CNK v University of Newcastle

Legislation

1. The applicant relies on sections 49B and 49L of the Anti-Discrimination Act 1977. Section 49L provides relevantly as follows. (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.
2. Section 49B provides relevantly as follows. (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 … 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 …. 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.

Issues for determination

1. In these proceedings, we understand the applicant to allege: 1. that the requirement that he achieve at least 75% in each of the two undergraduate courses as a condition of his enrolment, constituted indirect discrimination in breach of section 49L(1)(b), and 2. that Professor Abbo's failure to implement intervention strategies, his failure to invite the applicant to show cause, and his referral of the applicant to the appeal provisions of Rule 42, constituted direct discrimination in breach of section 49L(2)(a) or (c).
2. The issues for determination in respect of the complaint of indirect discrimination may be summarised as follows. 1. Whether a substantially higher proportion of persons without the applicant's disability achieve or are able to achieve at least 75% in each of the two undergraduate courses referred to above. 2. If so, whether the requirement that the applicant achieve 75% or more in those courses was not reasonable having regard to the circumstances of the case.
3. In summary, the issues for determination in respect of the complaints of direct discrimination are as follows: 1. Whether at all relevant times the applicant suffered from a disability. 2. Whether Professor Abbo failed to obtain (or implement) intervention strategies, failed to afford the applicant an opportunity to show cause why his candidature ought not be cancelled, or referred him to Rule 42, on the grounds of his depressive illness. 3. If he did, whether in doing so he treated the applicant less favourably than he treated, or would have treated, another person without his disability - namely, a depressive illness - in the same circumstances or in circumstances which are not materially different.

Applicant's evidence

1. Despite the directions of the Tribunal, the applicant did not file any statements of evidence. He told the Tribunal at an early stage that he relied on the evidence of his supervisors, tendered by the University. That evidence is summarised below. He provided voluminous documents which took the form of submissions. The Tribunal heard extensively from him, by way of submissions, over the course of the hearing. He was cross-examined.
2. The parties differed significantly in their submissions as to whether the facts amounted to discrimination on the grounds of disability. However, save for two issues, the Tribunal was unable to discern any significant differences between the parties in terms of the facts alleged, many of which were evidenced by contemporaneous documents, including correspondence and medical and other reports.
3. The two issues referred to were, first, whether the applicant suffered from a disability at all, and second, whether Professor Abbo, when he decided to cancel the applicant's enrolment, was aware of it. For the reasons given below, we are satisfied that, at the time when Professor Abbo decided to cancel his enrolment, the applicant suffered from a disability, but that Professor Abbo was unaware of it.
4. For those reasons, the most convenient course is to summarise the statements produced by the respondent by way of factual background, and to indicate the degree to which we are satisfied of the facts alleged in them, and any conclusion which we have drawn from them.

