Yu v University of Newcastle - [2000] NSWCA 29 - NSWCA 2011 case summary — Zoe

NSWNSWCA

Yu v University of Newcastle

[2000] NSWCA 29

Court of Appeal (NSW)|2011-09-09

At a glance

AI case summary

Result

procedural. The Tribunal declined to dismiss the complaint pursuant to s 102 of the Anti-Discrimination Act 1977; the respondent's application is dismissed.

Key principles

On an application under s 102 of the Anti-Discrimination Act 1977 the Tribunal must take the applicant's case at its highest and determine whether the complaint is frivolous,...
The utterance of the words "speak English" to a student who has demonstrated English-language proficiency through prior postgraduate degrees conducted in English may constitute...
Where an applicant relies on inferences to establish causation between race and the alleged detriment, and where the evidence is in conflict, it is not appropriate to resolve the...

Issues before the court

Whether the complaint of racial discrimination in education should be summarily dismissed under s 102 as frivolous, vexatious, misconceived, lacking...

Cited legislation

No linked legislation citations have been extracted yet.

Plain English Summary

A postgraduate pharmacy student of Chinese background claimed the University of Newcastle racially discriminated against him when his lecturer delayed exam results for seven months, told him to "speak English" during a results discussion, marked him more harshly than another examiner, and refused to accommodate medical certificates for a supplementary exam. The University said the delay was an administrative error, the results reflected academic performance, and there was no racial element. It asked the Tribunal to throw the case out early as having no legal basis. The Tribunal refused, saying that if the student's account is accepted at its highest the lecturer's words plus the delay could show the student was treated worse because of his race. Whether that inference should actually be drawn must wait for a full hearing with live evidence.

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Deep Dive

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What happened

Dr Fu Yu, a student of Chinese racial background, was enrolled in pharmacy courses at the University of Newcastle. In 2008 he sat examinations for PHAR6008 and PHAR6009. The results were not released for seven months, from 21 June 2008 until 21 January 2009, despite repeated requests by the applicant to the course coordinator and examiner, Dr Rasiah. During that period the applicant continued other studies on campus. After the results were finally released he enrolled in further subjects (PHAR6221, PHAR6222 and PHAR6223) in 2009. He received fail grades in PHAR6222 and PHAR6223 following oral examinations conducted by Dr Rasiah in which he was allegedly given less than 30 per cent of the questions.

The applicant appealed and sought independent remarking. On 1 September 2009 he met Dr Rasiah to discuss the results. According to the applicant, Dr Rasiah refused to go through the examination paper, repeatedly asked about special circumstances, and demanded that the applicant “speak English”. The applicant relied on his prior academic record—successful completion of a Master of Philosophy at Griffith University and a PhD at the University of Otago, both conducted in English—plus his work as a healthcare interpreter and hospital scientist to demonstrate English proficiency. He asserted that the demand to “speak English” revealed that Dr Rasiah was treating him less favourably because of his race.

Further disputes arose. The applicant became ill with whooping cough and supplied medical certificates for a supplementary dispensing examination in PHAR6221. The University initially rescheduled the examination but ultimately required him to sit it on 25 September 2009. He failed that component, the fail grade was posted on the University’s Blackboard system (visible to others), and he was charged full fees. The University maintained that the seven-month delay was an administrative oversight, that external remarking by the University of Canberra and the University of Sydney confirmed the fail grades, and that the applicant was one of eight students required to sit the supplementary dispensing examination. It denied any racial motivation and pointed to the applicant’s mixed results in 13 earlier courses before Dr Rasiah’s involvement.

The applicant lodged a complaint with the Anti-Discrimination Board. The President referred it to the Administrative Decisions Tribunal. The University applied under s 102 of the Anti-Discrimination Act 1977 for summary dismissal on the grounds that the complaint was frivolous, vexatious, misconceived or lacking in substance and that the conduct alleged, if proven, would not disclose a contravention of the Act. The Tribunal heard the dismissal application on 9 September 2011 on the basis of extensive written material from both sides and oral evidence from the applicant. It reserved its decision and delivered reasons on 24 November 2011.

Why the court decided this way

Judicial Member Huntsman applied the established approach that on a s 102 application the Tribunal must take the applicant’s case at its highest. The statutory test required the Tribunal to ask whether the complaint was frivolous, vexatious, misconceived or lacking in substance, or whether the conduct alleged, if proven, would not disclose a contravention of ss 7 and 17 ([16]-[17]).

