DAWAR and CURTIN UNIVERSITY OF TECHNOLOGY
[2017] WASAT 140
•7 NOVEMBER 2017
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: DAWAR and CURTIN UNIVERSITY OF TECHNOLOGY [2017] WASAT 140
MEMBER: MR D AITKEN (SENIOR MEMBER)
HEARD: 16 AUGUST 2017
DELIVERED : 7 NOVEMBER 2017
FILE NO/S: EOA 6 of 2017
EOA 10 of 2017
BETWEEN: GHUFRANULLAH DAWAR
Applicant
AND
CURTIN UNIVERSITY OF TECHNOLOGY
Respondent
Catchwords:
Equal Opportunity Act 1984 (WA) - Discrimination on the ground of race - Discrimination in education
Legislation:
Equal Opportunity Act 1984 (WA), s 4, s 36, s 36(1), s 36(2), s 44, s 44(1), s 89, s 90, s 107(3), s 127
State Administrative Tribunal Act 2004 (WA), s 87, s 88
State Administrative Tribunal Rules 2004 (WA), r 42A
Result:
Complaints dismissed
Summary of Tribunal's decision:
Mr Dawar made two complaints that he had been unlawfully discriminated against by Curtin University of Technology (Curtin) on the ground of his race, which the Tribunal decided to hear and determine together.
The first complaint was in respect of the refusal of his application to Curtin for admission to its Bachelor of Applied Medical Science (Medical Imaging) course in January 2017. The second complaint was in respect of the refusal of his application to Curtin for admission to its Bachelor of Science (Human Biology) course in May 2017.
Mr Dawar's ethnic background is Pashtun and he was born in Pakistan.
Curtin contended that Mr Dawar had provided academic transcripts from Kandahar University in Afghanistan which were false and said that it had refused his first application for admission in accordance with its policy and procedures where an applicant has provided false information.
Curtin contended that it had not refused Mr Dawar's second application for admission, but had merely put that on hold until the first complaint had been determined by the Tribunal because, at the time when he made that application, the first complaint was already before the Tribunal.
Curtin called its Manager Student Discipline and Compliance, Ms Tara Felton as a witness and she gave detailed evidence about the process which Curtin had followed regarding Mr Dawar's applications for admission to its courses and its attempted verification of his academic transcripts. Mr Dawar accused Ms Felton of giving false evidence. However, the Tribunal found her to be a very credible witness and accepted all of her evidence.
Mr Dawar contended that when Curtin sought verification of his academic transcripts there was a war in Afghanistan and the Taliban had taken control of Kandahar University. Mr Dawar also contended that Curtin intentionally sent information to the Taliban instead of the proper persons at Kandahar University because it wanted 'to get him' due to his race and that he had been 'singled out' among a vast number of applicants for admission to courses at Curtin.
Mr Dawar said that he had received an email from the Ministry of Higher Education of the Islamic Republic of Afghanistan, which proved that the Taliban had taken over Kandahar University and that Mr Dawar had been a 'bona fide' student of that university. The Tribunal was not satisfied that this email was authentic.
Mr Dawar also contended that Curtin had to provide cases of applicants of other races whose academic records had been subject to verification to satisfy the Tribunal that it is not only him who has had to go through the process of verification of his academic record. The Tribunal stated that this contention was misconceived, because it was not up to Curtin to prove that it had not discriminated against Mr Dawar; it was up to Mr Dawar to prove, through evidence provided by him, that Curtin had discriminated against him on the ground of his race.
The Tribunal decided that Mr Dawar had not established that there had been any discrimination against him by Curtin on the ground of his race and dismissed both complaints.
Category: B
Representation:
Counsel:
Applicant: In Person
Respondent: Ms H Millar and Ms A Ciffolilli
Solicitors:
Applicant: N/A
Respondent: In-house Counsel
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Edoo and Minister for Health [2010] WASAT 74
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 24 January 2017 the applicant, Mr Ghufranullah Dawar lodged a complaint (first complaint) with the Equal Opportunity Commission (EOC) under the Equal Opportunity Act 1984 (WA) (EO Act) alleging discrimination by the respondent, Curtin University of Technology (Curtin).
The first complaint alleges discrimination on the ground of race in the area of education due to Curtin's refusal of Mr Dawar's application in early January 2017 for admission to its Bachelor of Applied Medical Science (Medical Imaging) course (medical imaging course).
The EOC investigated the first complaint and dismissed it as lacking in substance pursuant to s 89 of the EO Act on 20 February 2017.
On 21 February 2017 Mr Dawar gave the EOC a written notice pursuant to s 90 of the EO Act requiring the EOC to refer the first complaint to the Tribunal, which the EOC did on 22 February 2017.
The first complaint was accepted by the Tribunal as proceeding EOA 6 of 2017.
The first complaint was referred to mediation, which did not result in the resolution of the matter and it was then listed for a final hearing to be held on 20 June 2017.
On 9 May 2017 Mr Dawar lodged a further complaint (second complaint) with the EOC under the EO Act alleging discrimination by Curtin.