Evidence of Dr Altarawneh

1. Dr Altarawneh gave evidence by affidavit and oral evidence. From September 2011 to March 2014, he was a post-doctoral Fellow in Chemical Engineering at the University, with responsibility for supervising Masters and PhD research students. He was the principal supervisor of the applicant's research work for the Masters degree in Chemical Engineering. He said that by letter dated 28 September 2011, the University offered the applicant a place in its Masters Degree program in chemical engineering. That letter was before the Tribunal. It indicated that the program fees of $48,080 were waived by virtue of the award of a scholarship, that the topic for his research would be 'Heavy Metals in Serpentine-Derived Soils', that he would have two supervisors, and that he would be required to obtain at least 75% in the subjects of Thermodynamics and Kinetics & Reaction Engineering in the 1st semester of 2012.
2. By email dated 21 February 2012, the University indicated that his principal supervisor would be Dr Altarawneh, and his co-supervisor would be Professor Dlugogorski, and confirmed the change of his research title (at the applicant's request) to 'Oxidation of Non-Conjugated Polyenes'.
3. Dr Altarawneh recalled that the applicant would attend most, if not all, of the scheduled weekly meetings with his supervisors. However, he said that the applicant would rarely comply with his request to submit progress reports of his research at least 24 hours before each meeting. He said the reports he did provide were lacking in substance and detail, and demonstrated that the applicant lacked a strong understanding of the subject matter. He inferred that the applicant was not spending sufficient time to prepare the reports or on his research generally. Little follow-up work was done, he said, in response to the feedback he provided to the applicant.
4. To complete the research work for the Masters degree, he said, a student must possess a solid understanding of the fundamental concepts of chemical engineering. These, he said, were taught in the subjects of Thermodynamics and Kinetics & Reaction Engineering. He recalled that five other Masters degree students in Chemical Engineering were required to complete the same two courses, but could not recall what marks they were required to achieve.
5. From the evidence of Ms Kincaid, considered below, we are satisfied that all five of them were required to achieve a minimum of 75%.
6. He said that both subjects were undergraduate subjects, and that it should be 'relatively easy' for post-graduate students to complete them to a standard of 75% or higher. The purpose of imposing such a condition, he said, was to ensure that students attempting a Masters degree 'have sufficient knowledge and understanding of the key principles of chemical engineering'. He observed, "if a student is not able to satisfy the [75% requirement], they will be unlikely to complete their Masters'.
7. Dr Altarawneh recalled that at some time in 2012, the applicant showed him a medical certificate, and that he advised the applicant to take more time off study if he felt he was not fit to continue. There was before the Tribunal a medical certificate signed by treating general practitioner, Dr Murugasu of the University Health Service, on 29 June 2012, which did not specify an illness, but indicated that the applicant would be unfit for work from 29 June to 5 July 2012. There is also another letter, addressed to whom it may concern and dated 2 August 2013, from Dr Schien GP of the University Health Services. Dr Schien indicated that the applicant had been suffering from a medical condition for at least six months 'which has severely impacted his ability to fulfil course requirements and to function adequately in exams and assessments.'. It asked for 'an appropriate extension/special consideration'.
8. In the absence of any other certificates or doctor's letters prior to 24 August 2012, we consider it likely that Professor Altarawneh saw either Dr Murugasu's certificate, or Dr Schien's letter. Neither of these specified a diagnosis of depression or mental illness. That is consistent with Professor Altarawneh's evidence that he saw a certificate, and does not conflict with his evidence (considered below) that he was unaware of any depressive illness prior to a meeting on 24 August 2012.
9. Professor Altarawneh said that between June 2012 and August 2012, the applicant sat his exams in the two courses, but failed to obtain 60% in either. The circumstances surrounding those exams were explained in more detail in Professor Abbo's statement. He explained in July 2012, the applicant sat both exams. During each exam, a fire alarm was activated. He failed both exams, but applied for special consideration pursuant to the University's Adverse Circumstances Affecting Assessment Items Policy, and was granted special consideration in both cases. The exams were rescheduled, but he did not sit them. He therefore was recorded as having failed both exams.
10. Professor Altarawneh said that on 24 August 2012, he and Professor Dlugogorski met with the Dean of Graduate Studies, Professor Holmes, and Mr Horan, the Senior Graduate Studies Officer. At that meeting, the supervisors were shown a medical certificate signed that day by the applicant's treating general practitioner, Dr Patel, and a letter of referral of the same date from Dr Patel to psychiatrist, Dr Raggatt. Both documents were before the Tribunal.
