Elbashir v Canberra Institute of Technology (Discrimination)
[2024] ACAT 10
•1 February 2024
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
ELBASHIR v CANBERRA INSTITUTE OF TECHNOLOGY (Discrimination) [2024] ACAT 10
DT 13/2023
Catchwords: DISCRIMINATION – direct discrimination – referral of discrimination complaint to the tribunal by ACT Human Rights Commission – allegation of discrimination in the provision of student accommodation – homelessness protected attribute – application dismissed
Legislation cited: Discrimination Act 1991 ss 7, 8, 21, 26, 33A
Human Rights Commission Act 2005 ss 53A, 53CA
Cases cited:Complainant 512022 v The Australian Capital Territory as represented by Canberra Health Services [2023] ACAT 66
Pikula-Carroll v ACT Corrective Services [2023] ACAT 33
List of
Texts/Papers cited: ACT Law Reform Advisory Council, Review of the Discrimination Act 1991 (ACT: Final Report, 2015)
Rees, Rice and Allen, Australian Anti-Discrimination and Equal Opportunity Law (The Federation Press, 3rd ed, 2018)
Tribunal:Senior Member J Kalokerinos
Date of Orders: 1 February 2024
Date of Reasons for Decision: 1 February 2024
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 13/2023
BETWEEN:
NOURELDIN ELBASHIR
Applicant
AND:
CANBERRA INSTITUTE OF TECHNOLOGY
Respondent
TRIBUNAL:Senior Member J Kalokerinos
DATE:1 February 2024
ORDER
The Tribunal orders that:
The application is dismissed.
………………………………
Senior Member J Kalokerinos
REASONS FOR DECISION
Introduction
This matter is a discrimination complaint referred to the tribunal under section 53A of the Human Rights Commission Act 2005 (HRC Act). The applicant, Mr Noureldin Elbashir, claims that he was discriminated against in the provision of student residential accommodation by the Canberra Institute of Technology (the CIT, or the respondent).
Where the ACT Human Rights Commission determines that a complaint is unlikely to be resolved successfully through conciliation (as it so resolved in this case), a complainant may request that their complaint be referred to the ACT Civil and Administrative Tribunal (ACAT). Following such a request, the complaint was referred to ACAT on 2 May 2023.
The complaint
At all material times, the applicant was enrolled as a student at the CIT. His complaint centred on:
(a)the CIT’s rejection of his application for student accommodation, provided by the CIT in February 2021; and
(b)the CIT’s delay in refunding a portion of sums paid by the applicant by way of bond and license fee or rental in May 2022, following a successful application for student accommodation in February 2022.
In his submission to the tribunal, the applicant claimed that the CIT discriminated against him “because of my homelessness, race, and age” and demanded from the CIT:
1/ an official apology. 2/ one million and three hundred thousand as a compensation. So I can buy my own house where no one can humiliate me or destroy my life.[1]
Factual background
The February 2021 application for student accommodation
[1] Applicant’s submission dated 6 August 2023 in respondent’s Hearing Book, pages 42-43. In his initial complaint to the ACT Human Rights Commission, the applicant sought “[c]ompensation of thirty thousand dollars ($30,000 dollars) so I can find suitable place to stay”, see Applicant’s discrimination complaint to the ACT Human Rights Commission dated 18 May 2022. The applicant did not quantify or press for either sum any further in his submissions or during the course of the hearing. Given the discrimination complaint was not successfully made out, it was not necessary to consider the matter of appropriate damages.