Section 17(2) makes it unlawful for an educational authority to discriminate against a student on the ground of race by denying or limiting access to a benefit or by subjecting the student to any other detriment. Section 7(1)(a) defines direct discrimination as treating the aggrieved person less favourably than a person of a different race would be treated in the same or not materially different circumstances. Crucially, s 7(2) provides that something is done on the ground of a person’s race if it is done on the ground of the person’s race or a characteristic that appertains generally or is generally imputed to persons of that race ([12]).

The Tribunal accepted that the applicant’s evidence, taken at its highest, showed a significant delay in the release of examination results—a clear detriment under s 17(2)(b)—and that the applicant had made repeated requests to Dr Rasiah. The respondent conceded the delay but attributed it to administrative oversight. The Tribunal held that the cause of the delay and whether it amounted to differential treatment could not be resolved on a summary application where the evidence conflicted ([24]).

The pivotal piece of evidence was Dr Rasiah’s alleged demand to “speak English” made during the September 2009 discussion of results. The applicant’s prior academic success in English-language postgraduate degrees and his professional interpreting work were said to demonstrate that he possessed English skills. The Tribunal reasoned that, in the context of the applicant’s racial background, the remark could be understood as imputing to him a characteristic generally associated with his race—namely, an inability to speak English adequately. This engaged the extended definition in s 7(2). The remark could therefore supply the causal link between the applicant’s race and the less favourable treatment ([23]-[24]).

The Tribunal expressly acknowledged the applicant’s case relied on inferences rather than direct evidence of racial animus. It cited at length from Dutt v Central Coast Area Health Service [2002] NSWADT 133 and Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271. Those authorities confirm that racial discrimination is often proved circumstantially, that an inference must be logical and more probable than innocent explanations, but that the weighing of competing inferences cannot occur on a summary dismissal application without hearing witnesses ([25]-[27]). Because the evidence before the Tribunal was largely written and conflicting, and because the “speak English” remark could colour the earlier delay, the Tribunal could not conclude that the only available inference was an innocent one. Accordingly the complaint could not be characterised as frivolous, vexatious, misconceived or lacking in substance, nor could it be said that no contravention of the Act was disclosed ([28]-[29]).

The Tribunal also noted that the various aspects of the claim (delay, marking, supplementary examination, publication of results) were entwined with Dr Rasiah’s involvement and could not be severed for separate summary dismissal ([28]).

Before and after state of the law

Prior to this decision the law was settled that racial discrimination complaints in education are governed by ss 7 and 17 of the Anti-Discrimination Act 1977. The extended definition in s 7(2) had long recognised that discrimination can occur on the basis of a characteristic generally imputed to a racial group. The test for summary dismissal under s 102 mirrored the President’s powers under s 92 and required the Tribunal to take the complaint at its highest. Dutt had emphasised the practical difficulty of proving racial motivation by direct evidence and the need for the Tribunal ultimately to be satisfied that race was a ground, not merely that the applicant believed it was. Chi had enumerated the principles governing the drawing of inferences: the inference must be reasonable, based on primary facts, more probable than innocent explanations, and not mere supposition.

This decision did not change those principles. It applied them to a factual scenario involving an academic’s use of the phrase “speak English” directed at a student who had demonstrable English proficiency. The decision illustrates that such a remark, when coupled with evidence of detriment and when the student’s case is taken at its highest, is capable of supporting an inference that race was a ground for the conduct. It reinforces that summary dismissal is not the occasion to weigh conflicting explanations or to decide whether an innocent inference is more probable. That task remains for the final hearing. The decision therefore stands as a clear application of the Dutt and Chi framework rather than a doctrinal departure. After the decision, practitioners understood that complaints resting on an academic’s language-related comments combined with academic detriment would survive interlocutory attack if the student could point to prior English-language academic success.

Key passages with plain-English translation

Paragraph [24] contains the ratio:

“Taking the applicant’s case at its highest, as is required in the current proceedings, given the applicant’s evidence about his English language skills and success in previous degree courses conducted in English, including at postgraduate level, and given his racial background, it may be, considering the provisions of section 7(2) of the Act, that the use of these words could be considered discrimination on the grounds of race, and could be evidence indicating that the speaker of the words may have acted towards the applicant in a racially discriminating way. There is evidence of a significant delay in providing a benefit to the applicant, being the important benefit of providing examination results to the applicant in order that he could progress in his degree… The tribunal finds that it is open to a tribunal to conclude that differential treatment of the applicant occurred in relation to the marking and notification of the examination results, and that such differential treatment may have been due to racial discrimination, given the words used by the academic who was responsible for marking the examination and providing the examination results.”