11. In his certificate, Dr Patel indicated that the applicant was suffering from a 'medical condition' and would be unfit for duty till 21 October 2012. In his letter of referral, he said the applicant was from overseas, was 'unable to settle', had no friends, was 'unhappy in general', was experiencing symptoms of depression, and had started to take a prescribed anti-depressant medication (Lexapro) a month earlier with poor response. Dr Patel said he had advised the applicant to take time off from study.
12. Dr Altarawneh recalled that Professor Dlugogorski told Professor Holmes at that meeting that both supervisors were 'extremely dissatisfied' with the applicant's overall ability and his application to study, and wished to explore avenues of terminating his candidature. Professor Holmes replied that there was a need to take into account the applicant's medical condition notwithstanding his failure to meet the conditions of his offer of admission. Professor Holmes said he should be asked to show cause why his candidature should not be terminated.
13. Dr Altarawneh said he did not know prior to this meeting that the applicant suffered from depression.
14. There was also before the Tribunal a letter signed by Dr Patel on 28 August 2012, addressed to whom it may concern. In the letter of 28 August 2012, Dr Patel indicated that he first saw the applicant on 18 July 2012 with a 6-month history of poor sleep, weight loss and feeling unhappy. He was at that stage due to see Dr Raggatt on 13 September 2012. Dr Patel expressed the opinion that the applicant's mental illness, which he described as 'depression', had had a profound effect on his studies, causing him to perform poorly.
15. On 11 September 2012, Professor Holmes wrote to the applicant. That letter was also before the Tribunal. In it, he noted that the offer of admission to the Masters degree had imposed a requirement, among others, that the applicant complete two courses in first semester of 2012 and achieve a minimum grade of 75% in each. After noting the certificate and letter from Dr Patel summarised above, Professor Holmes strongly recommended that the applicant take leave of absence for the remainder of 2012 in order to 'get well before resuming your studies'. If he did take leave of absence, the Professor indicated that his scholarships would be suspended during the leave period and that the confirmation of enrolment would be cancelled. He also indicated that he would require a doctor's letter confirming the applicant was fit to resume study 'before your enrolment for 2013' and that he would still be required to obtain 75% in each of the two coursework subjects, or his enrolment would be cancelled. He invited the applicant to accept the offer to take leave within seven days.
16. Also before the Tribunal was a letter dated 19 September 2012 from Mr Horan to the applicant. In it, Mr Horan confirmed that the applicant had accepted the Dean's recommendation to take leave, indicating that his candidature was suspended from 26 September 2012, and that leave of absence had been approved. He said the overall scholarship tenure would not be affected, but that before re-enrolment in 2013, the applicant was required to 'provide a letter from your Doctor to state that you have recovered from your illness and are in a position to continue with your studies.' Mr Horan also noted: "Upon your return to your studies you will be required to complete the following two courses and achieve a minimum grade of 75% in each of these: CHEE3320 - Thermodynamics CHEE4320 - Kinetics & Reaction Eng [sic]"
17. On 21 December 2012, Dr Raggatt wrote a letter to the School of Chemical Engineering, which read: 'I write to confirm that [the applicant] is entirely fit to resume his studies in post-graduate engineering.'
18. A notation on the letter indicates that it was received by the Office of Graduate Studies on 16 January 2013.
19. Dr Altarawneh said the applicant resumed his studies on or about 30 January 2013. Dr Altarawneh said he assumed the applicant had provided the relevant Doctor's report, as he knew it had been a requirement prior to recommencing study, though he did not see the doctor's report himself. It was his understanding, he said, that the applicant 'was fit to resume his studies and did not have any ongoing issues regarding his health'.
20. By email dated 14 February 2013, the Senior Graduate Studies Officer, Ms Percival, confirmed the applicant's enrolment for Semester 1, 2013, and reminded him that he must 'achieve a grade of at least 75% in each of [Thermodynamics and Kinetics & Reaction Engineering]'. She drew his attention to the lecture timetable.
21. Dr Altarawneh explained that the applicant was allowed to re-enrol in both courses - i.e., so that he could attend the lectures - rather than simply re-sit the exams, to enable him to achieve a better understanding of the (undergraduate) coursework.
22. Dr Altarawneh noticed that in the months preceding the coursework exams, the applicant seemed to focus on the exams, rather than his research work. He was given four weeks off his research immediately prior to the exams so he could prepare for them. During the semester, Dr Altarawneh noticed the applicant was spending only 10 to 20 hours on his research rather than 40 hours, which was the norm for research students. He considered the time spent was insufficient. He considered the applicant had difficulty understanding simple chemical engineering concepts necessary for both coursework and research, and required detailed feedback from his supervisors. He recalled having to spend many more hours assisting the applicant than he would for other Masters candidates. He considered the applicant's progress slow and his work below standard. He considered the applicant still lacked the skills, knowledge and capability to complete the Masters degree.
