltd [2016] NSWCATAD 167 at [23].
The words "on the grounds of" have been paraphrased as "because of", "due to," or "a real" reason, a "genuine" reason or "true" reason for the treatment alleged to have been discriminatory: see Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28].
It is not the case that because a person has a disability and experiences something they perceive as "adverse" to themself, that the conduct is discriminatory simply because the person has a disability. The person needs to prove on the civil standard that the conduct impugned occurred "on the ground of", "due to" or "because of" the disability, or that was one of the reasons for the conduct. To put it another way, the Complainant is required to prove that a real reason, or the real reason, for the conduct impugned is their disability.
In order to establish that indirect disability discrimination occurred, the Complainant needs to establish the following: 1. That he suffers a disability; and 2. That he was required to comply with a requirement or condition by the Respondent; and 3. A substantially higher proportion of people without his disability comply, or are able to comply, with that requirement or condition; and 4. The requirement or condition is not reasonable in the circumstances of the case; and 5. The Complainant is not able to comply with that requirement or condition.
It is only once disability discrimination has been established, either on a direct or indirect basis, that it can be considered unlawful within the terms of s 49L of the Act. Section 49L makes unlawful certain conduct by educational authorities if done on the ground of a person's disability
Subsection 49L(1) is not relevant to the complainant because it addresses admission as a student, and the complainant was already a student of the university. To prove unlawful disability discrimination in education, the complainant must therefore demonstrate, pursuant to s 49L(2) that: 1. An educational authority (ie, the university) denied or limited him access to a benefit provided by the educational authority; or 2. The university expelled him; or 3. The university subjected him to "any other detriment"; AND 4. The university's conduct (in denying or limiting him access to a benefit, or expelling him, or subjecting him to a detriment) was "on the ground of" his disability (causation).
However, contraventions of s 49L(2)(b) and 49L(2)(a) are not unlawful if the university would experience "unjustifiable hardship" in accommodating the complainant's disability: ss 49L(4) and 49L(5) of the Act. Section 49C of the Act defines what is meant by "unjustifiable hardship" in the context of disability discrimination.
It is not in dispute that the complainant has the stated disability which I find meets the definition of "disability" under the Act.
I am not satisfied that the complaint is able to demonstrate, even at its highest, direct discrimination. He has not established that he was treated less favourably than another person, who did not have his disability, in the same or similar circumstances concerning his progression through the course because of, or on the grounds of, his disability. He has not established a comparator, which, in itself is not fatal. In any event, I note that the complainant does not allege direct discrimination.
As I understand the complaint, it is alleged the university required the complainant to complete his course within the prescribed time, without taking into condition his disability and other requirements.
When taking the complainant's complaint at its highest, I am satisfied that leave should be granted for him to proceed with his claim of indirect discrimination. This is because, for this leave hearing only, it is fair and just for a hearing to take place to consider all of the evidence on its merit about the complainant being required to complete his degree within 14 research periods, irrespective of his disability and reasonable adjustments being made. It is also relevant to consider whether the 'show good cause' determination was made in compliance of the same provisions of the Act. In my view, and on a preliminary basis for this leave hearing only, taking the evidence at its highest, the complainant has established, that he was required to comply with this condition, which, a substantially higher proportion of people without his disability comply, or are able to comply. Where the complainant has not complied, he suffered a detriment, that being, his candidature in the PhD course being terminated.
I am also satisfied that the provisions s 49L(2), (3) and (4) of the Act are satisfied on a pre-liminary basis for leave to be granted for the claim to proceed. The complainant's enrolment was terminated and he was expelled from the course, his course was terminated and his inability to complete the requirements of the course, appear to be based, at least partially, upon his disability. These are all matters which it is fair and just to be tested at a hearing.
I have considered the university's contention regarding arguable defences. In my view, given the above findings, these defences will need to be considered at a hearing, rather than, at a leave hearing.
I conclude that is fair and just for leave to be granted for the complaint of indirect disability discrimination to proceed against the university.

Complaint of race discrimination

My understanding is that the following allegations constitute race discrimination: The complainant was told by his PhD supervisor Dr Natalie Allen to practice with "Saudis".

Legislative provisions

Section 17(2) of the Anti-Discrimination Act provides that: (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. insert sections of the Act.
Race discrimination is defined in s 7: (1) A person ( "the perpetrator" ) discriminates against another person ("the aggrieved person" ) on the ground of race if the perpetrator: (a) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, 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) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, 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 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.
I understand the complainant's claim is one of 'direct' race discrimination as defined in s 7(1)(a). Two elements which must be proved to substantiate a complaint of direct discrimination are "differential treatment" and "causation": Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5. The treatment afforded to the complainant must be compared to the treatment that was or would have been afforded to a real or hypothetical person of a different race in the same circumstances or in circumstances which are not materially different.
In addition, race must be at least one of the reasons for the treatment: Anti-Discrimination Act, s 4A. When addressing the causation element of direct discrimination the Tribunal considers whether the person's race is at least one of the 'real', 'genuine' or 'true' reasons for the treatment: Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 per Gleeson CJ at 102, McHugh and Kirby JJ at 144. A causal link between the complainant' race and the alleged treatment would have to be established by inference from primary facts: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262.
In Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70], the following principles are apposite: 1. "... 2. an inference must be reasonably drawn on the basis of the primary facts; 3. an inference can be drawn from a combination of facts, none of which viewed alone would support that inference ; 4. 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"; 5. the inference must be a logical one, and not supposition; 6. an inference cannot be made where more probable and innocent explanations are available on the evidence."
In order to substantiate a complaint of race discrimination, the complainant would have to prove that; (1) he is a member of a particular race; (2) the University denied him access or limited her access to a benefit provided by the University or subjected him to a detriment; (3) in doing so, the University treated him less favourably than they treated or would have treated a student of a different race; (differential treatment) (4) at least one of the reasons for that treatment was Mr Alnajdi' race (causation).

Race

"Race" is defined in s 4 of the Anti-Discrimination Act to include: "colour, nationality, descent and ethnic, ethno-religious or national origin." It is not in dispute that the complainant' national origin is Saudi Arabia.

Denying a benefit or subjecting to a detriment

The termination of the complainant's enrolment in the PhD program, would, likely constitute subjecting him to a detriment.

Differential treatment

There is no reference in the President's Report or the complainant's evidence to a person who could serve as an actual comparator. A hypothetical comparator would be required. It is difficult to make an assessment of differential treatment without first exploring the reasons the university made the decisions it did.

Causation

The complaint only relied upon one statement allegedly made by Dr Allan. The university denies the conversation.

Conclusion

The reasons the university gave for terminating the complainant' candidature was because of alleged unsatisfactory progress within the course. This is a much more plausible explanation for the university's decision than the complainant's race being a factor.
I find there is no basis for the complainant's contention that his race was a factor in the university's decision to bring his candidature to an end.
The complaint of race discrimination lacks substance and it would not be fair or just for it to proceed.

ORDERS 1. Leave is granted under s96(1) of the Anti-Discrimination Act 1997 to proceed with: 1. a complaint of indirect disability discrimination pursuant to ss 49B(1)(b) and 49L(2),(3) and (4) of the Anti-Discrimination Act 1997. 1. Leave is refused under s96(1) of the Anti-Discrimination Act 1997 in relation to the remainder of the complaint. 2. The proceeding is to be listed for a case conference by direction of the Registrar.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 13 December 2024

At a glance

Court

Decision date

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Judgment (14 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (8)