1. The respondent should conduct an independent review of her work and although it was her responsibility to "establish the evidence," she had done everything she could to do so and that as a result, the onus of proof should shift to the respondent.[74] The "turning point" was in 2022 when she first began to fail units in the course[75] and the appropriate remedy is to have an external independent review.[76]

1. The respondent referred to their submissions made concerning the interlocutory dismissal application made on the first day of hearing. In relation to the need for the applicant to establish causation, the respondent referred to Complaint 201931 Australian Capital Territory_[77]_ (Complaint 201931). The respondent said that at no stage prior to 8 October 2024 did Dao make any complaint or allegation that she was discriminated against in the results given to her on the basis of any of the protected attributes. At its highest, there is an allegation, but there is no objective evidence that would elevate the applicant's claim beyond a "speculative statement."[78]
2. The unchallenged evidence is that the applicant failed the assignments because the applicant did not meet the academic requirements to pass. As a result, the applicant must fail at the first hurdle in her claim of discrimination. Even if Dao meets the first hurdle, it is a rebuttable presumption only that she has been discriminated against, and that the respondent has effectively rebutted the presumption. The marking and moderation were all done "blindly". Even if students affixed their student number, staff could not possibly remember student numbers as there were over 80 students in the Master's Course. Students were deidentified and random numbers given. On one assignment failed by Hanley, Dao had erroneously recorded an incorrect student number, so even if student numbers were not deidentified, Hanley could not have been influenced by the student number as it was incorrect.[79]
3. In relation to whether the obtaining of a PhD and even more so, a PhD from the ANU can amount to a protected attribute of occupation , trade, profession or calling, the respondent referred in detail to the Hansard Debates that accompanied the second reading speech pertaining to the relevant amendment bill to the Discrimination Act, introducing as a protected attribute, "profession, trade, occupation or calling." The respondent argued that it was clear from the Hansard transcript that academic qualification did not fall within any of the examples provided at that time. In any event, the applicant was arguing that it was due to an ANU qualification, and this made it even more removed from the intention of the amending legislation.[80]
4. The respondent referred to Complaint 201931 and said, that this was the only case that he could locate in which the relevant attribute was not about somebody in an actual occupation or paid employment. In that case the complainant was an advocate for the Serbian Orthodox Church which was described as a "calling" as an advocate and spokesperson for their community.[81]

1. There was no doubt that the applicant believes strongly in the rightfulness of her case that she has been unlawfully directly discriminated against and treated unfairly by the respondent. However, believing strongly that one has been unlawfully discriminated against does not mean that an applicant will necessarily succeed in the complex area of discrimination law.
2. Section 18(2) of the Discrimination Act makes it unlawful for an educational authority to discriminate against a student by denying the student access, or limiting the student's access, to any benefit provided by the authority or by expelling the student or by subjecting the student to any other detriment. It is not in issue that the respondent is an educational authority within the meaning of the section.
3. Although Dao did not specify which subsection of section 18(2) that she relies upon, the Tribunal agrees with the respondent's submission that subsection 18(2)(c) would apply to the circumstances alleged by the applicant. That section makes it unlawful for an educational authority to discriminate against a student by subjecting them "to any other detriment." The onus is upon the applicant and she has to prove her case on the balance of probabilities.[82]

Was the applicant subjected to a detriment under section 18 of the Discrimination Act?

1. The applicant says that the alleged detriment was her inability to complete the course, practice as a speech pathologist, her physical and psychological injury, negative impact to her reputation and financial loss. The respondent denies that there has been any detriment and argued that the applicant can continue with her degree and can re-enrol in both Professional Practice and Special Topics.
2. Failing an assignment and/or failing a course can have very significant outcomes for a student. The failure may give rise to significant reputational, economic and psychological consequences. However, failing by itself does not mean that the student has been subjected to a detriment.
3. The Tribunal accepts there has been a significant impact upon the applicant as a result of her failing the "must pass" assignments and in turn the units in the course. The applicant provided supportive material from her medical practitioner Dr French and from her psychologist Mr Sutherland.[83] The respondent did not argue that there had not been health impacts upon the applicant. The Tribunal accepts the evidence of the applicant and of Dr French and Mr Sutherland on this point. However, the applicant has to establish that the respondent has discriminated against her.