In February 2021 (and at all relevant times), the CIT’s criteria for eligibility for student accommodation were available on its website and were brought to the attention of persons applying for accommodation. The criteria provided that “CIT accommodation and accommodation services are provided for international and regional Australian students. Students from the ACT are not eligible.”[2]
[2] ‘CIT Student Accommodation – Eligibility Criteria’ dated 24 October 2023 in respondent’s Hearing Book dated 27 November 2023, page 96
The applicant enrolled as a student at the CIT and applied for student accommodation in February 2021. His application for accommodation specified his address as Canberra in the ACT.[3] Although this application did not specify a street address, it did expressly provide that his address was in Canberra in the ACT. Additionally, from 29 September 2020, the address in the CIT’s records for the applicant was an ACT address in Belconnen.[4]
[3] Applicant’s ‘accommodation application’ dated 1 February 2021 in respondent’s Hearing Book, page 94
[4] Witness statement of Bradley Turner dated 25 October 2023 in respondent’s Hearing Book, page 67
As the applicant was not an international or regional student at that time, he did not meet the eligibility criteria for student accommodation, and his application was declined.[5]
[5] ‘Notification of decision’ email dated 2 February 2021 in respondent’s Hearing Book, page 97
The applicant sought review of that decision and sought assistance from a counsellor in CIT Student Support, who also made representations on the applicant’s behalf. The application for review centred on the applicant’s personal circumstances at that time, which included homelessness and living in his car following marital separation.[6]
[6] Email and letter from CIT Student Counsellor to Student Accommodation Officer dated 4 February 2021 in respondent’s Hearing Book, pages 100-101. This letter referred to the applicant’s documented address as being interstate without detailing the source for this information. The factual basis for this statement could not be identified. This point was not pressed by the applicant at the hearing. It was not consistent with any of the records tendered with the Tribunal, specifically the applicant’s accommodation application, his driver licence, and his address registered in the CIT’s student information management system: Witness statement of Bradley Turner dated 25 October 2023 in respondent’s Hearing Book, pages 66-70; Respondent’s submissions dated 24 October 2023 at [6]-[7], [11]-[12]; Transcript of proceedings dated 29 November 2023, page 36, lines 4-36
Evidence was tendered by the CIT that these representations were considered internally but ultimately the original decision was not changed.[7] It is evident that consideration was given to a range of factors:[8]
(a)The accommodation was intended for international and regional students and the applicant did not meet the eligibility criteria.
(b)The rooms available were limited in number and the CIT had put the eligibility guidelines in place to ensure that interstate (regional) and international students would get preference.
(c)Other applications which did meet the eligibility guidelines were still being received.
(d)There was a risk that approval would set a precedent for other “domestic” CIT students.
(e)The CIT’s student accommodation was not intended to support homelessness, and the ACT had established other, lower-priced, accommodation options, which were designed to help people experiencing homelessness, through Housing ACT and associated support mechanisms and outreach programs (and a range of not-for-profit entities), with which the applicant was understood to be engaging.
The February 2022 application for student accommodation
[7] ‘Internal CIT correspondence’ in respondent’s Hearing Book, pages 99-119
[8] Email from CIT Student Accommodation Officer to General Manager CIT Student Association dated 4 February 2021 in respondent’s Hearing Book, pages 99-100; Email from Executive Director Corporate Services to General Manager CIT Student Association dated 17 February 2021 in respondent’s Hearing Book, page 114
One year later, the applicant again applied for student accommodation. By this time, his circumstances had changed. His application specified that he was living at an address in Leppington, NSW.[9] Leppington is a suburb in the south-west of Sydney in the local government areas of Camden and Liverpool.
[9] Applicant’s ‘second accommodation application’ dated 7 February 2022 in respondent’s Hearing Book, page 120
On the same day, the CIT wrote to the applicant to indicate that, subject to lodgement of relevant identification and other documentation, his application would be accepted,[10] and this subsequently occurred.[11]
The applicant moves out of the student accommodation without notice, owing rent in arrears and requests full refund of bond
[10] Email concerning offer of accommodation dated 7 February 2022 in respondent’s Hearing Book, page 122
[11] Email confirming acceptance of offer of accommodation dated 9 February 2022 in respondent’s Hearing Book, pages 150-151
In the following month, the applicant indicated to a student counsellor that his personal circumstances had changed and he intended to immediately vacate the student accommodation. The student counsellor informed the applicant that the relevant decision‑maker (the General Manager CIT Student Association (CITSA)) was on leave and that the applicant would be able to communicate with the General Manager upon his return from leave. The student counsellor subsequently informed the General Manager that the applicant would be seeking the return of his bond.[12]
[12] Email from CIT Student Counsellor to General Manager CITSA dated 28 March 2022 in respondent’s Hearing Book, page 180
Upon his return from leave one week later, the General Manager and Acting Student Accommodation Officer wrote to the applicant acknowledging his departure from the student accommodation, and noting that the applicant was in arrears with his rent ($185) and that a minimum of two weeks’ notice was required under his agreement for the provision of student accommodation.[13]
[13] Email from General Manager and Acting Student Accommodation Officer CITSA to the applicant dated 4 April 2022 in respondent’s Hearing Book, page 181
The applicant had occupied the accommodation for six weeks and made payments for five weeks. Accordingly, CITSA proposed to reimburse the applicant the equivalent one week of the four-week rental bond amount on the basis that he had not provided the required two weeks’ notice and he owed one week’s rent.[14]
[14] Respondent’s submissions dated 24 October 2023 at [24]
On 5 April 2022, the student counsellor wrote to the General Manager and Acting Student Accommodation Officer on the applicant’s behalf, seeking the waiver of the bond amount on compassionate grounds, on the basis that the applicant’s departure without the requisite two weeks’ notice had been due to “a range of unforeseen significant personal stressors including family and physical health issues which I consider as exceptional.”[15]
[15] Email from CIT Student Counsellor to General Manager CITSA dated 5 April 2022 in respondent’s Hearing Book, page 186
Later that day, the General Manager wrote to the applicant confirming the CIT’s position regarding the bond and outstanding rent.[16]
[16] Email from General Manager and Acting Student Accommodation Officer CITSA to the applicant dated 5 April 2022 in respondent’s Hearing Book, page 187
On 11 April 2022, the applicant lodged a complaint with the office of the CIT Chief Executive. His complaint was that he had provided notice of his departure, but it was not actioned because the relevant decision-maker was on leave.[17] From all the documents and evidence before the Tribunal, it was not clear how this assertion could be sustained.