Plain-English translation: If we accept everything the student says as true for now, his strong English track record plus the fact he is from a non-Anglo background means the lecturer’s instruction to “speak English” could be seen as assuming he couldn’t speak English because of his race. That assumption, together with the long delay in giving him his results, could show he was treated worse because of his race. We therefore cannot throw the case out early.

At [25] the Tribunal quotes Dutt at [82]:

“When there is no evidence to support an inference that race was a ground, particularly when there is evidence giving rise to other, equally plausible inferences, an Applicant is left with nothing more than their belief that their race was a ground. In terms of legal proof, with which the Tribunal is necessarily concerned, such a belief is insufficient to establish unlawful discrimination.”

Plain-English translation: Simply believing you were discriminated against because of your race is not enough. There must be facts from which the Tribunal can logically infer that race was a reason. If there are equally plausible non-racial explanations, the inference will usually not be drawn at a final hearing. But deciding which explanation is more plausible requires a full hearing, not a summary dismissal.

Paragraph [27] summarises the limits of the summary jurisdiction:

“The Tribunal finds in these preliminary proceedings under section 102 of the Act, that the tribunal cannot make findings on the available evidence about inferences which should be drawn and that this is properly a matter for a tribunal to decide at a full hearing.”

Plain-English translation: At this early stage we cannot decide whose version is more believable or whether the racial inference should be preferred. That happens only after everyone gives oral evidence at the final hearing.

What fact patterns trigger this precedent

This decision is triggered by complaints in which:

a student of non-Anglo racial background enrolled in an educational course alleges detriment under s 17(2) (delayed results, harsher marking, refusal of special consideration, publication of adverse results);
the detriment is linked to an academic who has used language such as “speak English” or equivalent comments that could be interpreted as imputing deficient English skills;
the student can point to objective evidence of English proficiency (prior degrees conducted in English, professional interpreting roles, IELTS results);
the student relies on the extended definition in s 7(2) that discrimination occurs where conduct is based on a characteristic generally imputed to persons of the student’s race; and
the respondent offers innocent explanations (administrative error, academic performance) that conflict with the student’s account.

The precedent emphasises that such complaints cannot be dismissed summarily if, taken at their highest, the facts could support an inference that race was a ground. It is not necessary for the student to produce direct evidence of racial animus at the s 102 stage. The combination of a race-linked comment plus tangible academic detriment in circumstances where English proficiency is objectively established is sufficient to survive interlocutory attack.

How later courts have treated it

The judgment itself cites and applies the principles articulated in Dutt v Central Coast Area Health Service [2002] NSWADT 133 and Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271. It adopts Dutt’s recognition that racial discrimination is usually proved inferentially and that a bare belief by the applicant is insufficient. It repeats the six considerations for drawing inferences enumerated in Chi at [85], including that an inference cannot be drawn where more probable and innocent explanations are available. The Tribunal expressly declined to perform the weighing exercise required by those authorities, holding that such weighing could occur only at a final hearing ([27]). In that sense the decision faithfully follows the earlier Tribunal authorities and does not purport to depart from them. It illustrates the practical application of those principles to language-related comments in an educational setting and confirms that summary dismissal remains a high bar when the applicant’s case, taken at its highest, engages s 7(2).

Still-open questions

Several questions were left for the final hearing. First, whether the words “speak English” were in fact spoken and, if so, in what tone and context. Second, whether the seven-month delay was caused by racial discrimination or by administrative oversight; the Tribunal noted the conflict but could not resolve it. Third, whether the differential marking between Dr Rasiah and the other examiner, and the refusal to accommodate the medical certificates, were infected by the same racial ground. Fourth, the weight to be given to the external remarking by interstate universities that confirmed the fail grades. Fifth, the extent to which s 4A (acts done for multiple reasons) might apply if both academic performance and race were operative grounds. Sixth, whether the drawing of the racial inference is logical and more probable than the innocent explanations once all oral evidence is heard and cross-examination completed. The decision expressly reserves all these matters for the final hearing, emphasising that the preliminary view formed on a summary application does not bind the Tribunal that ultimately hears the evidence.