Did the respondent discriminate against the applicant?

1. In order to determine whether the respondent has discriminated against the applicant, I need to consider the operation of both section 8(2) of the Discrimination Act concerning the meaning of direct discrimination and section 53CA of the HRC Act as to how discrimination complaints are made and responses determined when considering the applicant's claim of unlawful discrimination. This becomes further complicated when the "rebuttable presumption" provided by section 53CA(3)(a) of the HRC Act is considered.

Rebuttable presumption under section 53CA of the HRC Act

Does the rebuttable presumption arise under section 53CA(2) of the HRC Act?

1. Section 53CA(2) of the HRC Act provides that it is a "rebuttable presumption" that direct discrimination has occurred if the complainant establishes that the treatment or proposed treatment is "unfavourable". The onus of establishing the discrimination rests upon the applicant and the requisite standard is on the balance of probabilities. If the applicant can do that on the balance of probabilities, it is only then that the onus shifts to the respondent to rebut the presumption on the balance of probabilities of unlawful discrimination. This presumption arises under section 53CA(2)(a) if the applicant establishes that the treatment is unfavourable. Although the Tribunal accepts that Dao has gone to considerable lengths to obtain evidence from suitably qualified independent academics that expressed the opinion that the marks awarded to her by Hanley or Edmondson were outside the range that could be explained on the grounds of differences in academic judgement, she has not been able to do so.
2. Dao argued that because she had tried to obtain the evidence the onus of proof should then shift to the respondent. With respect to the applicant, the onus of obtaining the evidence remains upon her until she can establish that she has been treated unfavourably. It is only then that the onus shifts to the respondent in seeking to rebut the presumption of discrimination.
3. If she had obtained the evidence, then the respondent may have sought further evidence to counter her evidence, but that eventuality has not occurred. The applicant argued that other students supported her position, but no evidence of the support was provided. Even if Dao had been able to provide evidence of student support, it would carry little, if any weight, as fellow students would not be regarded as an independent witnesses and more importantly, they would not be regarded as expert witnesses.
4. Dao had the opportunity of cross examining both Hanley and Edmondson. Both Hanley and Edmondson were clear and unequivocal that Dao did not pass the assessments because she did not meet the required standards either on the original submission of the work or on re-submission.
5. The applicant sought to distinguish Pojohishgar on the basis that she had a significant history of unfair treatment. In my view, the applicant did not establish any history of unfair treatment. To the contrary, Hanley and Edmondson had passed her work on previous occasions, had communicated and met with her when she resubmitted assessments and on one occasion had facilitated Dao being allowed to resubmit an assignment on a third occasion.
6. I accept the evidence of both Hanley and Edmondson that Dao was assessed the same as other students and that Dao did not meet the academic requirements of the assessments to pass. They explained in detail the marking of assessments, marking rubrics and, where necessary, moderation of marks. They elaborated upon the systems in place to ensure that students were deidentified when assessments were marked or moderated by other academics. This evidence countered the applicant's argument that she had been identified by her unique student number. The applicant was afforded the opportunity to resubmit assignments, and as previously mentioned, to resubmit an assignment twice which was more than what was normally permitted, as evidenced by the unit outlines. Both Hanley and Edmondson provided feedback to Dao and other students and where possible met with the applicant to discuss her work.
7. In my view, the respondent's evidence establishes that any alleged unfavourable treatment alleged by the applicant, that is, the fail marks awarded to her in the assessments and units only occurred because it was determined by each of the markers that the work submitted by the applicant did not meet the academic standard to receive a pass grade.
8. For the reasons set out above, the Tribunal is satisfied that the applicant has failed to establish the elements that section 53CA(2) of the _HRC Ac_t in relation to any of her complaints of direct discrimination, so as to give rise to a rebuttable presumption that discrimination has occurred.
9. However, if my finding is incorrect, and Dao's treatment was unfavourable, then I am required by section 53CA(3) of the HRC Act to consider whether the respondent has established that the treatment was not because of a protected attribute and thereby rebut the applicant's complaint of direct discrimination.