[17] CIT Complaint Form dated 11 April 2022 in respondent’s Hearing Book, pages 195-196
Nonetheless, on 6 May 2022, the Acting Executive Director, Corporate Services, of the CIT wrote to the applicant and noted that the position the CIT had advised on 4 and 5 April 2022 was “technically correct”. However, the Acting Executive Director added:
I believe there has been a level of confusion between yourself and CITSA, and taking into account your personal circumstances, this demonstrates exceptional circumstances. I have therefore made the decision to waive the 2 week notice period, which means you will receive a further $370.00 refund from your bond.[18]
For clarity, this meant the applicant’s bond was fully refunded (including for notice periods), save for $185 which was withheld in lieu of the one week’s worth of rent which was in arrears.
[18] Email from Acting Executive Director, Corporate Services CIT to the applicant dated 6 May 2022 in respondent’s Hearing Book, pages 197-198
Shortly after that, on 18 May 2022, the applicant lodged a complaint with the ACT Human Rights Commission, seeking a written apology from the General Manager of CITSA, the dismissal of that official, and “[c]ompensation of thirty thousand dollars ($30,000 dollars) so I can find suitable place to stay.”[19] The applicant’s complaint cited the CIT’s “strange discrimination” through its denial of his February 2021 application for accommodation, and its delay in releasing his bond and withholding of one week’s worth of rent ($185) in early 2022 which “caused massive problems (sociologically, psychologically, emotionally, academically and financially)”.[20]
The legislative framework
[19] Applicant’s discrimination complaint to the ACT Human Rights Commission dated 18 May 2022 in respondent’s Hearing Book, pages 5-6
[20] Applicant’s discrimination complaint to the ACT Human Rights Commission dated 18 May 2022 in respondent’s Hearing Book, page 5
In the ACT, discrimination matters are regulated by the Discrimination Act 1991 (Discrimination Act) and the Human Rights Commission Act 2005 (HRC Act), supplemented by the common law. Section 7 of the Discrimination Act provides that the Act applies to discrimination on the ground of a number of “protected attributes”, including, relevantly, accommodation status,[21] age,[22] and race.[23]
[21] Discrimination Act s 7(1)(a)
[22] Discrimination Act s 7(1)(b)
[23] Discrimination Act s 7(1)(q)
Section 8 of the Discrimination Act provides that discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.
‘Direct discrimination’ occurs if a person “treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.”[24] That is, for direct discrimination, a complainant must show that the protected attribute was the true basis or real reason for the unfavourable treatment.
[24] Discrimination Act s 8(2)
‘Indirect discrimination’ occurs if a person “imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes.”[25] However, subsection 8(4) of the Discrimination Act provides that “a condition or requirement does not give rise to indirect discrimination if it is reasonable in the circumstances.” Under subsection 8(5):
In deciding whether a condition or requirement is reasonable in the circumstances, the matters to be taken into account include—
(a)the nature and extent of any disadvantage that results from imposing the condition or requirement; and
(b)the feasibility of overcoming or mitigating the disadvantage; and
(c)whether the disadvantage is disproportionate to the result sought by the person who imposes, or proposes to impose, the condition or requirement.