The second complaint also alleges discrimination on the ground of race in the area of education due to Curtin's refusal of Mr Dawar's application in May 2017 for admission to its Bachelor of Science (Human Biology) course (human biology course).
The EOC investigated the second complaint and dismissed it as lacking in substance pursuant to s 89 of the EO Act on 18 May 2017.
On 3 June 2017 Mr Dawar gave the EOC a written notice pursuant to s 90 of the EO Act requiring the EOC to refer the second complaint to the Tribunal, which the EOC did on 9 June 2017.
The second complaint was accepted by the Tribunal as proceeding EOA 10 of 2017.
Curtin filed a submission with the Tribunal seeking to have both the first complaint and the second complaint heard together on the basis that there is a significant factual overlap in relation to the complaints.
The Tribunal accepted that submission and vacated the final hearing of the first complaint which was listed for 20 June 2017 and listed both complaints for a final hearing on 16 August 2017 (hearing).
Section 107(3) of the EO Act provides that the Tribunal shall hold an inquiry into each complaint referred to it under s 90 of the EO Act.
Section 127 of the EO Act provides that after holding an inquiry the Tribunal may either dismiss the complaint or find the complaint substantiated and make an order pursuant to that section.
The orders that Mr Dawar is seeking are that Curtin admit him to the medical imaging course and the human biology course.
At the commencement of the hearing the Tribunal decided, pursuant to s 51 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), that the complaints would remain as separate proceedings but be heard and determined together, so that the evidence given and contentions and submissions made by Mr Dawar and Curtin during the hearing could be taken into account in respect of each proceeding.
The evidence
During the hearing Mr Dawar gave oral evidence, but did not call any witnesses and Curtin called Ms Tara Felton, who is an employee of Curtin, as a witness.
The following documents were received into evidence:
•the referral dated 22 February 2017 from the EOC to the Tribunal of the first complaint and accompanying report (Exhibit 1);
•Admission and Enrolment Manual of Curtin (Exhibit 2);
•the referral dated 9 June 2017 from the EOC to the Tribunal of the second complaint and accompanying report (Exhibit 3);
•witness statements of Ms Felton and attachments (Exhibit 4);
•submissions and attachments filed by Mr Dawar with the Tribunal and given to Curtin on 17 July 2017 relating to the first complaint (Exhibit 5);
•submissions and attachments filed by Mr Dawar with the Tribunal and given to Curtin on 17 July 2017 relating to the second complaint (Exhibit 6); and
•email dated 14 August 2017 sent by Mr Dawar to Curtin (Exhibit 7).
The Tribunal notes that, although Mr Dawar did not refer to it during his oral evidence, in the second complaint (at page 7 of Exhibit 3) he states that his ethnic background is Pashtun and he was born in Pakistan.
Mr Dawar did not have a copy of any of the exhibits with him at the hearing, so there was a short adjournment to enable a copy of the exhibits to be made and given to him and for him to familiarise himself with those documents.
The parties confirmed that there were no other documents on which they wished to rely and the hearing proceeded on the basis that each party would refer to the particular documents contained in the exhibits on which they wished to rely.
The relevant provisions of the EO Act
The relevant provisions of the EO Act for the purposes of these proceedings are as follows.
Section 4 of the EO Act sets out the meaning of terms used in the Act.
The relevant terms are:
educational authority means a body or person administering an educational institution[.]
educational institution means a school, college, university or other institution at which education or training is provided[.]
race includes colour, descent, ethnic or national origin or nationality and the fact that a race may comprise 2 or more distinct races does not prevent it being a race for the purposes of this Act[.]
Section 36 of the EO Act sets out the meaning of discrimination on the grounds of race for the purposes of the EO Act. Section 36 provides:
(1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of race if, on the ground of
(a)the race of the aggrieved person; or
(b)a characteristic that appertains generally to persons of the race of the aggrieved person; or
(c)a characteristic that is generally imputed to persons of the race of the aggrieved person,
the discriminator
(d)treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person of a different race; or
(e)segregates the aggrieved person from persons of a different race.
(1a)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of race if, on the ground of
(a)the race of; or
(b)a characteristic that appertains generally to persons of the same race as; or
(c)a characteristic that is generally imputed to persons of the same race as,
any relative or associate of the aggrieved person, the discriminator
(d)treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat persons; or
(e)segregates the aggrieved person from persons,
who are not of that race.
(2)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of race if the discriminator requires the aggrieved person to comply with a requirement or condition
(a)with which a substantially higher proportion of persons not of the same race as the aggrieved person comply or are able to comply; and
(b)which is not reasonable having regard to the circumstances of the case; and
(c)with which the aggrieved person does not or is not able to comply.
Section 44 of the EO Act deals with discrimination against a person in the area of education on the grounds of the person's race. The relevant part of s 44 provides:
(1)It is unlawful for an educational authority to discriminate against a person on the ground of the person's race
(a)by refusing or failing to accept the person's application for admission as a student; or
(b)in the terms or conditions on which it is prepared to admit the person as a student[.]