Has the respondent rebutted the presumption under s53(3) of the HRC Act?

1. Pursuant to section 53CA(3)(a) of the HRC Act, the presumption is rebutted if the respondent establishes that the unfavourable treatment did not occur because of a protected attribute of the applicant.
2. I accept the submissions made by the respondent and find that the alleged unfavourable treatment did not occur because of a protected attribute of the applicant. In my view the applicant did not pass the assessments because she did not meet the necessary academic standard. I have already referred to the evidence of Hanley and Edmondson and I have accepted their evidence.
3. In cross examination of Hanley by the applicant, Hanley was asked a number of questions about the conferring of Hanley's PhD; about the SIM intensive in 2022; the marking process and deidentifying of students; and assignment feedback. Edmondson was asked about the reference to the "disputed' article from a 2024 workshop; Edmondson's access to email; and conversations about students with PhDs.
4. Both Hanley and Edmondson responded to the questions as best as they could and made concessions where appropriate. The Tribunal is satisfied that the applicant's work was deidentified when assessed and that as a result they did not know the identity of the applicant when assessing her work and to the extent it was necessary, met with the applicant and provided appropriate feedback. The Tribunal is also satisfied that at no time whilst they were interacting with the applicant did the applicant make any complaint of discrimination.
5. The Tribunal also has considered the documents relating to the applicant's student grievance and the appeal and notes that at no time prior to the filing of the application in the HRC did the applicant make an allegation that Hanley, Edmondson or the respondent were discriminating against her based upon the attributes that she now relies upon in her application. There may be reasons for this, but it significantly weakened the applicant's claim that she did not in her written statement, oral evidence or in her final submissions attempt to provide any explanation as to why this was so.
6. It may have been possible for the applicant to extract some supporting evidence from Hanley and/or Edmondson in cross examination. The marking regime was discussed at length during the hearing including where necessary, moderation and cross marking. It was clear that the respondent had in place systems that ensured that students were not able to be identified in their submitted work. Where work included a video of a student in a clinical situation, the video was marked after the marking of written work to ensure that there was no possibility that the marker had seen the video and thereby identified a student prior to marking their written work.
7. Therefore on the assumption that the rebuttable presumption arises under section 53CA(2), I find that the respondent has rebutted the presumption pursuant to section 53CA(3) of the HRC Act.

Was the applicant treated unfavourably because of a protected attribute?

1. Under Section 8(2) of the Discrimination Act direct discrimination, has two limbs. The first requires the complainant to prove that there has been "unfavourable treatment" and the second relates to causation. To satisfy the second limb the complainant must prove that the unfavourable treatment was "because" the person has one or more of the protected attributes. Both limbs can be equally contentious and the second can be difficult to establish. Claimants may be able to establish that they have been treated unfavourably, but they may be unable to show that it was because of a protected attribute.

1. The first limb of section 8(2) of the Discrimination Act requires the applicant to establish that they have been treated unfavourably. For the reasons given above and my findings that the rebuttable presumption did not arise, because the applicant did not establish that her treatment was unfavourable, I further find for the purposes of section 8(2) of the Discrimination Act the respondent has not treated the applicant unfavourably. If I am in error on that finding, or if I had found that Dao had been treated unfavourably, then she would still have to show on the balance of probabilities that it was because of a protected attribute.
2. In relation to the first limb, determining whether Dao was treated unfavourably is a question of fact for the Tribunal to determine, and it is an objective test rather than a comparative test.[84]
3. In Applicant 202024 v The Australian Capital Territory (Represented by Access Canberra) (Applicant 202024), the tribunal after considering earlier formulations of "unfair treatment" said:

...unfavourable treatment is treatment that is adverse to the applicant or causes loss, damage or injury. This includes mental injury, embarrassment, and distress. It is broad enough to cover any disadvantage, so long as it is real and not illusory.[85]

Was the treatment because of a protected attribute?