Judgment (3 paragraphs)

[1]

Background 1Dr Fu Yu, the applicant, made a complaint to the Anti-Discrimination Board that he was discriminated against for reason of his race, whilst enrolled as a student, by the University of Newcastle, the respondent. The complaint was referred by the President of the Anti-Discrimination Board to the tribunal. The respondent, the University of Newcastle, applied to the tribunal for orders that the complaint be dismissed, pursuant to section 102 of the Anti-Discrimination Act 1977. Directions were made for the filing of material by the parties and the application for dismissal was heard by the tribunal. On 9 September 2011 the tribunal reserved its decision and now provides reasons for decision and orders. 2The applicant's case is set out in written material filed with the tribunal and in detailed documents provided to the Anti-Discrimination Board (as attached to the summary of complaint provided by the President of the Anti-Discrimination Board). Considerable detail was provided in material filed by the applicant under cover letter received by the tribunal on 16 June 2011, including points of claim and attached documents (40 attachments); further material filed on 27 July 2011 (attaching statements by other students) and submissions in relation to the current application under s 102 of the Anti-Discrimination Act 1977 were received by fax on 31 August 2011. In particular, in these submissions the applicant relied on the fact that the respondent had filed material in relation to the application for summary dismissal, on 18 August 2011 rather than 17 August 2011, as required by the tribunal's directions of 3 August 2011. 3The respondent provided written submissions in support of the application for summary dismissal, dated 17 August 2011. The respondent also relied on the respondent's submission and points of defence filed on 15 July 2011. In summary the respondent asserts that the applicant has provided no evidence that he was discriminated against on the grounds of his race. 4The applicant's case is detailed below, however, in summary the applicant's case is that he was discriminated against by the University, when a lecturer in the employ of the University, Dr Rasiah, failed to provide examination results to the applicant over a seven-month period. The applicant states that this differential treatment of him by Dr Rasiah was because of his race. The applicant believes also that subsequent examination results were adverse to him, because of Dr Rasiah's discrimination on the grounds of the applicant's race. The respondent denies the applicant's claims and provides evidence of independent remarking of the applicant's exams. The applicant questions the remarking process and maintains it is tainted by Dr Rasiah's involvement in the oral component of the examinations. The applicant states his belief that the reason for the adverse treatment of him by the University was discrimination on grounds of his race. He relies on a statement made to him by Dr Rasiah to "speak English". In relation to this Dr Fu Yu notes that he has graduated with a Masters of Philosophy Studies at Griffith University, Australia, conducted in English; he obtained a PhD at the University of Otago, New Zealand, studied in English; he obtained his IELTS test results in IDP Education, Australia; and he works as a healthcare interpreter for Hunter New England Health, New South Wales Health, Australia; has work experience as a postdoctoral hospital scientist in a New South Wales hospital; and provides his results in other courses undertaken with the respondent where Dr Rasiah was not involved. The applicant states in his written material that he relies on his educational and work history as relevant matters.

[2]