Matters to be proved to establish the alleged discrimination
Mr Dawar bears the onus of proof in establishing his complaints of discrimination. The standard of proof is the balance of probabilities, but having regard to the serious nature and consequences of allegations of discrimination under the EO Act, the approach which the Tribunal takes is that discussed by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) at 361362; see Edoo and Minister for Health [2010] WASAT 74 (Edoo) at [53].
The Tribunal must feel an 'actual persuasion' of the occurrence or existence of the facts alleged by Mr Dawar before those facts can be found: Briginshaw at 361. Furthermore, although it is enough that the affirmative of an allegation is made out to the 'reasonable satisfaction' of the Tribunal, that reasonable satisfaction should not be produced by 'inexact proofs, indefinite testimony, or indirect inferences': Briginshaw at 362.
It is not in contention that Curtin is an educational authority for the purposes of s 44 of the EO Act.
The onus is on Mr Dawar to prove to the reasonable satisfaction of the Tribunal, in accordance with the Briginshaw approach outlined above, that Curtin has discriminated against him 'on the ground of his race', within the meaning of that expression in either s 36(1) or s 36(2) of the EO Act.
To establish discrimination under s 36(1) of the EO Act Mr Dawar must prove that because of his race Curtin has treated him less favourably than Curtin treats or would treat a person of a different race in the same circumstances, or in circumstances that are not materially different.
To establish discrimination under s 36(2) of the EO Act Mr Dawar must prove that Curtin requires him to comply with a requirement or condition and also that each of the circumstances set out in (a), (b) and (c) of s 36(2) apply to that requirement or condition.
Evidence of Mr Dawar
Mr Dawar said that his dispute with Curtin started in July 2012 following his application in May 2012 for admission to the medical imaging course.
Mr Dawar referred to an email he received from Peter Paskulich, a senior student services officer at Curtin, on 4 July 2012 (attachment A in Exhibit 5) which informed him that he had a 'sanction' on his ‘account', (original sanction) which prevented Curtin from processing his application for admission to the medical imaging course.
Mr Dawar then referred to an email which he sent to Curtin on 23 April 2017 (attachment B in Exhibit 5) which included a forwarded copy of an email he said he had received from the Ministry of Higher Education of the Islamic Republic of Afghanistan on 21 April 2017. Mr Dawar says he sent that email after Curtin had sought verification from Kandahar University in Afghanistan of the documentation which he had presented to Curtin in support of his application in 2012 for admission to the medical imaging course.
Mr Dawar said that at the time when Curtin had sought that verification the government of Afghanistan had collapsed and the Taliban (spelled by Mr Dawar as 'Taleban' in the first complaint) had taken control of Kandahar University. He inferred that the response which Curtin had received from Kandahar University was therefore false information.
Mr Dawar also referred to attachments D, E and F in Exhibit 5, which he said were emails between himself and the Ministry of Foreign Affairs of the Islamic Republic of Afghanistan in relation to the same issue and which he had also forwarded to Curtin.
Mr Dawar then referred to a letter dated 8 March 2017 to him from the office of the Ombudsman of Western Australia (attachment G in Exhibit 5), in response to a complaint which Mr Dawar made to the Ombudsman on 7 February 2017. That letter stated that it would be appropriate for Mr Dawar to await the outcome of his complaint to the EOC and that the office of the Ombudsman did not propose to take any further action in relation to his complaint to it in those circumstances.
Mr Dawar then referred to copies of his passport, driver's licence, bank debit card, Centrelink card and Medicare card (attachments A and B in Exhibit 6), an undated email to him from an admissions officer at Curtin, David Cameron (attachment G in Exhibit 6), the first page of a letter to him from Curtin regarding the second complaint (attachment F in Exhibit 6) and a copy of his Certificate of Australian Citizenship (attachment I in Exhibit 6).
In answer to a question from Ms Millar, as counsel for Curtin, Mr Dawar said that he thought the verification process carried out by Curtin was not correct and he conducted a separate process in which he contacted people within Afghanistan.
Mr Dawar also said that he now wishes to rely on his 'Australian bachelor degree' in support of his applications for admission to Curtin, instead of his Afghan academic transcripts. That was a reference to documentation from Charles Sturt University which Mr Dawar had given to Curtin.
Evidence of Ms Felton
Ms Felton confirmed the accuracy of her witness statements dated 6 June 2017 (first witness statement) and 10 July 2017 (second witness statement) and the attachments to those witness statements (Exhibit 4).
Ms Felton is the Manager Student Discipline and Compliance at Curtin and has been in that role since 10 November 2014. In the first witness statement Ms Felton states that at the time she made that statement she was the Acting Academic Registrar.
Ms Felton's first witness statement sets out the history of Mr Dawar's application for admission to the medical imaging course, which is as follows.
Mr Dawar successfully completed an English Language Enabling Course for Domestic Students at Curtin in Semester 1, in 2005.
In 2012 Mr Dawar applied for admission to the medical imaging course and as part of his enrolment application Mr Dawar provided Curtin with the following documents:
•Bachelor of Science (Honours) Degree (BSc) Medical Imaging Science academic transcript for 2006 2009 from the University of Kandahar in the Islamic Republic of Afghanistan in the name of Ghufranullah Khan Dawar s/o Sharif Dawar;
•Master of Science Degree (MSc) Medical Imaging Science academic transcript for 2010 2011 from the University of Kandahar in the Islamic Republic of Afghanistan in the name of Ghufranullah Khan Dawar s/o Sharif Dawar; and
•Translations of the above from NAATI Accredited Translator Sue Massoudi (No. 12311).
