Kitoko v University of Technology Sydney

[2018] FCCA 699

FEDERAL CIRCUIT COURT OF AUSTRALIA

KITOKO v UNIVERSITY OF TECHNOLOGY SYDNEY [2018] FCCA 699

Catchwords:
HUMAN RIGHTS – Application made pursuant to the AHRC Act alleging unlawful discrimination – alleged breaches of the Racial Discrimination Act1975 (Cth) – alleged breaches of the Disability Discrimination Act 1992 (Cth) – whether the discontinuation of the applicant’s Ph.D. candidature was an unlawful act – application dismissed.

Legislation:

Australian Human Rights Commission Act 1986 (Cth), s.46PO

Racial Discrimination Act 1975 (Cth), ss.9, 11, 17, 18C, 27

Disability Discrimination Act 1992 (Cth), ss.22, 42

Cases cited:

Kitoko v Mirvac Real Estate Pty Ltd [2015] NSWDC 152

Kitoko v Mirvac Real Estate Pty Ltd [2016] NSWCA 201
Kitoko v Mirvac Real Estate Pty Limited & Anor [2016] HCASL 305

Applicant: VANGU KITOKO

Respondent: UNIVERSITY OF TECHNOLOGY SYDNEY

File Number: SYG 1158 of 2016

Judgment of: Judge Nicholls

Hearing date: 12 May 2017

Date of Last Submission: 16 June 2017

Delivered at: Sydney

Delivered on: 28 March 2018

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Mr Flecknoe-Brown

Solicitors for the Respondent: Barry Nilsson Lawyers

ORDERS

1. The application made on 10 May 2016 is dismissed.

DIRECTION

The item described as the “device” and as referred to in paragraph 9 of the applicant’s affidavit of 6 July 2016 be returned to the respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1158 of 2016

VANGU KITOKO

Applicant

And

UNIVERSITY OF TECHNOLOGY SYDNEY

Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.46PO of the Australian Human Rights Commission Act 1986 (Cth) (“the AHRC Act”) on 10 May 2016 by Mr Vangu Kitoko. Mr Kitoko alleges that the University of Technology Sydney (“UTS”) unlawfully discriminated against him on the grounds of his race, in breach of the Racial Discrimination Act 1975 (Cth) (“the RDA”) and on the grounds of disability, in breach of the Disability Discrimination Act 1992 (Cth) (“the DDA”).

2. Mr Kitoko made a complaint to the Australian Human Rights Commission (“the Commission”) (see the attachment to the application to the Court filed on 10 May 2016). In a letter from the Commission to Mr Kitoko dated 11 March 2016 (which is attached to the application), the Commission, after obtaining further information from Mr Kitoko regarding his complaint, informed Mr Kitoko that “the Investigation and Conciliation Service of the Commission [would] not be taking any further action in relation to your correspondence at [that] time”.

3. I note that the complete copy of the “s.46PO notice” referred to in s.46PO(1)(b) of the AHRC Act, has not been filed by Mr Kitoko. Order 1, from orders made by the Court on 8 June 2016, provided that he must do so by 6 July 2016. However, it was not included in his affidavit of 6 July 2016, or subsequently.

Before the Court

1. Mr Kitoko is self-represented before the Court. He has made three affidavits in support of his application which have been read into evidence:

   a)The affidavit of Vangu Kitoko, Biomedical Engineering Researcher, made on 6 July 2016, annexing a number of documents.

   b)The affidavit of Vangu Kitoko, Biomedical Engineering Researcher, made on 23 September 2016, annexing a number of documents.

   c)The affidavit of Vangu Kitoko, Biomedical Engineering Researcher, made on 21 October 2016, annexing a number of documents.