23. Dr Altarawneh produced to the Tribunal a copy of a mid-year report on the applicant prepared in June 2013. It was divided into three parts - one part for completion by the applicant, another part for completion by his supervisors, and a third part providing for comment and review by the Dean of Graduate Studies. The form indicated that the applicant's responses would not be provided to the supervisors and vice versa. It indicated that the applicant had met with his supervisors on 20 June 2013 - presumably, to discuss the report - and completed his part of the report on 23 June 2013. As indicated below, the supervisors completed their part of the report on 30 June 2013, and it was reviewed by the Dean on 30 July 2013.
24. In this report, the applicant said that he devoted 30 to 40 hours per week or more to his research studies, rated his overall progress as 'good', and indicated there were barriers affecting his progress, but did not specify them.
25. His supervisors completed their part of the report on 30 June 2013. They indicated that he had not met their targets according to the plan of work developed with the candidate, observing that he was focussed on the two courses he had to repeat as part of his admission requirement, that he required frequent and detailed feedback, had difficulty understanding simple concepts, and that his progress was slow. They indicated that they were not satisfied with the contact they had with the applicant, and did not find their interactions with him productive. They complained that 'simple concepts and tasks need to be explained several time [sic], often with no follow-up by the student.' They reported that he spent only 10 to 20 hours on his studies. They rated his overall performance as 'poor', noting little improvement from the previous year. They observed: 'He operates at a level below that expected of a [research higher degree] student. The candidate spends slightly more time at his desk than prior to his leave of absence.'
26. On 30 July 2013, the mid-year report was reviewed by Professor Abbo, who by then had superseded Professor Holmes as Dean of Graduate Studies. He recommended further scrutiny and investigation, querying whether the applicant should be required to 'show cause'.
27. In about July 2013, Dr Altarawneh said the applicant sat the exams for the two coursework subjects, achieving 69% in Thermodynamics and 67% in Kinetics & Reaction Engineering, thus failing to satisfy the condition of his enrolment. Dr Altarawneh said he did not know that the applicant's performance was being affected by depression. He considered that the applicant lacked the relevant knowledge and understanding of basic chemical engineering concepts required to obtain 75% in the coursework.
28. He produced to the Tribunal a letter signed on 1 August 2013 by Professor Abbo and addressed to the applicant, which read as follows: 'Your offer of admission to the Master of Philosophy (Chemical Engineering) dated 28 September 2011 detailed a condition that you undertake CHEE3320 - Thermodynamics and CHEE4320 Kinetics and Reaction Engineering in Semester 1, 2012 and obtain a grade of 75% for each. Rule no 8 of the Rules Governing Higher Research Degrees states: 8. Any conditions stated in the offer of admission must be met. Failure to do so may result in cancellation of candidature. You received a fail result in both of these courses on your first attempt and you were provided with a further opportunity to meet these requirements after a period of leave. You were advised in writing on 11 September, 2012 by the Dean of Graduate Studies, that upon recommencement of your studies in 2013 you would be required to achieve 75% in each course and if you were unable to do so, your enrolment would be cancelled. As you achieved 69% for CHEE3320 and 67% in CHEE4320 on your second attempt I have to advise that you have not satisfied the University's requirement in relation to your continued enrolment in the Master of Philosophy (Chemical Engineering) program and your enrolment has been cancelled. …. In accordance with Rule 42 of the Rules Governing Higher Research Degrees you may appeal against this decision on procedural grounds only within 20 working days from the date of this letter. …. Appeals are referred to the Deputy Vice-Chancellor (Research) for consideration.'
29. It is common ground that Rule 42 provided a right of appeal only where a student's candidature is terminated. In this case, there had been a cancellation of enrolment rather than a termination of candidature, so that the appeal rights in Rule 42 were not attracted. Nevertheless, the applicant did appeal, his appeal was considered on its merits by the Acting Deputy Vice-Chancellor, Professor Hodgson. In her letter of 21 October 2013, Professor Hodgson indicated that the appeal was dismissed on the basis that the decision of Professor Abbo had been procedurally fair in in accordance with the Rules Governing Research Higher Degrees. The dismissal of the appeal does not form part of the complaint under consideration by the Tribunal.

