Udeh v University of Newcastle

Statutory framework and principles governing the grant of leave

1. 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.
2. Where the President decides to accept a complaint under s 89B, he or she must investigate that complaint: s 90(1) of the Act. If, at any time in the course of that investigation, the President is satisfied that the complaint is lacking in substance and/or that no part of the conduct complained of could amount to a contravention of a provision of the Act, he or she may decline the complaint, in whole or in part: ss 92(1)(a)(i) and 92(1)(a)(ii). 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 & Anor (1981) 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].
3. Where the President has declined a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so: s 93A of the Act.
4. 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).
5. 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]; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25]. 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 & Anor v Ekermawi [2009] NSWCA 388 at [57]; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 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 v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [36], [37]; Jones & Anor v Ekermawi [2009] NSWCA 388 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 & Anor v Ekermawi [2009] NSWCA 388 at [60].

Background to the complaint

1. Before migrating to Australia in 2013 Dr Udeh was a medical practitioner in Nigeria.
2. In April 2014, Dr Udeh enrolled as a candidate in the PhD program in the University's School of Biomedical Science, under the supervision of Drs Nikki Verrills and Matt Dun. Dr Verrills acted as Dr Udeh's principal supervisor, Dr Dun as the co-supervisor.
3. Made under the University of Newcastle Act 1989 (NSW), the Rules Governing Research Higher Degrees, 1 January 2014 (the Rules) set out the requirements a candidate must satisfy to be awarded a higher degree by the University. The Rules provide that to progress from "provisional" to "confirmed" status, within 12 months of commencement of candidature the student must undertake a "confirmation process". That process requires the student to, among other things, prepare a document containing a critical review of recent work in the student's field of study together with an updated research proposal. In addition, the student is required to give a "verbal defence" of their research proposal before a Confirmation Committee: r 36.2 of the Rules. The Confirmation Committee is a panel convened by the School in which the student is carrying out the program of advanced study and research, for the purpose of confirmation of candidature: r 4 of the Rules. Following the completion of the confirmation process, the Confirmation Committee may: confirm the candidate; require the candidate to revise their work and undertake a second attempt at confirmation, or recommend the termination of the candidature to the Research Training Sub-Committee: r 36.3. On the recommendation of the Research Training Sub-Committee, the Dean of Graduate Studies may terminate a student's candidature on the ground that they failed to pass confirmation: r 49.3(vi).
4. In addition, the Rules set out the appeal process available to students aggrieved by a decision of the University relating to the conferral of a higher degree.
5. In an undated document headed "Supervisor Recommendation - Raphael Udeh PhD Confirmation", which was apparently submitted to the Confirmation Committee in March 2015, Drs Verills and Dun recommended that Dr Udeh not continue with his PhD candidature. They wrote:

• Dr Udeh was a "hard worker and is very committed to his project" but lacks the "background knowledge, basic scientific understanding, or necessary skills that are required for a PhD in Biomedical Sciences.
• Dr Udeh required training in the most basic laboratory techniques and makes mistakes in all experiments he conducts: "It is like having a below average first year student in the lab".
• They tried many times to help Dr Udeh to improve and provided extensive one-on-one laboratory training.
• On at least three occasions Dr Udeh made "major mistakes" in the laboratory that cost significant time and money.
• They had encouraged Dr Udeh to undertake additional training in various areas, including simple computer skills and statistics.
• While his final confirmation document is "certainly an improvement" on the document submitted by Dr Udeh in 2014, it is "still of very poor quality especially the preliminary results section".
• They had given Dr Udeh multiple chances to continue but "unfortunately things have not improved enough to recommend he pass".