2. UTS has filed three affidavits which have been read into evidence:

   a)The affidavit of Mehran Abolhasan, Associate Professor, affirmed on 22 July 2016, including a number of documents described as exhibit “MA-1”.

   b)The affidavit of Hung Nguyen, Professor of Electrical Engineering, affirmed on 25 July 2016, annexing a number of documents described as exhibit “HN-1”.

   c)The affidavit of Hung Nguyen, Professor of Electrical Engineering, affirmed on 8 November 2016, annexing a number of documents.

3. At the final hearing on 12 May 2017, and to allow the matter to progress in an expeditious fashion, no formal objections were made by either party to any of the affidavit evidence. This was done on the basis that both parties would make submissions on the weight to be accorded to the evidence. 

4. It should be noted that in the two weeks prior to the final hearing of this matter, the following events occurred. On 3 May 2017, Mr Kitoko filed an affidavit which contained an application for leave of the Court to issue two further subpoenas (in addition to the five subpoenas already issued by Mr Kitoko), to two employees of UTS to attend Court to give evidence (“the subpoena application”). Subsequently, on 8 May 2017, Mr Kitoko filed an affidavit and an accompanying exhibit containing a number of documents (“the 8 May affidavit”).  I set the matter down for directions on 10 May 2017.

5. At the directions hearing, Mr Kitoko pressed his subpoena application and the filing of the 8 May affidavit. UTS opposed both applications. Mr Kitoko was not able to explain satisfactorily, with any sufficient evidentiary basis, why he had left it so late (within two weeks of the final hearing) to attempt to put more witnesses and more documents before the Court. In this light, on what was before me, I was satisfied that there would be no disadvantage to the progression of Mr Kitoko’s case (as that case was articulated in his detailed application) if leave was refused. I refused the subpoena application and refused leave for the 8 May affidavit to be read into evidence (see the Court’s orders of 10 May 2017). I should note that Mr Kitoko was given further opportunities, which he took, to tender other relevant documents, including documents that were attached to the 8 May affidavit, during the course of the final hearing (see below at [10]).

6. At the final hearing the following witnesses  gave evidence:

   a)Mr Vangu Kitoko

   b)Ms Aki Plume, Manager at the Research Quality team at the Graduate Research School at UTS

   c)Professor Hung Nguyen, Professor of Electrical Engineering at UTS

   d)Associate Professor Mehran Abolhasan, Associate Professor at UTS.

7. Throughout the final hearing, during his examination of Ms Plume, Professor Nguyen and Associate Professor Abolhasan, Mr Kitoko showed a number of documents to the witnesses, which were then tendered and marked as exhibits. These were as follows:

   a)Applicant’s exhibit 1 (“AE1”), consisting of documents shown to Ms Plume during the course of her cross examination by Mr Kitoko that were not already in evidence before the Court, including:

   i)Scholarship allowance claim form dated 21 May 2015

   ii)Email from Mr Kitoko to “Research Scholarships”, copying Ms Plume dated 21 May 2015 referencing a “receipt” for payment.

   iii)A receipt for payment of $500 for “proofreading of PhD thesis” and a National Australia Bank (“NAB”) statement showing a $500 payment made to the relevant account on 17 June 2015.

   iv)Email from Li Na to Mr Kitoko dated 3 June 2015

   v)Document entitled “2010 Conditions of Award”

   vi)Letter from Ms Plume to Mr Kitoko dated 23 June [no year specified]

   vii)Document entitled “Graduate Research Students’ Appeals Committee Minutes of Meeting 15/1”.

   b)Applicant’s exhibit 2 (“AE2”), consisting of documents shown to Professor Nguyen in the course of his examination by Mr Kitoko that were not already in evidence before the Court, including:

   i)Email chain with the first email dated 19 March 2014 with the title “Message from The Engineering in Medicine and Biology Conference Management System”

   ii)A paper entitled “Classification of Cognitive Tasks from EEG Data Recorded with Non-contact EEG Electrodes using ICA and Neural networks”

   iii)Email chain with the first email dated 26 November 2014 from Associate Professor Abolhasan to Mr Kitoko

   iv)Document entitled, “Notes from review of Thesis, Vangu Kitoko”, dated 17 April 2015

   c)Applicant’s exhibit 3 (“AE3”), being the “device” which Mr Kitoko refers to in his affidavits as an “EPIC Sensor”.