[25] Discrimination Act s 8(3)
Part 3 of the Discrimination Act sets out the forms of behaviour which constitute unlawful discrimination. Section 21 of the Act – “Accommodation” – provides that:
(1) It is unlawful for a person (whether as principal or agent) to discriminate against another person—
(a)by refusing the other person’s application for accommodation; or
(b)in the terms or conditions on which accommodation is offered to the other person; or
(c)by deferring the other person’s application for accommodation or according to the other person a lower order of precedence in any list of applicants for that accommodation.
(2) It is unlawful for a person (whether as principal or agent) to discriminate against another person—
(a)by denying the other person access, or limiting the other person’s access, to any benefit associated with accommodation occupied by the other person; or
(b)by evicting the other person from accommodation occupied by the other person; or
(c)by subjecting the other person to any other detriment in relation to accommodation occupied by the other person.
Subsection 26(2) of the Discrimination Act – “Domestic accommodation etc” – relevantly provides that section 21:
[D]oes not make it unlawful for a person to discriminate on the ground of accommodation status in relation to the provision of accommodation if the discrimination is reasonable, having regard to any relevant factors.
Section 33A of the Discrimination Act – “Discrimination relating to accommodation, goods or services etc” – provides that:
Part 3 does not make it unlawful to discriminate against a person in relation to accommodation, providing goods or services or making facilities available only because a person charges for the accommodation, goods, services or facilities.
Section 53CA of the HRC Act specifies the onus in establishing a discrimination complaint before ACAT, and subsection 53CA(2) makes clear that the applicant bears that onus:
53CA Onus of establishing complaint about discrimination etc
(1) This section applies to a discrimination complaint, referred to the ACAT under this division, about discrimination by a person against another person by—
(a)treating, or proposing to treat, the other person unfavourably because of a protected attribute of the other person (direct discrimination); or
(b)imposing, or proposing to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because of a protected attribute of the other person (other than a condition or requirement that is reasonable in the circumstances) (indirect discrimination).
(2) It is a rebuttable presumption that discrimination has occurred if the complainant—
(a)establishes that—
(i)for a complaint about direct discrimination—the treatment or proposed treatment is unfavourable; and
(ii)for a complaint about indirect discrimination—the condition or requirement has, or is likely to have, an effect of disadvantaging the other person; and
(b)presents evidence that would enable the ACAT to decide, in the absence of any other explanation—
(i)for a complaint about direct discrimination—that the treatment or proposed treatment is because of a protected attribute of the other person; or
(ii)for a complaint about indirect discrimination—that the effect of disadvantaging the other person is because of a protected attribute of the other person.
(3) The presumption under subsection (2) is rebutted if the person complained about establishes that—
(a)for a complaint about direct discrimination—the treatment is not because of a protected attribute of the other person; or
(b)for a complaint about indirect discrimination—the effect of disadvantaging a person is not because of a protected attribute of the other person.
NoteThe onus of establishing an exception or exemption to discrimination is on the person seeking to rely on it (see Discrimination Act 1991, s 70).
(4) In this section:
protected attribute means a protected attribute under the Discrimination Act 1991.
Did discrimination occur within the meaning of the Discrimination Act?
As has been noted elsewhere, the statutory framework for discrimination complaints is complex.[26]
[26] Rees, Rice and Allen, Australian Anti-Discrimination and Equal Opportunity Law (The Federation Press, 3rd ed, 2018), pages 86-87; ACT Law Reform Advisory Council, Review of the Discrimination Act 1991 (ACT: Final Report, 2015), pages 8-10
This Tribunal has previously noted that in most discrimination cases before it, the complainant is unrepresented, while institutional respondents are represented by solicitors and counsel.[27] This was also the case in this matter. The applicant was self-represented and untrained in the law, while the respondent was represented by solicitors and counsel. Throughout the hearing, the applicant expressed views, with some force, about the significant challenges he had faced in his life.[28] However, his difficulty in articulating his case both in his written and oral submissions, in the terms required by the legislation, was apparent.
[27] Complainant 512022 v The Australian Capital Territory as represented by Canberra Health Services [2023] ACAT 66 at [35], citing, Pikula-Carroll v ACT Corrective Services [2023] ACAT 33 at [37]
[28] See, for example, transcript of proceedings dated 29 November 2023, page 15, line 12-page 16, line 19
It is sometimes difficult for applicants to identify whether their complaint relates to direct or indirect discrimination. In this case, the applicant submitted that his claim related to direct discrimination.[29]
Was there discrimination in relation to the February 2021 application for student accommodation?