(Afghan academic transcripts; attachment 1 to Ms Felton's first witness statement is a copy of those documents)
On 18 July 2012, Associate Professor Dr Jan McKay, Discipline Leader, Medical Imaging Science, Faculty of Health of Curtin noted that in the academic transcript from Kandahar University, 23 units had unit titles identical or very similar to the unit names in Curtin's medical imaging course. Dr McKay had never seen this level of similarity before.
Based on the concerns raised by Dr McKay, the Admissions and Assessment Coordinator, University Admissions Committee of Curtin, Mr Rick Ackerman contacted the UK national agency for recognition and comparison of international qualifications and skills, UK NARIC, (incorrectly referred to as UK-NAIRC in Ms Felton's first witness statement), which is an organisation which Curtin uses to assist in recognition and comparison of international qualifications as part of its practice of verifying qualifications.
On 23 July 2012, Mr Ackerman sent by email to UK NARIC copies of the Afghan academic transcripts and requested that UK NARIC review those documents and assess their authenticity. On 31 July 2012, Mr Omar Kasem, a Research and Data Officer with UK NARIC responded by email to Curtin stating that, because Mr Dawar had not provided the final certificates for his qualifications in original language, UK NARIC was unable to carry out a full counterfraud check. On 1 August 2012, Mr Ackerman sent an email to Mr Kasem stating that the documents which had been sent to UK NARIC were all the documents which Curtin had on record. On 2 August 2012, Mr Kasem sent an email to Mr Ackerman in which he commented that UK NARIC had never seen anything like the documents which Curtin had sent to it and he recommended that Curtin request Kandahar University to send a copy of Mr Dawar's academic transcript directly to Curtin in a sealed envelope. Attachment 3 to Ms Felton's first witness statement is a copy of those emails.
On 7 August 2012, the Personal Assistant (PA) to the Academic Registrar of Curtin sent an email to the Dean of Medicine at Kandahar University requesting that he send directly to Curtin by post an original academic transcript for Mr Dawar. On 11 August 2012, the Dean of Medicine at Kandahar University, Dr Wali Mohammad Wyar, sent an email to the PA to the Academic Registrar which stated that Ghufranullah Khan Dawar s/o Sharif Dawar 'did not studied here in Kandahar University, even Kandahar University, Faculty of Medicine does not has any program about imaging, his documents are not certified by Kandahar University (sic)'. Attachment 4 to Ms Felton's first witness statement is a copy of those emails.
Curtin's policy and procedures relating to the admission and enrolment of coursework students are set out in the Admission and Enrolment Manual (Exhibit 2). On page 58 in the sixth dot point in paragraph 2.2 it states that admission to a course may be refused if an applicant or student has provided false or misleading information to Curtin or any higher education provider in relation to their admission or enrolment.
On 29 November 2012, Mr John Rowe, Academic Registrar of Curtin sent a letter to Mr Dawar informing him that that his application for admission to the medical imaging course had been denied on the grounds that he had provided false documents to Curtin. The letter stated that Curtin had received confirmation from the University of Kandahar that it did not hold a record of a student with Mr Dawar's name and Curtin had concluded that the documents that Mr Dawar had provided to it were false. Finally, the letter stated that the 'bar sanction' would remain on Mr Dawar's record and any future applications by him to study at Curtin would also be denied (November 2012 sanction). Attachment 6 to Ms Felton's first witness statement is a copy of that letter.
On 1 May 2013, Curtin received from Mr Dawar a letter dated 20 April 2013 purporting to be sent from the Vice Chancellor of the Kandahar University, Mr Abdul Tawab Bal Karzai. That letter stated that Kandahar University had not received any request from Curtin for verification of Mr Dawar's academic record and that Mr Dawar had successfully completed a BSc and MSc degree in medical imaging science. Attachment 7 to Ms Felton's first witness statement is a copy of that letter.
On 1 May 2013, Ms Claire Horner, who worked for Curtin's Academic Registrar sent a copy of the 20 April 2013 letter by email to the Vice Chancellor of the Kandahar University and asked if the Vice Chancellor could confirm that he had produced that letter. On 3 May 2013, Ms Horner received an email from Mr Abdul Tawab Balakarzai which stated that the 20 April 2013 letter was a case of fraud and the signature, the format of the letter, the stamp and his name on the letter were all fraudulent. He further stated that there is no imaging science field of study within the Medical Faculty at Kandahar University and that the university does not offer MSc degrees. Attachment 8 to Ms Felton's first witness statement is a copy of those emails.
On 31 May 2013, Mr Rowe, Academic Registrar of Curtin sent a letter to Mr Dawar which stated that the Vice Chancellor of Kandahar University had advised Curtin by email that the document which Mr Dawar had provided to Curtin on 1 May 2013, which purports to be from the Vice Chancellor and is on Kandahar University letterhead, was not issued by his office and that the bar on Mr Dawar's admission to Curtin remained in place.