The applicant's case 5The applicant's case is set out in written material. The applicant also provided oral evidence at the hearing of the s102 application. In written submissions the applicant set out his case under four main grounds. Firstly, he states that he suffered serious discrimination when Dr Rasiah did not release his examination results for 7 months, even though the applicant had followed up with Dr Rasiah many times after the examinations. Secondly, he says there was dishonest behaviour when Dr Rasiah claimed the exam papers for the subjects PHAR6008 and PHAR6009 were marked earlier than they actually were. Thirdly, the applicant claims a breach of ethics and human rights, the particulars of which involve the University forcing the applicant to attend an examination while certificates by a medical practitioner showed him to be sick and unfit, and awarding him a fail grade without considering the medical condition; and by the University not allowing the applicant to look at his examination papers and the allocation of marks, even when the examinations and marking were discovered to have academic and administrative issues. Fourthly, the applicant states he suffered breach of privacy when the University published the applicant's examination results on BLACKBOARD which meant that anyone enrolled in the course could see the results. 6The applicant states that his results from the supplementary examinations for the subjects PHAR 6008 and PHAR 6009 were not released by Dr Rasiah, senior lecturer, course coordinator and examiner, for 7 months from 21 June 2008 until 21 January 2009. During the seven-month period he contacted Dr Rasiah many times about the examination outcomes while he was completing a course in pharmacy management on campus in trimester two 2008; and he also contacted Dr Rasiah regarding the examination results on many occasions in trimester 3 2008. The applicant states that instead of responding to his requests for the examination results Dr Rasiah gave the applicant his personal mobile phone number and asked the applicant to contact him after hours. The applicant states that when he telephoned Dr Rasiah in January 2009 Dr Rasiah informed him that he had not finished marking the exams as yet. The applicant enrolled in three courses (PHAR6221, PHAR6222 and PHAR6223) in trimester 2, 2009, following pass grades awarded for PHAR6008 and PHAR6009 in trimester 1 2008. He was delayed in progressing his degree by the delay in examination results. The applicant asserts that on 13 August 2009 he was given less than 30% of the examination questions, during the oral examinations, for the courses PHAR6222 and PHAR6223, both of which were conducted by Dr Rasiah and this caused him to be given fail grades in these subjects. He appealed the results for courses PHAR6222 and PHAR6223 at the University administration office and requested an independent re-mark of his examinations. On 28 August 2009 he found that for the three subjects in which he was enrolled, he was awarded one incomplete for subjectPHAR6221 and two fails (PHAR6222 and PHAR6223). During a phone call with Ms Joyce Cooper, course coordinator of PHAR6221, he was informed that the incomplete component of the course was the Dispensing Practice Exam. He says he was told that he should seek feedback from Dr Rasiah and make an appointment. 7The applicant states that on 1 September 2009 he met with Dr Rasiah at the University of Newcastle. He states that Dr Rasiah said he was not going to go through the exam paper. He said Dr Rasiah repeatedly asked the applicant whether he had any special circumstances to be considered. He says that while they were discussing the examination results Dr Rasiah demanded the applicant "speak English". 8The applicant states that in relation to the written examination for the course PHAR6222 he was awarded 42 marks out of 72 marks in the section marked by another marker, but only five marks out of 28 marks in the section marked by Dr Rasiah. The applicant details the attempts he made to ensure there would be an in independent remarking. The applicant also gives details about accessing the university Blackboard site and disciplinary proceedings which ensued. 9The applicant describes becoming unwell with whooping cough and having a medical certificate when his supplementary exam for the dispensing practice exam for the course PHAR6221 was scheduled. He said that the university refused to reschedule the supplementary exam. 10On 23 September 2009 the applicant received correspondence from Ms Gould, Deputy Vice Chancellor, which stated that the remarking for the courses PHAR 6222 and PHAR6223 had been completed by Canberra University and the University of Sydney, and that he was enrolled in one course currently. On 24 September 2009 the applicant was certified not fit to work. On 25 September 2009 he attended the dispensing practice exam. On 28 September 2009 the applicant handed in the medical certificate which he says was required under University policy within three working days. On 6 October 2009 he received advice that he had failed the dispensing practice exam and as a result, the course PHAR6221. He was thereby unable to continue the subsequent courses in semester three 2009. He states this communication was posted on the University messenger site where it could be seen by anyone in the school. In October 2009 a discipline committee hearing was held in relation to the applicant's previous alleged misconduct of sending e-mails. On 8 October 2009 he received advice from student administration that he had been charged full fees for the three courses in which he had enrolled, which were to follow on from the courses PHAR6221,6222, 6223. Discussion of evidence and findings 11The applicant's case, in summary, is that an academic in the employ of the respondent, Dr Rasiah, discriminated against the applicant, causing detriment to the applicant in his studies and in progression of his degree, on the grounds of his race. 12The Anti-Discrimination Act 1977 (the Act) provides: 17 Education (1) It is unlawful for an educational authority to discriminate against a person on the ground of race: (a) by refusing or failing to accept the person's application for admission as a student, or (b) in the terms on which it is prepared to admit the person as a student. (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. (3) Nothing in this section applies to or in respect of a prescribed educational authority in relation to such circumstances, if any, as may be prescribed. 