1. I further find that Dao has not proved that her treatment was because of a protected attribute. Dao argued that her treatment was because of her protected attributes of a PhD from ANU, her race, sex and age. The respondent argued that she had failed because she did not meet the necessary academic standards of passing the assessments and the units.
2. In Applicant 202024, the tribunal said_:_

To establish causation in direct discrimination, the applicant must establish the real reason or true basis for the identified unfavourable treatment was [the protected attributes], and this must be done via objective evidence. He must do this on the balance of probabilities.[86]

1. Dao must show that the respondent has treated or proposes to treat her unfavourably because of one or more of her protected attributes. As in Pojohishgar, Dao spent considerable time in setting out how she had been treated rather than seeking to establish why she had been treated that way. In the absence of such evidence, Dao is unable to establish that she has been treated unfavourably because of her protected attributes.
2. An issue for the applicant is her history of complaints and reviews internally with the respondent and in the presentation of her claim in the tribunal. For example, in her evidence, she emphasised that she commenced receiving fail grades from the end of semester one in 2022 following her post on a student discussion board. In her Questionnaire response, she stated that the motivation for the giving of a fail was "academic misconduct" by both Hanley and Edmondson. She went on to refer to her having a PhD whereas Hanley and Edmonson did not and that she was "non white, female and old".
3. As discussed previously, the applicant now withdraws the allegation of misconduct. But even if academic misconduct is replaced by academic judgement, in my view it does not assist her claim. Dao has made assertions concerning her race, sex and age but they are nothing more than that. She offered no evidence in support and her assertions were contrary to the evidence of Hanley and Edmondson. I am persuaded by the evidence led by the respondent about the deidentification of students during marking and moderation. I also accept that there were other students in the course with a PhD and also older students from a variety of backgrounds including international students, and that many if not most of the students were female. The respondent made extensive submissions on this point and particularly whether having a PhD does not of itself fall within the meaning of section 7(1)(b) of the Discrimination Act. I accept those submissions.
4. In cross examination, the applicant could not obtain any concession from either Hanley or Edmondson that her treatment was because of a protected attribute and indeed such an assertion was explicitly denied.
5. I therefore find that Dao was not treated unfavourably and any treatment she received was not because of a protected attribute.
6. It therefore follows that Dao's claim must be dismissed.

Solicitors for the Respondent: Danny Kynaston, King and Wood Mallesons

[1] Exhibit 1 Agreed Bundle of Documents, attachment T

[2] Exhibit 1 Agreed Bundle of Documents, Items 1 and 2

[3] Exhibit 1 Agreed Bundle of Documents, Items 1 and 2

[4] Exhibit 1 Agreed Bundle of Documents, attachment 1 "Claim and Response"

[5] [2022] ACAT 53

[6] Transcript 22 May 2025 at pages 101-104, and at page 108

[7] Transcript 22 May 2025 at pages 106-108

[8] Transcript 23 May 2025 at pages 113-115

[9] See Gindy v Chief Minister of the ACT Government and Others {2007} ACTDT 2

[10] [2019] ACAT 84

[11] [2019] ACAT 84 at [50]

[12] [2021] ACAT 92

[13] [2021] ACAT 92

[14] Transcript 23 May 2025 at page 115

[15] Exhibit 1 Agreed Bundle of Documents, Item 3, Applicant's Statement dated 17 March 2025 at [26]-[27]

[16] Transcript 22 May 2025 at pages 30-31

[18] Transcript 22 May 2025 at pages 36-46

[22] Transcript 22 May 2025 at pages 52-53

[24] Transcript 22 May 2025 at pages 58-59

[25] Transcript 22 May 2025 at pages 60-64

[26] Transcript 22 May 2025 at pages 66-69

[29] Transcript 22 May 2025 at pages 70-71

[30] Transcript 22 May 2025 at pages 71-73

[32] Transcript 22 May 2025 at pages 77-81

[33] Transcript 22 May 2025 at page s 81-83

[34] Transcript 22 May 2025 at pages 84-85

[37] Transcript 22 May 2025 at pages 89-93

[38] Transcript 22 May 2025 at pages 96-101

[39] Exhibit 1 Agreed Bundle of Documents, attachment 3 at [1]-[4]