[29] Transcript of proceedings dated 29 November 2023, page 19, lines 1-7
In his submission to the tribunal, the applicant claimed that the CIT discriminated against him “because of my homelessness, race, and age.”[30] Although the last address of the applicant on the CIT’s records was a residential address in Belconnen,[31] the applicant submitted, and the Tribunal accepted, that the applicant was living homeless in the ACT at the time of his February 2021 application for student accommodation.
[30] Applicant’s submission dated 6 August 2023 in respondent’s Hearing Book, pages 42-43
[31] Witness statement of Bradley Turner dated 25 October 2023 in respondent’s Hearing Book, page 67
Critically, the applicant made no further reference to any of these protected attributes (or any others) in the submissions he lodged with the tribunal or at the hearing and, consequently, it was not clear how they were relevant. He did not provide any specific examples of how the CIT had treated (or proposed to treat) him unfavourably because of one of these protected attributes, within the meaning of section 53CA of the HRC Act. So much would have been necessary for the applicant to discharge the onus under section 53CA, but he did not do so.
Identifying how the respondent’s treatment (or proposed treatment) of him was unfavourable because of one or more of his protected attributes was essential to the applicant’s ability to make a successful claim of discrimination, and his failure to identify any acts or omissions by the CIT was a significant obstacle for his case.
It is necessary to review the respondent’s specific actions or omissions cited by the applicant as allegedly discriminatory in nature to seek to identify any instances of discriminatory actions or omissions, within the meaning of section 53CA of the HRC Act.
At the hearing, the applicant alleged (without providing any evidence) that the respondent had admitted another person to reside in the student accommodation in circumstances where that individual was not a CIT student, and argued that this was unfair or discriminatory.[32] Counsel for the respondent sought instructions from the CIT on this point and informed the Tribunal that the relevant individual was in fact an enrolled student of the CIT at all material times.[33]
[32] See, for example, transcript of proceedings dated 29 November 2023, page 5, line 27-page 6, line 22; page 13, line 15-page 15, line 8; page 17, lines 11-41; page 19, lines 5-41
[33] Transcript of proceedings dated 29 November 2023, page 27, line 5-page 28, line 36; page 51, lines 13-25. The student was, in fact, enrolled in studies in Aboriginal and Torres Strait Islander Cultural Arts at the Yurauna Centre in the CIT, see transcript of proceedings dated 29 November 2023, page 51, line 27-page 52, line 15
In relation to the February 2021 application for student accommodation, it would have been necessary for the applicant to prove that the CIT had rejected his application (i.e. that he had been treated less favourably) because of his homelessness. This was not established. The CIT’s eligibility criteria for student accommodation were tendered and these did not discriminate against homeless persons. The criteria are not structured in those terms.
Under the criteria, student accommodation is provided for international and regional students, and students from the ACT are not eligible.[34] This was reinforced by the reasoning provided by the CIT in its rejection of his application, which explained to the applicant that he was not eligible because he was not an international or regional student.[35] There was no statement to the effect that his application was denied because of his homelessness. As has been noted earlier in these reasons, the applicant then sought assistance from the Student Support unit, following which there was further internal consideration of his application. Those further considerations were consistent with the decision which had been taken, i.e. based upon the fact that the applicant was neither an international nor a regional student.[36]
[34] ‘CIT Student Accommodation – Eligibility Criteria’ dated 24 October 2023 in respondent’s Hearing Book, page 96; Transcript of proceedings dated 29 November 2023, page 33, lines 43-45
[35] ‘Notification of decision’ email dated 2 February 2021 in respondent’s Hearing Book, page 97
[36] Email from CIT Student Accommodation Officer to General Manager CIT Student Association dated 4 February 2021 in respondent’s Hearing Book, pages 99-100; Email from Executive Director Corporate Services to General Manager CIT Student Association dated 17 February 2021 in respondent’s Hearing Book, page 114
If the Tribunal is wrong in relation to this point and the CIT could be found to have treated the applicant unfavourably due to a protected attribute, namely his homelessness, I find that the unfavourable treatment was reasonable, under section 26 of the Discrimination Act. Relevantly, subsection 26(2) provides that:
[S]ection 21 does not make it unlawful for a person to discriminate on the ground of accommodation status in relation to the provision of accommodation if the discrimination is reasonable, having regard to any relevant factors.