7 What constitutes discrimination on the ground of race (1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator: (a) 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) 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 such 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 . 4A Act done because of unlawful discrimination and for other reasons If: (a) an act is done for 2 or more reasons, and (b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason 13The evidence on which the applicant relies is, in summary, the detriment experienced in his studies, the fact that he has previously succeeded in studies at university level which he undertook in English, and his evidence that during a conversation with Dr Rasiah he was told by Dr Rasiah to "speak English". He provides statements from other students who state that they found Dr Rasiah difficult, or hard, or unfair, but none of these other students give evidence of racial discrimination by Dr Rasiah. 14The Tribunal specifically asked the applicant during the hearing why he believed that he had been mistreated on the ground of his race, and why he believed that what had happened to him whilst a student at the University of Newcastle was experienced because he had been discriminated against because of his race. The applicant responded with words to the effect of "What other reason could there be?" It was clear to the tribunal that the applicant also relies on the conversation with Dr Rasiah in September 2009 where Dr Rasiah is said to have said to the applicant "Speak English". 15The Anti-Discrimination Act 1977 provides: 102 Tribunal may dismiss complaint The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1) (a) (i) or (ii) or (b). 92 President may decline complaint during investigation (1) If at any stage of the President's investigation of a complaint: (a) the President is satisfied that: (i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or (ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or (iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or (iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or (v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or (vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or (vii) it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or (b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint, 16It is well-established that on an application for dismissal under section 102 of the Act the tribunal should consider the applicant's case at its highest. This involves the tribunal accepting the applicant's evidence taken at its highest and deciding, after so considering the applicant's evidence, whether the application should be dismissed under section 102 of the Act. In considering whether to dismiss the complaint the tribunal is to have regard to the grounds on which the President may decline a complaint under section 92(1)(a)(i) or (ii) or (b) of the Act. In the present matter the respondent relies on the grounds that the complaint is frivolous, vexatious and misconceived; and that the complaint is lacking in substance, and that the conduct alleged, if proven, would not disclose the contravention of a provision of the Act or the regulations. 17The respondent provided written submissions dated 17 August 2011 and relied on submissions and points of defence filed on 13 July 2011. The respondent refers to sections 7 and 17 of the Act and submits that the material filed by the applicant does not contain material which supports his claim of discrimination based on race. In the absence of such material, or evidence, supporting the claim, the application is without legal foundation and will, at a full hearing, be dismissed. The respondent submitted that it is the proper exercise of the discretion of the tribunal to step in and dismiss an application which was brought without any merit under the Act, prior to the respondent expending further significant time and money defending the claim. In the points of defence previously filed the respondent provided detail, asserting that in none of the material filed by the applicant had the applicant established that Dr Rasiah, or the University, discriminated against him on the grounds of his race, as required by sections 7 and 17 of the Act. The respondent stated in those submissions as follows: (a) there is no evidence that Prof Rasiah actions were discriminatory on the basis of race in respect of the delay of the release of the applicant's marks for courses PHAR6008 and PHAR6009 in 2008 (paragraph 1, Appendix 1); (b) the applicant's suspicion as to the process regarding the external marking of his examination results for courses PHAR6222 and PHAR6223 in 2A09 is unfounded and without merit. The respondent has provided the relevant documentation concerning this external and independent process as appendix 2 of this submissions Appendix 2. (c) the applicant was not discriminated against on the basis of his race in respect of the conduct of the dispensing exam for the course PHAR6221 in 2009 but rather he was one of a group of students who were allowed the opportunity to sit a supplementary exam (paragraph 3, Appendix 1; also part B, paragraph 5, Appendix 2).. (d) The respondent refers to and maintains its submissions as outlined at appendix 1 of this submission'Appendix 2 in answer to the applicant's complaint as a whole. 18In the material attached to the respondent's submissions, as appendixes, the respondent concedes that there was a delay in the remarking of re-examinations for PHAR6008 and PHAR6009 of some seven months, and states it was administrative oversight involved. The respondent concedes the delay is likely to have impacted upon the complainant's ability to progress his studies during that time. The respondent maintains there is no evidence of racial motivation for the delay. The respondent notes that the applicant has raised a number of issues about the external re-marking of the courses PHAR6222 and PHAR6223 in 2009. The respondent states that the respondent's evidence, in summary, discloses that the appeals committee was satisfied as to resolving the issue with external marking of both course assessments which was conducted externally. The remarking of oral exams (using the tape recording) and written examinations was conducted by interstate universities and the applicant's fail mark was maintained by the external examiners (the respondent states that the external mark was in fact lower than the original mark). The respondent maintains that no unfair treatment or discriminatory treatment is disclosed and the issue relates simply to the applicant's academic performance. 