On 3 January 2017, Mr Dawar applied again to Curtin for admission into the medical imaging course and his application was dismissed on the basis that he had previously provided fraudulent documentation to Curtin in an admission application.
Mr Dawar subsequently sent an undated letter to Curtin (attachment 11 in Exhibit 4) stating that his name was Ghufranullah Khan Gurbaz when he received his degrees from Kandahar University and that when he arrived in Australia as a refugee, he changed his surname to his wife's surname, which is Dawar. Mr Dawar provided a copy of a change of name certificate to Curtin as evidence of that change of name. Attachment 11in Exhibit 4 contains a copy of that certificate. It is a certificate dated 18 March 2002 issued by Australia.
In his letter to Curtin, Mr Dawar stated that because Curtin had tried to verify his academic transcripts with Kandahar University using his surname of Dawar rather than Gurbaz, the University had replied to Curtin that he had not been a student at the university.
Ms Felton said in her first witness statement that as Acting Academic Registrar it was her responsibility to consider the concerns which had been raised by Mr Dawar and decide whether to lift the bar on him being admitted to Curtin. She said that after careful consideration she decided not to do so, because she was satisfied that the decision to bar his admission on the grounds that he had provided false documents to Curtin had been made on valid and appropriate grounds.
Ms Felton also stated both in her first witness statement and in her oral evidence that throughout the process of considering Mr Dawar's application for admission to the medical imaging course, Curtin followed its policy in relation to authenticating academic records and that she always applies Curtin's policies consistently to all students regardless of their background circumstance, race or ethnicity. Ms Felton stated that at no time in her decisionmaking did she consider Mr Dawar's race or ethnicity. In her oral evidence, Ms Felton stated that a person's ethnic or racial background plays absolutely no part in decisions about verification of academic records and Curtin verifies all students equally, with academic integrity as the key objective.
Ms Felton's first witness statement concludes with her stating that Curtin is a multicultural university with staff and students from around the globe; it is committed to enhancing opportunities for people from diverse backgrounds to participate and succeed in higher education; and there have been more than 250 graduates who claim Afghanistan as the country of their birth.
In her second witness statement, Ms Felton stated that when she became aware in May 2017, as Acting Academic Registrar, of Mr Dawar's application for admission to the human biology course she decided to put that application on hold until there had been a resolution of Mr Dawar's existing race discrimination claim in the Tribunal.
In her second witness statement, Ms Felton stated that in his application for admission to the human biology course, Mr Dawar stated his name as GhufranullahKhan Dawar and she was concerned that he had made an application for admission to Curtin in a slightly different name knowing that there was a bar on his admission in the name of Ghufranullah Khan Dawar due to Curtin's view that Mr Dawar had provided falsified academic documentation.
In her second witness statement, Ms Felton stated that Curtin had previously offered to consider Mr Dawar's applications for admission if he grants Curtin written permission to access his academic transcript and other documentation related to his admission to Charles Sturt University and that information would then be assessed in accordance with Curtin's policy and procedures and it would determine whether it would be appropriate to lift the bar on Mr Dawar's admission to Curtin. Attachment 12 to Ms Felton's second witness statement contains a copy of part of an undated academic transcript and a degree from Charles Sturt University for a Bachelor of Applied Science (Medical Imaging) dated 9 December 2016. In her oral evidence, Ms Felton said that Curtin would need to see the documentation from Charles Sturt University in its entirety, including the elements within the transcript, to be able to decide what credit could be awarded to Mr Dawar within Curtin's course. Ms Felton said that Curtin had not been able to go through that process because Mr Dawar had not given Curtin permission to access that documentation from Charles Sturt University.
In her oral evidence, Ms Felton confirmed that when Mr Dawar applied to Curtin for admission to the medical imaging course in 2012 the original sanction was preexisting, but Curtin does not know why it was put in place. Ms Felton said that Curtin does not hold any reference documents for that sanction; she was not at Curtin at the time; and the people who would have been responsible for that have left Curtin.
Ms Felton was asked by counsel for Curtin, Ms Millar, how Curtin established that it was corresponding with genuine people within Kandahar University when it was doing its checking. Ms Felton said that UK NARIC provided Curtin with some guidance on who to contact in the initial enquiry to Kandahar University. Then, when Curtin had sought further information from the Vice Chancellor of Kandahar University, Curtin did some searches through UK NARIC and went to research articles that the Vice Chancellor had written and sought confirmation from the journal editors that they had actually communicated with the Vice Chancellor.
Mr Dawar's contentions
During the hearing, Mr Dawar presented his case in a very convoluted manner, which has made it difficult for the Tribunal to identify his contentions. The Tribunal has considered the transcript of the hearing and the documents which were received into evidence and is satisfied that Mr Dawar's contentions can be summarised as follows.
Mr Dawar makes the point that there is nothing in the records of Curtin in relation to the reason for the original sanction being placed against him.