The respondent submitted that the following factors were relevant for the purposes of subsection 26(2):[37]
(a)the CIT specified that its accommodation was for international and regional students;
(b)the CIT had limited accommodation available; and
(c)CITSA was still receiving applications from students that fell within the specific preferences in the CIT Guidelines.
[37] Respondent’s submissions dated 24 October 2023 at [64]
The respondent submitted that it is evident that the CIT eligibility guidelines are intended to ensure that accommodation is provided for students that are likely to be disadvantaged when commencing their studies. The applicant did not satisfy the eligibility criteria of being an international or regional student and, on that basis, it was reasonable to restrict the eligibility for accommodation to international and regional students and to distinguish between eligible applicants for accommodation by providing a preference to students within the stated categories.[38]
[38] Respondent’s submissions dated 24 October 2023 at [65]-[66]
In the circumstances, in relation to its rejection of his February 2021 application for student accommodation, if the CIT could be found to have treated the applicant unfavourably due to a protected attribute, namely his homelessness, I find that the discrimination was reasonable, having regard to these factors.
Was there discrimination in relation to the 2022 denial of the applicant’s requests for the full refund of his bond?
There was no suggestion of any protected attribute that was the basis of any discrimination by the respondent in relation to its denial of the full refund of the applicant’s bond. The applicant did not present any evidence to suggest that discrimination was the motivation or cause for it.
The respondent presented evidence which set out the clear rationale for the initial withholding of the applicant’s bond, namely, to offset rent unpaid by the applicant for periods during which he had occupied the student accommodation and in lieu of termination notice periods specified under the tenancy agreement.[39]
[39] Respondent’s submissions dated 24 October 2023 at [24], [26], [50]-[53]; email from General Manager CIT Student Association to the respondent dated 6 May 2022 in respondent’s Hearing Book, page 199; email from Executive Director Corporate Services to the respondent dated 6 May 2022 in respondent’s Hearing Book, pages 197-198; agreement for provision of Student Accommodation dated 9 February 2022 in respondent’s Hearing Book, pages 161-173
Indeed, the evidence presented to the Tribunal disclosed that the respondent exercised discretions available to it in the applicant’s favour. For example, under the accommodation agreement, termination may only occur at the end of the semester where two weeks’ notice has been given (which would have been June 2022).[40] However, the applicant sought early termination (in March 2022) after occupying the accommodation for only six weeks, and without provision of any notice, in breach of the accommodation agreement. Further, the accommodation agreement provided that applications for early termination could only be made in “exceptional circumstances”, and that the decision to grant early termination was solely at the discretion of the CITSA or its delegate.[41] The evidence presented to the Tribunal demonstrated that the applicant had presented his case for exceptional circumstances and, upon due consideration of those circumstances, the CIT decided – effectively on compassionate grounds – to exercise its discretion to fully waive the notice period.[42] All that was left outstanding was $185, comprising the applicant’s rental for the final week of his occupation which he had not, to that date, paid. The respondent retained this amount from the applicant’s bond. The Tribunal could not see any basis for these decisions being grounded in discrimination, or relating to any of the protected attributes under the Discrimination Act. This is particularly the case given that, upon presentation by the applicant of his exceptional circumstances to the respondent, the respondent clearly exercised its discretions in the applicant’s favour.
Conclusion
[40] Agreement for provision of Student Accommodation dated 9 February 2022 in respondent’s Hearing Book, page 164, clause 7.1; Respondent’s submissions dated 24 October 2023 at [24], [26], [50]-[53]
[41] Agreement for provision of Student Accommodation dated 9 February 2022 in respondent’s Hearing Book, page 164, clause 7.2
[42] Transcript of proceedings dated 29 November 2023, page 58, line 42-page 59, line 47
For the reasons outlined above, the applicant has not made out a claim of discrimination under the Discrimination Act. The discrimination complaint in this case did not meet the standards required under the statutory framework or the minimum evidentiary requirements for a presumption to arise that direct or indirect discrimination has occurred.
On the evidence available, I have not found any grounds for concluding that the actions or omissions of the respondent are reasonably explicable by discrimination as the motivation or cause. While a person may feel hurt and humiliated by particular treatment, that does not necessarily make it discriminatory conduct within the meaning of the Discrimination Act. The application is dismissed.
………………………………
Senior Member J Kalokerinos
| Date of hearing: | 29 November 2023 | |
| Applicant: | In person | |
| Counsel for the Applicant: | Mr J Larkings | |
| Solicitors for the Respondent: | ACT Government Solicitor | |
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