1. Following a meeting in March 2015, the Confirmation Committee recommended Dr Udeh transfer to a Masters program.
2. In a letter dated 15 April 2015, Acting Dean (Graduate Studies) Professor Deborah Hodgson informed Dr Udeh that the Confirmation Committee had recommended the termination of his PhD on the ground that he had failed to meet the requirement to progress from provisional to confirmed status within 12 months of commencement of candidature. Professor Hodgson wrote that before proceeding to terminate his candidature, the Confirmation Committee was prepared to offer Dr Udeh the opportunity to transfer to the Masters program. She wrote that if by 29 April 2015 he did not confirm his intention to transfer to the Masters Program he would be required to show cause to the Research Training Sub-Committee why his candidature should be permitted to continue. She invited Dr Udeh to submit a written case to the Research Training Sub-Committee if he wished to address the findings made by the Confirmation Committee. In addition, Professor Hodgson invited Dr Udeh to speak to those issues at the meeting of the Research Training Sub-Committee on 1 June 2015.
3. On 26 April 2015, Dr Udeh informed Professor Hodgson that he had decided to accept the recommendation to transfer to the Master of Philosophy program. He wrote he was currently working on a revised research plan that would enable him to submit his thesis by April 2016.
4. In a pro forma Evaluation Form completed in November 2015, the members of the Confirmation Committee wrote that they were not prepared to confirm Dr Udeh's candidature in the Masters Program and recommended to the Dean of Graduate Studies that he be required to show cause to the Research Training Sub-committee as to why he should be permitted to continue his candidature. The Committee gave these reasons for that decision: Comments: Overall, the committee found the quality of the candidate's work was below the standard required for a MSc. Examination of the literature review indicated that it was still incomplete. There was no apparent improvement in the student's technical ability to prepare the document, which was poor at the first confirmation attempt. During question time, it was apparent to the committee that Raphael's understanding of the cell biology associated with his project was still very poor. Raphael had difficulty communicating the strengths and weaknesses of his experimental approach or the possible alternative assays that could be used to achieve his aims. Thus it was apparent that Raphael continued to have a weak grasp of the project as a whole. Raphael has obtained a small amount of data and made some progress on his project since the first confirmation attempt. However, the committee felt that the progress was insufficient for a MSc at 18 months into a 2 year project. The data is still very preliminary and so far do not provide a definitive test for any of the project hypotheses. His progress to date constitutes less than 50% of the work that the committee feels will be required for a MSc thesis. Consequently, we believe that it is unlikely that Raphael will be able to complete a MSc in time to meet the RTS deadline nor is it likely that he will complete without inappropriate intervention from his supervisors.

Dr Udeh appeals to the Deputy Vice-Chancellor

1. In January 2016, Dr Udeh lodged a notice of appeal with the Deputy Vice-Chancellor against the decision to terminate his candidature in the Masters program (the termination decision), relying on the following grounds of appeal: 1. "Material error in applying the criteria for unsatisfactory performance." Dr Udeh claimed that the Confirmation Committee did not have the benefit of his most recent literature review manuscript because Dr Dun had delayed its completion. 2. Bias and prejudice. He asserted that Dr Dun's "fundamental prejudice" had affected his progress. He asserted that despite these "adverse circumstances" his progress had improved since his first confirmation attempt in August 2015.
2. In a letter dated 23 February 2016, Professor Ken Hall, Deputy Vice Chancellor, notified Dr Udeh of his decision to dismiss his appeal. Professor Hall pointed out that under the Rules an appeal against a termination decision can only be brought on "procedural grounds" and the grounds of appeal on which he relied did not raise any procedural issues. He wrote that he was satisfied that the University had complied with "relevant policies and procedures" and this "brings your matter to a close within the University". He advised Dr Udeh that he had a right to appeal to the NSW Ombudsman. In addition, he informed Dr Udeh of the University's complaints management process which deals with "allegations of the kind raised in your appeal letter".

Dr Udeh lodges a complaint with the NSW Ombudsman

1. In March 2016, Dr Udeh lodged a complaint with the NSW Ombudsman. In the complaint, Dr Udeh repeated the allegations he made about Dr Dun in his submission to the Research Training Sub-committee dated 2 December 2015 and his notice of appeal lodged with the University on 20 January 2016. In addition, he asserted that the Confirmation Committee had not acted fairly and impartially as one of its members had a "direct interest" having been one of Dr Dun's PhD supervisors.
2. In addition, he wrote that the Committee had demonstrated bias in the assessment of his work, especially his literature review. He asserted he had evidence that his literature review was "good and publishable".
3. In a letter dated 21 July 2016, a delegate of the Ombudsman informed Dr Udeh that the Ombudsman's role was not to review the merits of the University's decision but rather to determine whether there was "any compelling evidence of improper administrative conduct". The delegate wrote that there was insufficient evidence of "wrong conduct" to justify making the complaint the subject of further investigation by the Ombudsman.
4. Dr Udeh requested the Ombudsman to review that decision. On review, the Deputy Ombudsman confirmed the original decision, writing that no evidence of improper conduct by the University had been found.

Dr Udeh applies for an internal review of the termination decision

1. In a complaint lodged with the University's Complaints Management Office (CMO) on 7 April 2016, Dr Udeh repeated many of the allegations he had previously made about Dr Dun and the Confirmation Committee. In addition he alleged that: 1. At the commencement of his candidature, Dr Dun greeted him with a cold reception and said that he had "finished the whole work that I [Dr Udeh] had only come to carry the glory". 2. Dr Dun's father-in-law made a "shocking statement" at a Dun family dinner, and said to him "Ralph, have you realised you are going to have a very difficult man as supervisor".
2. In a letter dated 19 May 2016, the Associate Director of the University's Assurance Services, wrote that Dr Udeh's complaint had been assessed in accordance with the University's Complaints Resolution Procedures. The Associate Director informed Dr Udeh of the decision to dismiss the Complaint on the ground that there was "insufficient evidence" that the University had not complied with relevant rules and guidelines or that the decision makers responsible for the decision to terminate his candidature had denied him procedural fairness.