19In relation to the supplementary dispensing exam for the course PHAR6221 the respondent notes the applicant's claim to have been treated differentially by Dr Rasiah over this issue, and states this is incorrect. The respondent states the applicant was not the only student to resit the dispensing component but was one of eight students for whom it was deemed necessary to conduct a supplementary exam for the dispensing component of the course. The supplementary exam was scheduled for 17 September 2009. The respondent notes that the applicant first provided a medical certificate on 11 September 2009, dated 9 September 2009, that covered the period 9 September 2009 to 14 September 2009. It is stated that this did not cover him for the exam date of 17 September 2009 and he was asked to obtain another certificate. In any event he was given the benefit of the doubt and his exam was rescheduled for 25 September 2009. The exam on 25 September 2009 was supervised by staff other than Dr Rasiah who was also not involved in the marking. A new medical certificate was submitted by the applicant on 28 September 2009, three days after he sat the rescheduled exam, and the certificate was dated 24 September 2009. University policy provides that a student will be able to apply for consideration of special circumstances on only one occasion, unless there are exceptional circumstances. The respondent maintains that if the medical certificate had been provided earlier, perhaps the applicant may have been considered for exceptional circumstances. However, it remains the case that a further rescheduling, which would have been a third accommodation, may, or may not have been granted. The respondent also denies broadcasting to all students the fail result of the supplementary exam. 20The respondent also states that the applicant's assertion that his academic problems arose solely from his association with Dr Rasiah, which began in 2008, is incorrect. The respondent states that in the 13 courses undertaken by the applicant between 2005 and 2007, prior to Dr Rasiah's involvement, the complainant attained mixed results, failing one course and attaining marginal results (between 50% and 60%) in five others. The respondent states that the applicant's evidence does not disclose a contravention of the Act, and is otherwise vexatious, frivolous or misconceived and lacking in substance. 21Whilst the tribunal has outlined the respondent's submissions, in deciding whether to dismiss the application under section 102 of the Act, the Tribunal has focused on the applicant's evidence and whether the claim should be dismissed on the criteria in s102 of the Act. 22The applicant's claim must disclose evidence, taking the applicant's evidence at its highest, that he has been treated differently, by the respondent, because of his race. The definition of racial discrimination in s7(2) of the Act states that 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. 23The applicant asserts that he was treated less favourably by the respondent, and particularly by Dr Rasiah, in his studies because of his race and when questioned about the basis that this belief, stated words to the effect of "what else could it be?". However, he also asserts that Dr Rasiah revealed that it was racial discrimination when speaking to him in September 2009, in his use of the words "speak English". A question for the tribunal is whether the use of these words, indicating a view about the applicant's English language skills, can be considered as racially discriminatory treatment. The tribunal notes that the applicant's evidence includes evidence relating to prior academic performance, in particular, the obtaining of prior degrees which he studied in English, including at postgraduate level. The applicant thereby asserts that he has English language skills. It appears that he is indicating in his evidence that when Dr Rasiah said "speak English" this was racial discrimination given that the applicant does possess English language skills. It appears the applicant is presenting evidence to indicate that where a person does in fact possess English language skills, and receives such a comment, this comment is racially discriminating, by suggesting that due racial origin a person cannot speak English. The applicant appears to be relying on the part of the definition of racial discrimination which refers to characteristics generally imputed to a person of the applicant's race (Section 7(2) of the Act). 24The Tribunal accepts that there may be cases where the evidence in the particular case does indicate that the use of the words "speak English" may be racial discrimination. Taking the applicant's case at its highest , as is required in the current proceedings, given the applicant's evidence about his English language skills and success in previous degree courses conducted in English, including at postgraduate level, and given his racial background, it may be, considering the provisions of section 7(2) of the Act, that the use of these words could be considered discrimination on the grounds of race, and could be evidence indicating that the speaker of the words may have acted towards the applicant in a racially discriminating way. There is evidence of a significant delay in providing a benefit to the applicant, being the important benefit of providing examination results to the applicant in order that he could progress in his degree. The applicant claims that he made repeated requests for the examination results to the academic concerned, Dr Rasiah. The respondent states the delay was due to administrative oversight. The issue of the cause of the seven month delay is a matter for further evidence given the conflict in the evidence before the tribunal and cannot be decided in these preliminary proceedings. The tribunal finds that it is open to a tribunal to conclude that differential treatment of the applicant occurred in relation to the marking and notification of the examination results, and that such differential treatment may have been due to racial discrimination, given the words used by the academic who was responsible for marking the examination and providing the examination results. Having so found then the tribunal cannot conclude that the applicant's case is frivolous, vexatious or misconceived, or so lacking in substance, or fails to disclose conduct which could constitute a breach of the Act or regulation. 