Mr Dawar contends that the reason for Curtin not admitting him to the medical imaging course (the subject of the first complaint) and the human biology course (the subject of the second complaint) is the original sanction and not because of the lack of verification of his Afghan academic transcripts.
Mr Dawar contends that when Curtin sought verification of his Afghan academic transcripts there was a war in Afghanistan and the Taliban had taken control of the Kandahar University.
Mr Dawar contends that Curtin intentionally sent information to the Taliban in Afghanistan, who were not part of the Kandahar University. Mr Dawar says that the motivation for Curtin to send information to the incorrect people in Afghanistan was that Curtin was 'wanting to get [him]' because of his race and that he has been 'singled out' among a vast number of applicants for admission to courses at Curtin 'in the last 40 years'.
Mr Dawar said that the emails which Curtin says that it received from the Vice Chancellor of Kandahar University were 'bogus' and he referred to the emails which he said he received from the Ministry of Higher Education of Afghanistan in support of that contention. Mr Dawar says that the Ministry of Higher Education confirmed that he was a bona fide student at Kandahar University.
Mr Dawar contends that since 2012, he is the only applicant for admission to a course at Curtin who has been 'targeted' and that he has been singled out among '[a] million applicants of other races'. Mr Dawar says that Curtin has failed to provide twenty cases out of a million applicants of other races whose academic records have been subject to verification. Mr Dawar contends that Curtin must satisfy the Tribunal that it is not only him who has had to go through the process of verification of his academic record and that there are others who have gone through the same process.
Mr Dawar further contends that, in the past 40 years, thousands of applicants have applied for admission to Curtin from countries like Yemen, Iraq, Iran and the Middle East and that Curtin has neither stopped any of their applications nor placed a sanction on any of their accounts or made any attempt to verify their credentials with an overseas authority. Mr Dawar contends that the only 'fault' he has committed is that his race is different.
Mr Dawar contends that Curtin has rejected his application for admission to the human biology course (the subject of the second complaint), not just put it on hold. He says that he 'found on the system' that his application has been rejected.
Mr Dawar contends that Curtin 'manipulated' his name in its system to change it from Ghufranullah Khan Dawar in his application for admission to the human biology course to Ghufranullah-Khan Dawar. He says that his correct name is without the hyphen and he submitted copies of his passport, driver's licence, bank debit card, Centrelink card and Medicare card (attachments A and B in Exhibit 6) to show his correct name.
During the hearing, Mr Dawar contended that Ms Felton was not a truthful witness and that she was giving false evidence to 'favour' Curtin.
In his closing submissions, Mr Dawar said that he had decided that he only wanted to rely on his Australian bachelor degree, which the Tribunal has taken to be a reference to the degree from Charles Sturt University. When the Tribunal pointed out to Mr Dawar that it appeared to be Curtin's position that it is refusing his admission on the basis that he had provided false academic records from Kandahar University, Mr Dawar changed his mind and said that he did not want to ignore those records.
Although Mr Dawar did not refer to it during the hearing, the Tribunal has noted the contention made by Mr Dawar in the undated letter from him to Curtin to which Ms Felton referred in her first witness statement (at [58] and [59] above) that the 'degree certificate' awarded to him by Kandahar University had his surname as Gurbaz rather than Dawar, because he had only changed his name to Dawar when he arrived in Australia as a refugee. Mr Dawar attached a copy of the certificate of change of name to that letter. Attachment 11 in Exhibit 4 is a copy of that letter and certificate. In that letter Mr Dawar further contends that when Curtin decided to verify the authenticity of his academic records with Kandahar University it had used his surname of Dawar rather than Gurbaz, with the result that Kandahar University had replied to Curtin that he was not a student at that university.
Curtin's contentions
Curtin concedes that the original sanction existed in mid-2012 and says that it does not know the reason for the original sanction.
Curtin says that the original sanction has been overtaken by the November 2012 sanction and that the basis for the November 2012 sanction is that the Afghan academic transcripts which Mr Dawar provided to Curtin were false.
Curtin says that there may be questions about the administrative process followed by Curtin regarding the verification of Mr Dawar's Afghan academic transcripts, which the Ombudsman may wish to investigate. However, unless what has happened regarding that process is racially motivated or is the result of racial discrimination, then that is not relevant to Mr Dawar's complaints under the EO Act.
Curtin says that there is no evidence before the Tribunal to show that Mr Dawar was treated otherwise than the way that every other individual whose documents are verified is treated and that the treatment was consistent with the policy and procedures in place at Curtin.
Curtin also says that Mr Dawar's assertions of racial discrimination were not supported by any documentary evidence, or by any logical or plausible explanation as to why such discrimination might be taking place in relation to Mr Dawar specifically, or in relation to his ethnic group more broadly.
Curtin says that Ms Felton's evidence is credible and should be accepted by the Tribunal. Curtin says that Mr Dawar has made broad scandalous allegations; he claimed that Curtin had doctored materials, had contacted the Taliban out of a desire to disadvantage him and that Ms Felton was lying under oath. Curtin says that Mr Dawar's evidence is not credible and should not be accepted by the Tribunal.