Dr Udeh requests the Vice Chancellor to review the decision made by the CMO to dismiss his complaint

1. Dr Udeh requested a review of the decision made by the CMO. The University's Complaint Resolution Procedure states that if a complainant believes that the processes used to resolve a formal complaint are defective, they may request the Vice Chancellor for a "review of the procedures".
2. In a letter dated 6 July 2016, the University's Vice-Chancellor and President, Caroline McMillen, wrote that having considered the available evidence she could not find evidence of "procedural unfairness, bias, prejudice or defective process in the investigation of his complaint by the CMO".

Dr Udeh lodges complaint with the President of the Anti-Discrimination Board

1. In September 2016, Dr Udeh lodged a complaint with the President of the Anti-Discrimination Board alleging that during the period of his enrolment at the University, April 2014 to November 2015, he had been discriminated against due to his "race and skin" by Dr Dun which resulted in "poor supervisory support and guidance" and ultimately, the "unfair termination of my candidature". He wrote, "it astounds me to this day and age; racial hatred is still prevalent and ripe in the Australian educational system, preventing students from achieving their potential".
2. In his letter of complaint, Dr Udeh repeated many of the allegations and criticisms he had previously levelled against Dr Dun and members of the Confirmation Committee. Significantly, he added to those claims, the allegation that Dr Dun said to him "the white person is more superior to the black person" (the Dun statement). He claimed that Dr Dun would often repeat that statement "making me feel like less of a person". He wrote that he suffered stress and anxiety as a result of the racial hatred and bias he had endured during his period at the University.
3. In a letter addressed to the President, in answer to the Complaint, the University pointed out that Dr Udeh's letter of complaint to the President was the first time he had made an allegation of race discrimination. In a letter in reply dated 17 March 2017, Dr Udeh claimed that: 1. He raised the issue of race discrimination during his oral presentation to the Confirmation Committee and was "quickly told that there is special place for that complaint and it was not to them". 2. He did not mention the "discriminatory events" in the progress reports [regular reports required to be completed by higher degree students] because he was afraid the hostility would "get out of control".

Statutory framework: discrimination on race

1. Section 17(2) of the Act makes it unlawful for an educational authority to discriminate against a student on, the grounds of race: (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.
2. Section 7 of the Act sets out what constitutes discrimination on the grounds of race: (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.
3. Race is defined to include colour, nationality, descent and ethnic, ethno-religious or national origin: s 4 of the Act.
4. 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.

What Dr Udeh must establish if leave were granted for the Complaint to proceed

1. We understand Dr Udeh to contend that the University subjected him to a detriment by: 1. Terminating his Master of Philosophy candidature, and 2. Through Dr Dun, providing him with inadequate supervision and guidance to complete his PhD and later, his Masters.
2. He contends that the offending actions are interrelated and were it not for the inadequate supervision and guidance provided by Dr Dun, he would not have found himself in a position where he was unable to complete the requirements of a PhD and /or a Masters program.
3. In Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 (Aldridge), an Appeal Panel of one of NCAT's predecessors, the NSW Administrative Decision Tribunal, formulated a question which it said should be addressed in all cases of so-called direct discrimination. Applied to the facts of this case, the questions posed in respect of the termination decision and the alleged inadequate supervision and assistance guidance provided throughout his candidature, are: 1. Whether the University and/ or Mr Dun treated Mr Udeh less favourably in the same circumstances or circumstances that were not materially different than it/he treated, or would have treated a student not of Dr Udeh's race (less favourable treatment). 2. If so, whether one of the reasons for any less favourable treatment was Dr Udeh's race, a characteristic that generally appertains to, or is generally imputed to persons of his race (causation).
4. Dr Udeh has not nominated an actual comparator and nor is one apparent on the available material. Accordingly, to determine whether less favourable treatment is established, it is necessary to compare the treatment afforded Dr Udeh with the treatment that probably would be afforded to a hypothetical student in the same, or not materially different circumstances, to him. The approach advocated by the Appeal Panel in Aldridge of separately and sequentially considering the issues of less favourable treatment and causation presents difficulties where, as in this case, an actual comparator is not identified and the elements of less favourable treatment and causation are necessarily conflated. See for example, Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [63] - [65], Martin v McKensey (No. 2) [2003] NSWADT 126 at [46]; McEvoy v Acorn Stairlifts Pty Ltd [2017] NSWCATAD 273 at [68]. Therefore, where reliance is placed upon a hypothetical comparator, it is first necessary to ask: what was the ground or grounds of the impugned conduct? It is only when the answer to that question is known that it is possible to evaluate whether a hypothetical person without the complainant's protected attribute would have been treated less favourably.