Evidence of Professor Dlugogorski

1. Professor Dlugogorski gave evidence by way of an affidavit and oral evidence. He said that, from 2004 to 2013, he had been a Professor in the School of engineering at the University, and that from 2013 had been a conjoint Professor. He was also the Director of Priority Research for Energy from 2006 to October 2013. He had supervised Masters and PhD research projects in the School of Engineering since 2002.
2. On 10 January 2012, he said that he was appointed a co-supervisor of the applicant with Dr Altarawneh in relation to the applicant's research work. Dr Altarawneh was the principal supervisor. Both supervisors had weekly meetings with the applicant. Professor Dlugogorski recalled that the applicant attended most of these meetings.
3. The applicant, he said, was required to produce a written report on the progress of his research at least 24 hours before each meeting. However, he said that the applicant rarely did so. Instead, he would provide the reports a few hours or minutes before the meetings, and the reports were often lacking in detail and below the standard expected of a candidate for a Masters degree.
4. Professor Dlugogorski said that the Masters degree was an advanced postgraduate research degree which was very difficult and required students to be diligent and dedicated, and to have a detailed knowledge and understanding of the fundamental concepts of thermodynamics, kinetics and reaction engineering. He noted that the applicant was required to achieve a mark of at least 75% in Thermodynamics, and the same in Kinetics and Reaction Engineering ("Kinetics"). Both were undergraduate courses. He expressed the view that, if a student could not achieve greater than 75% in these courses, they were unlikely to be able successfully to complete the Masters degree. For Masters or PhD students, however, the professor did not consider it was likely to be difficult to obtain a mark of 70% or 75%, and generally Masters degree students under his supervision were required to obtain such results. As the average mark for undergraduate students in those subjects was about 69%, the Professor considered that a requirement to obtain 70% (though in the applicant's case, the requirement was to achieve 75%) or more was a requirement to do slightly better than an average undergraduate student. Most if not all his Masters students obtained over 85% in these undergraduate subjects.
5. Professor Dlugogorski's task, with Dr Altarawneh, was to guide and assist the applicant in relation to the direction, design and reporting of the research component of the degree. Professor Dlugogorski also told the Tribunal in cross-examination that he delivered the coursework in Kinetics.
6. By about August 2012, he said, the applicant had failed to obtain more than 60% in each of the two undergraduate courses. From the letter of Professor Abbo quoted above, we infer that he failed both exams. On 24 August 2012, both supervisors met with the Dean of Graduate Studies, Professor Holmes. Also present was a Mr Horan. Professor Dlugogorski's account of that meeting is consistent with that of Dr Altarawneh above. Professor Dlugogorski said that until he was provided with the medical certificate of Dr Patel at that meeting, he had been unaware the applicant had suffered from depression.
7. Professor Dlugogorski said that the applicant agreed to take leave of absence, with the approval of both his supervisors.
8. There was before the Tribunal a report from treating psychiatrist, Dr Raggatt, addressed to the Department of Engineering and dated 21 December 2012. Dr Raggatt said, "I write to confirm that [the applicant] is entirely fit to resume his studies as a post-graduate student in chemical engineering."
9. Professor Dlugogorski said he did not see Dr Raggat's letter of 21 December 2012, confirming that the applicant was fit to resume study, but said that when the applicant resumed his studies in early 2013, he understood that there were no health issues affecting the applicant's performance, because he knew the applicant had been required to provide a doctor's letter indicating his fitness to resume study, and assumed - rightly - that he had complied with that requirement.
10. He said that in February 2013 the applicant was permitted to re-enrol in both courses - that is, to attend the lectures - rather than simply be required to re-sit the examinations. We infer that this was designed to give the applicant the optimum chance to satisfy the 75% condition of re-enrolment.
11. Professor Dlugogorski noted an improvement in the applicant's application to study. He was attending university during scheduled hours and devoting more time to his work. However, he noted that application to research work and attendance at the office decreased as the semester progressed. He said that his students were required to attend the office during normal office hours - that is, 9am to 5pm - and that most Masters students spent at least 40 hours per week on research. However, he said that, though the applicant initially was attending during office hours, as the semester progressed he was spending only about 10-20 hours per week in the office. Despite repeated requests from Professor Dlugogorski, he failed to attend the office for the requisite time. The applicant's primary focus, according to Professor Dlugogorski, appeared to be the coursework rather than research work.
12. As in 2012, he said that both supervisors allowed the applicant to concentrate entirely on the coursework in the four weeks leading up to the exams, which he sat in July 2013. Notwithstanding this assistance, the applicant obtained only 69% in Thermodynamics and 67% in Kinetics.
13. Professor Dlugogorski said the applicant did not complain to him of depression prior to the exams, and that he was not aware that it was affecting the applicant's performance. He was of the view that the applicant lacked sufficient knowledge and ability to obtain the required grades in his coursework. He also considered that the applicant otherwise lacked the ability to complete the Masters degree requirements.
14. On 18 July 2013, he said, both supervisors informed Professor Stockenhuber of the School of Engineering by email that the applicant had failed to meet the 75% requirement. On 29 July 2013 Professor Stockenhuber asked Professor Dlugogorski to comment on the student's ability to undertake a PhD. On 30 July 2013, Professor Dlugogorski replied: "The student has no such ability. He has difficulty grasping simple concepts is unable to work independently and has no ability to design his experimental apparatus or to perform calculations. He operates at a level of a below-average undergraduate student. He has no ability for critical thinking and lacks knowledge in the discipline. His weekly reports are usually at the level of a high school student. This is reflected in him being unable to meet the entry requirements. There have [sic] been very little or no improvement in his performance this year besides him starting to come to work and no change in his abilities since he arrived in Newcastle. We have reported all these problems in the student's reports. All work has to be done for him either by me, [Professor Altarawneh] or technicians."
15. On 1 August 2013, this email was copied to Professor Abbo, who had succeeded Professor Holmes as Dean of Graduate Studies. On the same date, Professor Abbo wrote to the applicant explaining that his candidature had been cancelled for failure to meet the 75% requirement in coursework The terms of the letter are extracted above.
16. The evidence of Professor Dlugogorski is consistent with that of Dr Altarawneh and, to the extent summarised above, is not contradicted by other evidence. For those reasons, we accept their evidence and make findings of fact in accordance with it.

