Abdulla -V- The University Of Sydney (No. 2) [1997] NSWEOT

Equal Opportunity Tribunal of New South Wales

CITATION: Abdulla -V- The University Of Sydney (No. 2) [1997] NSWEOT

COMPLAINANT: Issam Abdulla

RESPONDENT: The University of Sydney

NUMBER: 130 of 1996

Mr Graham Ireland ( Judicial Member ) TRIBUNAL: Ms L Farmer Mr M Luger

GROUNDS OF COMPLAINT: Discrimination on the ground of race and victimisation

DATES OF HEARING: 06/23/1997; 06/24/1997; 06/25/1997 DATE OF JUDGMENT: 06/25/1997

Complainant: In person

LEGAL REPRESENTATIVES: Respondent: Minter Ellison (Solicitors) Ms J Oakley (Counsel)

JUDGMENT IN FAVOUR OF: Respondent

The Tribunal has considered its decision, and I propose to read the decision from my notes. I will direct that a copy of the transcript be ordered urgently, so that the parties could have access to the decision through the transcript, probably in a couple of days time.

This present aspect of the claim by Mr Abdulla against the University of Sydney comes before the Tribunal following the decision that the Tribunal brought down on 18 April 1997, in an application made to the Tribunal under section 111 of the Anti-Discrimination Act seeking that the Tribunal dismiss the two claims which Mr Abdulla had made against the University of Sydney, namely a complaint of discrimination on the ground of race, and secondly a claim of victimisation under section 50 of the Act.

On 18 April 1997 the Tribunal determined that, in relation to the claim for discrimination, the claim was not capable of being substantiated, and the Tribunal accordingly directed that that claim be dismissed. The Tribunal, however, determined that the claim for victimisation may be capable of being established, and it was not prepared to dismiss the claim at that stage. As a result, the claim for victimisation has now been the subject of further hearings of evidence, which took place on the last three days.

The judgment given by the Tribunal on 18 April 1997 contains an outline of the background of the two complaints, and it also contains a formulation by the Tribunal of the claim of victimisation. The Tribunal had found it necessary itself to formulate the claim of victimisation, as the preparatory documents of the Complainant were not adequate, on their own, to enable that to be determined.

It would be a useful start to repeat the words out of that judgment in regard to the complaint of victimisation:

"The complaint under section 50 of the Act relates to the rejection of the application of the Complainant to be admitted to the 1994 Master of Visual Arts course, and alleges that the rejection reflects the adverse attitude taken against him by the academic staff of the faculty following his allegations of discrimination to the Senate Appeal Committee and to the Vice-Chancellor in 1992, and continuing from that time up to and beyond the decision to reject his application.

The complaint includes the allegation that the decision to reject his application was not taken at first instance, based solely on his tertiary qualifications, but involved or was influenced by members of the academic staff of the faculty who continued to regard him as a troublemaker and bore a grudge against him.

The Tribunal has considered the evidence produced at this stage of the inquiry. In the view of the Tribunal that evidence contains sufficient material to suggest it would be premature to dismiss this complaint for lack of a capability of establishing sufficient substance to justify a finding in favour of the Complainant. It is possible that the Complainant can satisfy the Tribunal, on the balance of probability based on direct evidence or by inference, that the complaint is substantiated.

It should be stated in expressing this view that, except for the evidence of the college secretary, the Tribunal has not been presented with evidence by the Respondent".

Mr Abdulla is not represented before this Tribunal, and has continuing difficulty in comprehending the legal context in which the claim of victimisation has to be considered.

Mr Abdulla relied on his belief that he was victimised, but has had insufficient regard for the need to establish that in fact the decision not to accept his application to enter the Master of Visual Arts course was causally connected to the allegations of discrimination made by him in 1992 against some members of the staff of the Sydney College of Arts.

Those allegations referred to three members of the staff of that faculty. At least one of those staff members is no longer a member of the faculty, and the evidence is not clear whether one or both of the other members remained in the faculty at the date of the decision to reject the application made by Mr Abdulla.

To establish this causal connection, Mr Abdulla bears the onus to satisfy, by direct evidence or by inference, that on the balance of probability, and having regard to the serious nature of the claim, his application was rejected because he had made allegations of discrimination against members of the academic staff of the faculty.

The claim of victimisation relates to the decision made by the faculty to reject his application, that decision having been conveyed to Mr Abdulla by a letter from the faculty dated 1 November 1993.

Section 4A of the Act was not then enacted. It is necessary therefore for Mr Abdulla to establish that the sole or dominant reason for the rejection of his application was the allegation made by him against the members of the faculty.

Mr Abdulla also submitted that he made an allegation in the first semester 1993 against a faculty member, Mrs Payne, to the effect that Mrs Payne was unwilling to provide him with advice about pursuing an application to the Master of Visual Arts course, and that she asked him in a hostile manner why he wanted to do a post-graduate qualification. Mr Abdulla was unable to demonstrate that he made any allegation about this incident to the university, or to any third party.

The Tribunal is not able to determine from the evidence whether this incident in fact occurred.

Mr Abdulla had no knowledge of the process by which his application was dealt with by the faculty. He has assumed that the academic staff, of whom one at least was the subject of the allegation of discrimination, and also that Mrs Payne, had instigated or influenced the rejection of the application. There is no direct evidence to support this assumption, other than evidence from Mrs Fitzgerald, from Mrs Payne and from Mr Adams, who acknowledge that they had access to the application of Mr Abdulla.

Mrs Fitzgerald and Mr Adams could not recall reviewing specifically Mr Abdulla's application, but they were adamant that his application was inadequate, as it did not meet the standards for academic accomplishment or professional experience. Mrs Payne recalls sighting Mr Abdulla's application, and she states that it was clear to her at the time that Mr Abdulla did not meet the minimum eligibility criteria for admission to the Master of Visual Arts course.

Ms Huggan, the college secretary, stated that she recollects that she reviewed Mr Abdulla's application, and then consulted Mr Adams, who was the co-ordinator of the faculty, as to the quality of the application. She states that the decision to reject the application was made on the basis that it did not show sufficient professional equivalent experience or the necessary four year level study.

Mr Abdulla conferred with Mr Adams after receipt of the letter of 1 November 1993, and Mr Adams told Mr Abdulla that his application was rejected because his application lacked the minimum academic qualification, and lacked the four year degree level study or the equivalent professional experience.

The Tribunal has had regard to the statements in the application form, and in the 1993 university handbook, which states the minimum qualifications for admission to the Master of Visual Arts course. The wording of these documents could be construed to allow the qualifications on which Mr Abdulla relied in his application. This has contributed to the belief of Mr Abdulla that, by rejecting his application, he has been assessed unfairly.

There is some justification for this view, especially as the 1994 handbook of the university has been substantially changed, to describe these requirements with more particularity. This factor does not, in the opinion of the Tribunal, justify an inference that the treatment of Mr Abdulla, in relation to his application, was inappropriate.

The Tribunal is satisfied that the faculty considered that the qualification that Mr Abdulla had, on which he relied, was not sufficient to justify his admission to the Master of Visual Arts course, and that this decision was a decision in which the academic and administrative staff of the faculty were involved.

The Tribunal is also satisfied, however, that Mr Abdulla has not established that the decision to reject his application, even though it involved members of the academic staff, was instigated or influenced by his allegations of discrimination.

Having reached that conclusion, it follows that the claim by Mr Abdulla that he was victimised has not been established, and accordingly the Tribunal directs that the complaint be dismissed.

There will be no order as to costs.

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