Curtin says that it has not rejected the application by Mr Dawar for admission to the human biology course, but that it has merely put that application on hold until the first complaint has been determined by the Tribunal, because the first complaint was already before the Tribunal when Mr Dawar made that application.
Finally, Curtin says that a cost order ought to be made against Mr Dawar pursuant to s 88 of the SAT Act for the following reasons. The first complaint was days from being heard by the Tribunal when Mr Dawar lodged the second complaint with the EOC, with the result that the hearing of the first complaint was vacated, so that both complaints could be heard together. Two days before the final hearing of both complaints, Mr Dawar, in an email to Curtin (Exhibit 7), threatened to make further applications to Curtin for admission, referring to his right to lodge further complaints with the EOC. Curtin contends that Mr Dawar's conduct during the final hearing was vexatious because he is unhappy with Curtin and he seeks to vent that anger and frustration through claims in the Tribunal. Curtin says that it has conducted its response to the first complaint and the second complaint properly and that the matters which Mr Dawar has raised ought to be dealt with by the Ombudsman, without any further complaints being lodged by Mr Dawar under the EO Act. Curtin contends that Mr Dawar ought to be held to account for his conduct and costs be ordered as a consequence of the vexatious manner in which he has brought and conducted the proceedings.
Findings
The Tribunal finds Ms Felton to be a very credible witness.
During the hearing, when Ms Felton was giving her oral evidence under oath, Mr Dawar contended that she was not a truthful witness and that she was giving false evidence to 'favour' Curtin. However, when given the opportunity to put questions to Ms Felton regarding that claim, Mr Dawar failed to do so.
Also, Mr Dawar did not put any questions to Ms Felton about whether she or any of the employees of Curtin had acted in the way that they did because of Mr Dawar's race.
The Tribunal will now consider and make findings in respect of each of Mr Dawar's contentions.
Mr Dawar contends that the original sanction was put in place because of his race and that sanction is the reason for Curtin's refusal to admit him to its medical imaging course and its human biology course.
There is no evidence to establish the reason for the original sanction being put in place. The Tribunal accepts the evidence of Ms Felton that Curtin has no record of the reason for that. Mr Dawar has not proved that the original sanction was put in place because of his race.
The Tribunal accepts Ms Felton's evidence that the refusal of Mr Dawar's application for admission to the medical imaging course in January 2017 was due to the November 2012 sanction, which was put in place pursuant to Curtin's policy and procedures when Curtin concluded at that time that Mr Dawar's Afghan academic transcript documents were false.
A considerable amount of evidence was presented during the hearing regarding the authenticity of Mr Dawar's Afghan academic transcripts. However, that is not an issue which the Tribunal has to decide.
The issue which the Tribunal has to decide is whether Curtin has treated Mr Dawar less favourably than in the same circumstances, or in circumstances that are not materially different, Curtin treats or would treat a person of a different race than that of Mr Dawar. To decide that, it is necessary to identify another person in circumstances which are the same or not materially different from those of Mr Dawar (a comparator) and determine whether Mr Dawar has been treated less favourably than the manner in which the comparator was, or would be, treated.
Mr Dawar has not provided any evidence of any person who could be viewed as a comparator. It is not necessary to identify an actual person; a comparator may be hypothetical: see Edoo at [162]. However, there is nothing in the evidence by either Mr Dawar or Curtin that suggested that a hypothetical comparator in the same or not materially different circumstances would have been treated any differently, or more favourably, than the manner in which Mr Dawar has been treated.
The Tribunal finds that Curtin has followed its usual process in seeking to verify Mr Dawar's academic transcript from Kandahar University initially through an appropriate independent agency, UK NAIRIC and subsequently by contacting Kandahar University directly, having established the authenticity of the persons within that university with whom Curtin communicated.
There is no evidence to prove that Curtin has been motivated by Mr Dawar's race or has treated Mr Dawar any differently to any other student, whether of Mr Dawar's race, or any other race, in going through that process.
Mr Dawar's contention that the Taliban took control of Kandahar University and that Curtin deliberately communicated with the Taliban to 'get him' because of his race is a very serious allegation.
Mr Dawar contends that an email he says he received from the Ministry of Higher Education of the Islamic Republic of Afghanistan on 21 April 2017, which he forwarded to Curtin by email on 23 April 2017 (attachment B in Exhibit 5) proves that the Taliban had taken over the Kandahar University and that Mr Dawar had been a 'bona fide' student of that university.
The Tribunal notes that there is something very odd about the contact information for the Ministry of Higher Education stated at the bottom of the email which Mr Dawar says he received from it. It shows the email address of the Ministry as being [email protected]e.af (Tribunal emphasis) and the website of the Ministry as being (Tribunal emphasis), which casts doubt on the authenticity of that email. In accordance with the Briginshaw approach outlined in [29] above, the Tribunal does not feel an actual persuasion that the email which Mr Dawar says that he received from the Ministry of Higher Education of the Islamic Republic of Afghanistan on 21 April 2017 is authentic. Therefore Mr Dawar has not proved his contention that the Taliban took over Kandahar University and gave false information to Curtin.
Also, Mr Dawar has not provided any evidence to prove his contention that Curtin deliberately communicated with the Taliban to 'get him' because of his race.