Evidence of Ms Kincaid

1. Ms Kincaid, the University's Executive Officer of the Office of Graduate Studies, also gave evidence by of affidavit. She said that, in the first semester of 2012, the applicant was one of six students studying for higher research degrees in Chemical Engineering. All of them, she said, were required to obtain a minimum of 75% in a course or courses. She did not identify the courses concerned, but from the evidence of Dr Altarawneh considered above, we are satisfied that they were the same two courses in which the applicant was required to achieve at least 75%.
2. She said that in February 2013, the enrolment of a student studying for a PhD in Information Technology was cancelled for failure to achieve at 75% in a subject described as 'Hons I: Research Methods'. It is not clear whether that failure constituted a failure to satisfy the requirements of enrolment or some other requirement.
3. Nevertheless, her evidence so far as it went was unchallenged, and we accept it as true. It established that the applicant was not alone in being required to achieve 75% or more in a designated course or courses, as a condition of enrolment.
4. There is no evidence as to whether or not the other five engineering students upon whom the 75% condition was imposed suffered from the applicant's disability. There is no evidence as to the circumstances in which the enrolment of the PhD student in Information Technology was cancelled, or whether that student suffered from any disability.
5. Professor Abbo gave evidence by way of affidavits and oral evidence. He said he had been the Dean of Graduate Studies at the University from June 2013 to April 2015. On 1 August 2013, he said, he decided to cancel the applicant's enrolment in the Masters degree.
6. When he made that decision, he said, he had no knowledge that the applicant suffered from any disability, and did not make his decision because of or by reason of any alleged disability. He said that, though the applicant had failed to meet the 75% condition in his coursework, so far as he knew no application for special consideration had been made pursuant to the Adverse Circumstances Affecting Assessment Items Policy. He was aware that it was a condition of enrolment that he achieve 75% in the coursework. He had seen Professor Holmes' letter of 11 September 2012, and acknowledged that he knew that the applicant had suffered some kind of illness and had been given leave of absence on the basis that he be declared fit to resume his studies before returning to study. He knew that the applicant had provided a certificate prior to commencing 1st Semesters in 2013 that he entirely fit to resume his studies, but did not recall actually seeing the medical certificate. He said he had no knowledge of any other medical condition reported to the University.
7. Professor Abbo was cross-examined, and did not resile from his evidence. There is no evidence to the contrary. We are satisfied that, when he made the decision to cancel the applicant's enrolment, he did not know that the applicant was suffering from any disability, including a depressive illness. We are satisfied that his decision to cancel the applicant's enrolment was not made 'on the grounds of' any disability.
8. Professor Abbo said that he had specific regard to the contents of Rule 8, and the applicant's failure to satisfy the 75% condition 'despite having ample time to study for the course [sic] and take examinations'. That is consistent with the contents of his letter of 1 August 2013, and we accept it as true.
9. Professor Abbo said that, before taking any action, he thought it appropriate to ask the applicant's supervisors whether there was any reason against cancellation of enrolment. He asked Associate Professor Stockenhuber to speak with them, seek and update on the applicant's progress, and any reasons against cancellation they might have. He produced to the Tribunal a series of emails between Professor Stockenhuber and Professor Dlugogorski. They show that on 29 July 2013, Professor Stockenhuber sought Professor Dlugogorski's views, that he responded by email of 30 July 2013 (whose contents are set forth above), and that Professor Stockenhuber copied this to Professor Abbo on 1 August 2013.
10. Professor Abbo said: 'Having reviewed that email [from Professor Stockenhuber on 1 August 2013 with Professor Dlugogorski's assessment of the applicant] I was satisfied that there was no reason to depart from the usual course to cancel [the applicant's] enrolment upon failure of his [75%] condition.'
11. He added that no health issues were raised with him. He also noted that no application for special consideration was made by the applicant pursuant to the Adverse Circumstances Affecting Assessment Items Policy.
12. He said that he was not required by the Rules to offer the applicant an opportunity to show cause, and did not do so in any other decisions he had taken to cancel enrolments. He said the applicant was treated in this respect no differently from any other student.
13. He said that, in the case of a student who did not have a disability, he would have made the same decision - that is, a decision to cancel the student's enrolment without opportunity to show cause - in circumstances where, like the applicant, they were enrolled in the Masters degree in chemical engineering after completing an undergraduate degree overseas, had failed to comply with a condition that they achieve 75% in two courses fundamental to their research, had taken leave of absence and returned after being declared fit to resume study, had been offered a scholarship of $22,000 and a waiver of fees in the sum of $48,000, and was regarded by his supervisors as not having performed to a reasonable standard of research or achieved a reasonable level of progress.
14. Professor Abbo was extensively cross-examined. He did not resile from his evidence. No evidence was brought to contradict his evidence, and we make findings in accordance with it.
15. There was before the Tribunal a report of treating psychiatrist, Dr Raggatt, addressed to the University's Graduate Studies Office and dated 22 October 2013. It read as follows: '[The applicant] is suffering a severe major depressive illness which has been impacting his ability to complete his studies and exam performance over the last six - nine months. I'd be grateful if you could take his into account when determining his grading and status in the university.'
16. From its date, it is likely that this report was obtained by the applicant in support of his appeal to Professor Hodgson. Having regard to the opinion expressed by Dr Raggatt and to his expertise as a psychiatrist, we are satisfied that the applicant suffered from a major depressive illness from about February 2013 which prejudiced his ability to study and perform in exams. It follows, in our view, that for the purposes of the legislation he was suffering from a disability when Professor Abbo decided to cancel his enrolment.
17. When Dr Raggatt's certificate of 22 October 2013 is read together with his letter of 21 December 2012, which certified him fit to resume studies, it is unlikely that the applicant was suffering from an illness of that nature between December 2012 and February 2013. If he did suffer from any mental illness in that period, it was unlikely to have been sufficiently symptomatic to affect his studies. We are not satisfied that he was suffering from a disability in that period.
18. To the extent relevant, we are also satisfied on the medical evidence that in first semester of 2012, his studies were adversely affected by symptoms of depression, but there is no evidence before us of a precise diagnosis in that period.