[40] Exhibit 1 Agreed Bundle of Documents, attachment 3 at [6]-[9]

[41] Exhibit 1 Agreed Bundle, at page 26 Statement of Leah Hanley dated 5 May 2025 at [1]-[11]

[42] Exhibit 1 Agreed Bundle, at page 26 Statement of Leah Hanley dated 5 May 2025 at [40]-[45]

[43] Exhibit 1 Agreed Bundle, at page26 Statement of Leah Hanley dated 5 May 2025 at [61]-[68]

[44] Transcript 23 May 2025 at pages 119-121

[45] Transcript 23 May 2025 at pages 12125

[47] Transcript 23 May 2025 at page 129

[48] Transcript 23 May 2025 at page 132

[49] Exhibit 1 Agreed Bundle, at page 138 Statement of Jolin Edmondson dated 4 May 2025 at [1]-[5]

[50] Exhibit 1 Agreed Bundle, at page 138 Statement of Jolin Edmondson dated 4 May 2025 at [6]-[15]

[51] Exhibit 1 Agreed Bundle, at page 138 Statement of Jolin Edmondson dated 4 May 2025 at [21]-[28]

[52] Exhibit 1 Agreed Bundle, at page 138 Statement of Jolin Edmondson dated 4 May 2025 at [ 29]

[53] Exhibit 1 Agreed Bundle, at page 138 Statement of Jolin Edmondson dated 4 May 2025 at [30]-[41]

[54] Exhibit 1 Agreed Bundle, at page 138 Statement of Jolin Edmondson dated 4 May 2025 at [45]-[46]

[55] Exhibit 1 Agreed Bundle, at page 138 Statement of Jolin Edmondson dated 4 May 2025 at [47]-[49]

[56] Exhibit 1 Agreed Bundle, at page 138 Statement of Jolin Edmondson dated 4 May 2025 at [51]-[53]

[57] Transcript 23 May 2025 at pages 138-144

[58] Transcript 23 May 2025 at page 147

[59] Exhibit 1 Agreed Bundle of Documents, attachment 7

[60] Respondent's written submissions dated 5 May 2025 at {1]-[4]

[61] Respondent's written submissions dated 5 May 2025 at [20-[23]

[62] [2020] ACAT 50

[63]Respondent's submissions dated 5 May 2025 at [24]-[29 }; referring to Pojohishgar at [2022] ACAT 53 at [44]

[64] Respondent's written submissions dated 5 May 2025 at [30]-[32]

[65]Respondent's written submissions dated 5 May 2025 at [30]

[66] Respondent's written submissions dated 5 May 2025 at [33]-[37]

[67] Respondent's written submissions dated 5 May 2025 at [38]

[68] Respondent's written submissions dated 5 May 2025 at [39]

[69] Respondent's written submissions dated 5 May 2025 at [40]-[41]

[70] Respondent's written submissions dated 5 May 2025 at[42]-[50]

[71] Respondent's written submissions dated 5 May 2025 at [52]-[60]

[72] Respondent's written submissions dated 5 May 2025 at [61]

[73] Applicant's written submissions in reply dated 12 May 2025 at [5]

[74] Transcript 23 May 2025 at page 151-152

[75] Transcript 23 May 2025 at page 152

[76] Transcript 23 May 2025 at page 152

[77] [2021] ACAT 9

[78] Transcript 23 May 2025 at pages156-157

[79] Transcript 23 May 2025 at page157-158

[80] Transcript 23 May 2025 at pages158-162

[82] Mr M v B [2017] ACAT 14, at [44]

[83] Exhibit 1 Agreed Bundle of Documents, attachments 5 and 4

[84] Kidman v Casino Canberra [2020] ACAT 50 at [22]

[85] [2021] ACAT 14 at [112]