Should leave be granted for the complaint to proceed?

1. The University asserts that race played no part in the decision to terminate Dr Udeh's candidature. In addition, it rejects the allegation that Dr Dun (i) failed to provide Dr Udeh adequate supervision and guidance, (ii) did so because of Dr Udeh's race, and (iii) repeatedly made the Dun statement.
2. This is not a case where the conduct complained of, if found proven, could not amount to a contravention of the Act. Rather, it is one where, if found proven, the conduct complained of might amount to a contravention of the Act. Therefore, a relevant factor in the evaluation of the question of whether it is fair and just to allow the complaint to proceed is the likelihood of Dr Udeh being able to establish the alleged facts central to his complaint, namely: 1. Whether Dr Dun failed to provide Dr Udeh adequate supervision and guidance throughout the period of his candidature. 2. If so, whether one of the reasons Dr Dun failed to provide adequate supervision and guidance was Dr Udeh's race. 3. If so, whether the level of supervision and support provided by Dr Dun to Dr Udeh, throughout his PhD/Masters candidature was "less favourable" than that he would probably provide a hypothetical student, not of Dr Udeh's race. 4. Whether Dr Dun made and repeated the alleged Dun statement.
3. The University asserts that each of the above factual assertions is false. With respect to the alleged detriment of providing inadequate supervision, it points to the reports of Dr Udeh's supervisors detailing the assistance provided to Dr Udeh throughout his candidature: see for example, the document, "Timeline of events" prepared by Dr Verills in late 2014 and the comments made by Drs Verills and Dun in progress reports prepared throughout 2014 and 2015. With respect to the Dun statement, the University argues, in effect, that it is a recent invention designed to bolster Dr Udeh's complaint of race discrimination.
4. While the complaint to the President is the first occasion that Dr Udeh mentioned the alleged Dun statement, it is not the first occasion he has alleged that Dr Dun was hostile towards him and provided inadequate support and guidance. Dr Udeh has repeatedly made those claims: see for example, the notice of appeal lodged by Dr Udeh with the University in January 2016. That history cuts both ways for Dr Udeh. On the one hand, while it does not establish their truth or otherwise, it is nonetheless corroborative of those claims. On the other hand, the notable omission of the alleged statement from the documentation which Dr Udeh provided in support of his applications for review of the termination decision raises doubts about the veracity of that allegation. This is especially so as the evidence reveals that prior to making the complaint to the President, Dr Udeh demonstrated no reluctance to criticise Dr Dun, and often did so in colourful terms.
5. Even if it were established that Dr Dun made the alleged statement, that of itself that would not establish that Dr Udeh had been subjected to a detriment, namely the provision of inadequate support and guidance by his supervisors. Nor would it establish that one of the reasons for any alleged inadequate supervision and guidance was Dr Udeh's race. Nonetheless, it proven, it would be powerful evidence in determining the issue of causation which would require asking whether, having regard to the totality of the evidence, the inference could be drawn that Dr Udeh's race was one of the reasons for the alleged less favourable treatment. (See Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70], referring to Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262.) As repeatedly observed, of its very nature race discrimination is "[O]rdinarily something which is manifested indirectly and proved (where it exists) by evidence normally called circumstantial": Alone v State Housing Commission ("Homewest") (1992) EOC 92-392 at p. 78,789.
6. While the considerations are finely balanced, I have decided to exercise the discretion to permit the Complaint to proceed. In reaching that decision I have taken into account the powerful argument advanced for the University that on its face it appears implausible that Dr Udeh would have omitted to mention the alleged Dun statement to the various appeal and review bodies, to which he has taken his complaint about the termination decision. I have also taken into account that none of those bodies found any evidence of impropriety. Nonetheless, I have decided that in the circumstances of this particular case, the interests of justice require that Dr Udeh be given the opportunity of having the facts in issue determined by the Tribunal.
7. Relevant to that decision is the fact that the question of whether the alleged Dun statement was made has neither been tested nor been the subject of interview or external review.
8. Further, Dr Udeh has provided an explanation for not mentioning that allegation prior to lodging the complaint with the President. In addition, while Dr Dun apparently instructed the University that he did not make the alleged statement, the available material does not contain a direct response to the allegation prepared by Dr Dun.
9. Finally, in the main, the scope of the reviews and appeals conducted by internal and external decision-makers was restricted to the question of whether there was any evidence of procedural irregularity in the decision-making processes surrounding the termination decision, not the merits of that decision, or whether, as alleged, Dr Udeh was provided with inadequate supervision and guidance.
10. For these reasons I have decided it is fair and just to permit the complaint to proceed.

Order 1. Leave is granted under s 96(1) of the Anti-Discrimination Act 1977 (NSW), for the complaint to proceed.

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: 23 March 2018