Direct discrimination - failure to afford an opportunity to show cause

1. We are satisfied that, when he made the decision to cancel the applicant's enrolment without affording an opportunity to show cause, Professor Abbo did not know of the applicant's mental illness or its effect. It following that he did not make that decision on the grounds of the applicant's disability. For that reason, the complaint of direct discrimination by reason of a failure to afford an opportunity to show cause fails.
2. We are satisfied that, in the circumstances in which the applicant found himself after failing his exams for the second year running in 2013, Professor Abbo would not have treated another student without mental illness any differently - that is, that he would not have offered a student without mental illness an opportunity to show cause in the same circumstances. We are not satisfied that, in failing to afford an opportunity to show cause prior to cancelling the applicant's enrolment, Professor Abbo treated the applicant any less favourably than he would have treated another person without the applicant's disability in the same circumstances or circumstances which are not materially different. For that reason also, the complaint of direct discrimination on this ground fails.

Direct discrimination - omission to obtain or implement intervention strategies

1. Professor Abbo agreed that he had not implemented any 'intervention strategy' in favour of the applicant. He said that by the time the matter was referred to him, the applicant had already failed both undergraduate courses, thereby failing to comply with the conditions of his enrolment. It was too late for 'intervention'. In any event, Professor Abbo was unaware of the applicant's disability, and we are satisfied that his failure to refer the applicant to implement intervention strategies was not a decision made on the grounds of his disability. For that reason, the complaint of direct discrimination on this grounds fails.
2. There is no evidence that in the same circumstances - that is, where a student had already failed to achieve a 75% mark in courses as a condition of enrolment - Professor Abbo would have implemented an intervention strategy in the case of a student without the applicant's disability. For that reason also, the claim of direct discrimination on this ground fails.
3. Professor Abbo conceded that, had he been aware of the applicant's mental condition prior to the applicant sitting his exams, he would have directed the applicant to the University's support services.
4. A Statement of Account produced by the applicant to the Tribunal discloses that he had in any event availed himself of those support services on 7 January 2013, 21 January 2013 and 18 February 2013, by consulting with Mr Pascoe, a psychologist within the University Health Service, on referral from Dr Raggatt. He had also availed himself of those services in 2012 by seeing Dr Murugasu and Dr Schien. The applicant was well aware of the existence, nature and availability of those services before Professor Abbo became involved. He needed no guidance from Professor Abbo in that regard. For that reason, any failure by Professor Abbo to refer him to those services prior to the exams, even if Professor Abbo had been aware of a need for them, did not subject the applicant to any unfavourable treatment, or treatment less favourable than would have been afforded to a student without his particular disability. For that reason, even if Professor Abbo had been aware of a need for such services prior to the exams - which we are satisfied he did not - the complaint of direct discrimination on this ground would fail.
5. There is no evidence that Professor Abbo would have directed another student without the applicant's disability to support services, or implemented any other intervention strategy, in circumstances where, as here, Professor Abbo was unaware that the student had need of such services. For that reason also, the complaint of direct discrimination by reason of a failure to obtain or implement intervention strategies fails.