25In so finding the tribunal has noted that the applicant's case may rely, in part, on inferences to be drawn from the evidence and that this may present difficulties for the applicant. The Tribunal has also considered the difficulties presented by the reliance of the applicant on a conversation with Dr Rasiah in 2009 to prove the cause of conduct occurring in June 2008 to January 2009 (when the delay in the examination results occurred). The applicant also relies on evidence that he was marked differently by Dr Rasiah to another marker. He appears to rely on inferences to be drawn from the evidence, as to causation. It is accepted by the tribunal that where there is no direct evidence of racial discrimination, and where an applicant relies on inferences to be drawn from the evidence, where more probable and innocent explanations are available on the evidence, the inference will not normally be drawn. This was observed by the Tribunal in the case of Dutt v Central Coast Area Health Service [2002] NSWADT 133: 74 This difficulty for an Applicant [in providing direct evidence of racial discrimination/relying on circumstantial evidence] has long been acknowledged in decisions in this Tribunal (see, eg, Carberry v Culburra Bowling & Recreation Club Limited [1997] NSWEOT at p 3) and in the Federal jurisdiction. In Ellenbogen v Federated Municipal and Shire Council Employees Union of Australia & Ors [1989] HREOCA 3 Einfeld J said at p 11 . . . racial discrimination will mostly if not always have to be proved inferentially or circumstantially. Thus evidence of discrimination will often be solely in the hands or minds of the Respondents, and be difficult for complainants to elicit in any credible form. Absence of evidence 82 When there is no evidence to support an inference that race was a ground, particularly when there is evidence giving rise to other, equally plausible inferences, an Applicant is left with nothing more than their belief that their race was a ground. In terms of legal proof, with which the Tribunal is necessarily concerned, such a belief is insufficient to establish unlawful discrimination.... .....Evidence supporting an inference of other grounds 87 There is extensive evidence in this matter of plausible, and at times probable, grounds other than Dr Dutt's race for less favourable treatment of Dr Dutt. The fact that there could be grounds other than race for the conduct does not preclude Dr Dutt's race being also a ground. But the existence of plausible and probable other grounds makes it extremely difficult for Dr Dutt to establish, on inference alone, that his race was more probably than not also a ground for the conduct. 26In the decision of the Tribunal in Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 the following was noted in relation to the drawing of inferences: 85 The exercise of drawing inferences has been discussed the Tribunal in numerous decisions: for example, Hafez v Warilla Women's Refuge Ltd & Ors [1997] NSWEOT (at page 5 of 35); A v B [1997] NSWEOT (at page 17 of 19); Edwards v Bourke Bowling Club Limited [2000] NSWADT 31; Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]. As the Tribunal observed in Dutt at [70], the authorities canvassed in those decisions, and in Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262, identify the following considerations in the drawing of inferences of discrimination: (a) a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts; (b) an inference must be reasonably drawn on the basis of the primary facts; (c) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference; (d) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of "probable connection"; (e) the inference must be a logical one, and not supposition; (f) an inference cannot be made where more probable and innocent explanations are available on the evidence. 27The Tribunal finds in these preliminary proceedings under section 102 of the Act, that the tribunal cannot make findings on the available evidence about inferences which should be drawn and that this is properly a matter for a tribunal to decide at a full hearing. The questions of whether the inference is logical rather than supposition, or whether there is a more probable and innocent explanation available on the evidence, will be matters to be considered on a full hearing of the evidence. Without hearing from witnesses it is not appropriate for the tribunal, in a section 102 application, on the available evidence in this matter, given the conflict between the evidence of the applicant and the respondent, to weigh the evidence (which is predominantly in written form) and decide whether an inference should be drawn from the evidence. 28In relation to the applicant's claim as a whole it appears that the applicant maintains that Dr Rasiah's involvement in other areas of study/examination, and in particular in the oral component of the exams, caused detriment to the applicant due to racial discrimination. In the tribunal's view this is so entwined with the evidence of the role of Dr Rasiah in relation to the delay in marking the exams, that the tribunal cannot separate one part of the applicant's claim from the claim as a whole. Accordingly the tribunal has not made findings, in these proceedings under section 102 of the Act, in relation to parts of the claim, nor has the respondent submitted that the tribunal should do so. The tribunal has considered the applicant's case as a whole in determining whether the case should be dismissed. 29For the reasons detailed above the tribunal is not satisfied that the applicant's case, taking the applicant's case at its highest for the purposes of these proceedings, is frivolous, vexatious, misconceived or otherwise lacking in substance, or fails to disclose a breach of the Act or regulations. Accordingly, the tribunal decided not to make orders under section 102 of the Act to dismiss the application. The respondent's application for such orders is dismissed.

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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: 24 November 2011