Mr Dawar's contention that Curtin must provide details of cases of other applicants for admission to its courses, whose academic records have been subject to verification, to prove that he has not been targeted by Curtin is misconceived. It is not up to Curtin to prove that it has not discriminated against Mr Dawar; it is up to Mr Dawar to prove, through evidence provided by him, that Curtin has discriminated against him on the ground of his race.
Mr Dawar has not provided any evidence to prove his contention that he is the only applicant out of the vast number of applicants for admission to Curtin who has been 'targeted' by Curtin because of his race.
Mr Dawar has not provided any evidence to prove his contention that Curtin's system shows that his application for admission to the human biology course has been rejected by Curtin.
The Tribunal accepts the evidence of Ms Felton that Mr Dawar's application for admission to the human biology course has not been refused, but has merely been put on hold pending the decision of the Tribunal regarding the first complaint and that Curtin will make a decision regarding that application once it knows the decision of the Tribunal regarding the first complaint. The Tribunal accepts the contention of Curtin that its decision to put that application on hold was not made on the ground of Mr Dawar's race, but simply because Curtin thought that was the appropriate way to deal with that application and it would do so in any similar situation regardless of the race of the student concerned.
Accordingly, the Tribunal finds that Curtin has not discriminated against Mr Dawar on the grounds of race in putting his application for admission to the human biology course on hold pending the determination of the first complaint.
The Tribunal does not accept Mr Dawar's contention that Curtin 'manipulated' his name in its system by inserting a hyphen. The Tribunal accepts the evidence of Ms Felton that Curtin did not do that. In any event, that issue is not relevant because Mr Dawar has not provided any evidence to prove that Curtin did so to discriminate against him on the ground of his race.
With regard to Mr Dawar's statement that he now only wants to rely on his degree from Charles Sturt University in support of his application for admission to Curtin, the Tribunal accepts the evidence of Ms Felton. Ms Felton has said that Curtin has told Mr Dawar that, in accordance with its policies and procedures, it would assess whether it is appropriate to lift the November 2012 sanction if Mr Dawar grants Curtin written permission to access his full academic transcript and other documentation related to his admission to Charles Sturt University, but Mr Dawar has not given that permission. The Tribunal finds that Curtin has followed its policy and procedures and has not treated Mr Dawar less favourably than it would treat a person of a different race than that of Mr Dawar in the same circumstances regarding that matter.
Finally, the Tribunal refers to the matter referred to in [80] above as part of Mr Dawar's contentions that the reason that Kandahar University told Curtin that Mr Dawar had not been a student at that university was that his surname had been Gurbaz when he studied there and Curtin had used his subsequent changed surname of Dawar when it checked with Kandahar University. The Tribunal finds that there is no merit in that contention. There are a number of inconsistencies in respect of that contention, which the Tribunal finds to be of concern. Firstly, Mr Dawar contends that Curtin has never communicated with the proper people at Kandahar University. Secondly, the date on the change of name certificate provided by Mr Dawar is 18 March 2002 and the Afghan academic transcripts provided by Mr Dawar are in respect of degrees purportedly undertaken by him at Kandahar University between the years of 2006 and 2011 which show his surname as Dawar, not Gurbaz. Thirdly, the change of name certificate shows Mr Dawar's place of birth as Gurbaz in Afghanistan, but in the second complaint Mr Dawar stated that he was born in Pakistan.
Conclusion
Mr Dawar has not established discrimination under s 36(1) of the EO Act because he has not proved to the reasonable satisfaction of the Tribunal, in accordance with the Briginshaw approach outlined in [28] and [29] above, that he was treated less favourably by Curtin than it treats or would treat a person of a different race in the same circumstances which have applied to Mr Dawar's applications to Curtin for admission to the medical imaging course and the human biology course.
Mr Dawar has not established discrimination under s 36(2) of the EO Act. Firstly, he has not presented any evidence to prove that it was a requirement of Curtin that he provide his Afghan academic transcripts as part of his enrolment application in 2012. Secondly, even if that was the case, Mr Dawar has not presented any evidence to prove that each of the circumstances set out in (a), (b) and (c) of s 36(2) apply to any such requirement or condition.
Therefore, the Tribunal has decided to dismiss both the first complaint and the second complaint.
Costs
Counsel for Curtin, Ms Millar said in her closing submissions that a cost order ought to be made against Mr Dawar under s 88 of the SAT Act.
It is not clear to the Tribunal whether that submission was intended to mean that a costs order ought to be made in favour Curtin, because s 88 of the SAT Act only deals with the costs of, or incidental to, a proceeding, other than costs of a party (Tribunal emphasis). Section 87 of the SAT Act deals with the costs of a party.
If Curtin wishes to seek an order for costs under s 87 of the SAT Act then, pursuant to r 42A of the State Administrative Tribunal Rules 2004 (WA), it may make an application for costs within 21 days of the orders being made in these proceedings.
Orders
In each proceeding it is ordered that:
1.The applicant's complaint is dismissed.
I certify that this and the preceding [118] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D AITKEN, SENIOR MEMBER
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