Direct discrimination - incorrect reference to appeal rights under Rule 42

1. In respect of the incorrect reference to the appeal provisions of Rule 42, Professor Abbo conceded that the Rules did not expressly provide for a right of appeal where, as here, a student's enrolment had been cancelled. Though his evidence is not entirely clear on the point, we infer that he believed that a student either had an unwritten right of appeal from cancellation of their enrolment, or ought to have such a right. He pointed out that Rule 42, though it applied in different circumstances, was the only rule which referred to a right of appeal. In his affidavit, he did not expressly concede that he had made a mistake, but we think it likely that he referred to Rule 42 in error. Whether or not he was in error, we are satisfied that he was unaware of any disability on the part of the applicant when he wrote the letter of 1 August 2013 in which the reference was made. For that reason, the reference cannot have been made on the grounds of the applicant's disability, and the complaint of direct discrimination on that grounds fails.
2. Professor Abbo denied that in referring to Rule 42 he treated the applicant any less favourably than he would have treated a person without the applicant's disability in the circumstances which faced the applicant. He said he would have 'been equally keen' to ensure that another student had such a right of appeal.
3. The incorrect reference to Rule 42 did not, in our view, subject the applicant to any detriment. The reference to an appeal right by Professor Abbo, though it may have been misconceived, effectively invited him to appeal from the cancellation. The applicant accepted that invitation and appealed. His appeal was considered and determined by Professor Hodgson. In her letter to the applicant of 21 October 2013, she pointed out that Rule 42 did not entitle him to an appeal, but that she had 'undertaken a review of your appeal in good faith given that the opportunity to appeal was outlined by the Dean of Graduate Studies in his letter dated 1 August 2013'.
4. As that letter demonstrates, the effect of Professor Abbo's incorrect reference to Rule 42 was to afford the applicant a right of appeal not granted by the Rules. It afforded the applicant a benefit to which, it seems to us, he was not entitled. Notwithstanding the outcome, there can be no suggestion of unfavourable treatment. He was not treated 'less favourably' than another person by reason of Professor Abbo's error. He was treated very favourably indeed, notwithstanding the outcome of the appeal. For that reason also, the claim of direct discrimination by reason of the reference to Rule 42 fails.
5. Even if the reference to Rule 42 had subjected the applicant to some detriment - contrary to what we have found - there is no evidence that a person without the applicant's disability would have been treated any differently in the same circumstances or circumstances not materially different. On the contrary, we are satisfied that in the same circumstances, or in circumstances not materially different, Professor Abbo would have treated a student without the applicant's disability in the same manner. For that reason also, the complaint on this ground fails.

Indirect discrimination

1. It remains to consider the complaint of indirect discrimination. To succeed on this ground, an applicant must prove that he or she was subjected to a requirement with which a substantially higher proportion of persons without that disability comply or are able to comply. In practical terms, an applicant must identify a base pool of people to whom the requirement is directed, divided into groups of those with the relevant characteristic and those without. The applicant must then demonstrate that the proportion of the group without the characteristic who comply with the requirement or are able to comply with it, is substantially higher than the proportion of the group with the characteristic who comply or are able to comply: Fluor Australia Pty Limited v Tanevski (2009) NSWADTAP 39.
2. The relevant requirement in this case was the condition that a higher research degree student achieve at least 75% in each of two undergraduate courses. In his final written submissions, produced after the hearing, the applicant identified the base pool as all research higher degree students in the Chemical Engineering department at the University of Newcastle who are admitted enrolled subject to a 75% requirement in undergraduate courses. On the evidence, there were six such students. In his oral submissions at hearing, he had contended that the base group should be divided into persons suffering from depressive illness and persons not suffering from it. In his final written submissions, he said that all but two of the six students had satisfied the requirement. He was one of the two that did not. Noting Professor Dlugogorski's evidence that the other student who had failed to achieve the 75% requirement did not suffer from depression so far as he knew, the applicant said a greater proportion of the group without depressive illness satisfied the condition than the proportion of the group with depressive illness.
3. That result, it seems to us, does is not substantiated by the evidence. Putting to one side the fact that a base group of six is too small to establish a substantially higher proportion, there is no evidence as to whether any of the four students who satisfied the condition were affected by depressive (or other) illness.
4. The respondent identified the base pool as graduates seeking entry to higher degrees, either at the University of Newcastle or at all New South Wales universities. It submitted that there is no evidence of a substantially higher rate of compliance by one group within that base pool than the other.
5. However the base pool is characterised, we are not satisfied that graduates with depressive illness seeking entry to, or enrolled in, higher degrees (including higher degrees in Chemical Engineering) are less able to comply with a requirement to achieve 75% in undergraduate courses generally, or specifically in the two undergraduate courses which Mr Mekonen and his colleagues were required to undertake. For those reasons, the complaint of indirect discrimination fails.
6. Even if there were evidence tending to show that a substantially higher proportion of people without the applicant's disability complied or were able to comply with the condition of enrolment, and that evidence was accepted, to succeed the applicant must also prove that the requirement was unreasonable in the circumstances. The reason for the imposition of the 75% condition was set forth in the affidavits of the two supervisors. Unless a candidate were able to comply with that condition, they were unlikely to be able successfully to complete the Masters degree program. It was, in effect, an early test of a candidate's likelihood of successful completion, administered by the University in the first semester of candidature, before the candidate (or, in the case of a candidate whose fees were waived, the University) incurred further expenses in the administration of the degree course. No evidence was brought to demonstrate that such a requirement was unreasonable. On the contrary, it seems to us that it is quite reasonable for a University to require a Masters degree student to demonstrate, early in the course, that they have the skills to complete it. In the proper administration of a higher degree by research, a University needs to know, and is entitled to test, whether its candidates have sufficient knowledge and skills to complete the higher degree. It seems to us that the requirement was reasonable.
7. Even if there had been appropriate and convincing evidence as to comparators, the complaint of indirect discrimination would fail on this basis.
8. For the reasons given, the complaints of direct and indirect discrimination are dismissed. 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: 11 August 2016