8. I note that UTS filed written submissions on 28 February 2017 (“UTS’s first written submissions). Mr Kitoko filed written submissions on 2 May 2017 (Mr Kitoko’s first written submissions). The parties were also given the opportunity to file further written submissions, in place of oral submissions, after the final hearing. Mr Kitoko filed further written submissions on 9 June 2017 (“Mr Kitoko’s further written submissions”). UTS filed further written submissions on 15 June 2017 (UTS’s further written submissions”).

Background

1. The relevant background is as follows. Mr Kitoko was enrolled at UTS in a Doctor of Philosophy (“Ph.D.”) in January 2010 ([1] of Mr Kitoko’s affidavit of 6 July 2016). He studied in the Faculty of Engineering and Information Technology (“FEIT”) at UTS, and was awarded a UTS doctoral scholarship in the amount of $22,500 for a period of three years (until December 2012). Professor Hung Nguyen was Mr Kitoko’s principal supervisor (see [12] of Professor Nguyen’s affidavit of 25 July 2016 and pages 26 – 83 of exhibit “HN-1”).

2. Mr Kitoko’s evidence is that on 5 October 2010, he was involved in an accident at Broadway Shopping Centre, in Broadway NSW, which resulted in injuries sustained by him (“the accident”) ([2] of Mr Kitoko’s affidavit of 6 July 2016). The shopping centre was, and is, owned by Mirvac Real Estate Group Pty Limited (“Mirvac”). Mr Kitoko commenced proceedings in the District Court of NSW in relation to the accident (see Kitoko v Mirvac Real Estate Pty Ltd [2015] NSWDC 152). Judgment was given for the defendants in those proceedings. Mr Kitoko appealed to the Court of Appeal of the Supreme Court of NSW (see Kitoko v Mirvac Real Estate Pty Ltd [2016] NSWCA 201). He was unsuccessful and was refused leave to appeal to the High Court (see Kitoko v Mirvac Real Estate Pty Limited & Anor [2016] HCASL 305).

3. Between January 2010 and June 2013 Professor Nguyen considered that Mr Kitoko was making satisfactory progress in relation to his research. Professor Nguyen recorded that satisfactory progress in a series of Progress Reports throughout that period (see [13] of Professor Nguyen’s affidavit of 25 July 2016 and exhibit “HN-1” at pages

   
   

   85 – 127).

4. In November of 2012 Mr Kitoko made an application for a six month extension of his Ph.D. scholarship. This application was supported by Professor Nguyen (see [13] of Professor Nguyen’s affidavit of 25 July 2016 and exhibit “HN-1” at page 84).

5. In Mr Kitoko’s “Spring 2013 Progress Report”, Professor Nguyen recorded “conceded satisfactory progress” (see [14] of Professor Nguyen’s affidavit of 25 July 2016 and exhibit “HN-1” at pages 128 - 136).

6. By January 2014, Mr Kitoko’s candidature had exceeded the maximum four year period for completing his Ph.D. (pursuant to Rule 11.7.1(1) of the UTS Student Rules (see [15] Professor Nguyen’s affidavit of 25 July 2016 and exhibit “HN-1” at pages 14 - 15).

7. In March and June 2014 Mr Kitoko applied for extensions to his Ph.D. candidature. These extensions were subsequently granted (see [15] of Professor Nguyen’s affidavit of 25 July 2016 and exhibit “HN-1” at pages 137 – 138 and [6] of Associate Professor Abolhasan’s affidavit of 22 July 2016).

8. In Mr Kitoko’s “Autumn 2014 Progress Report”, Professor Nguyen expressed concerns regarding Mr Kitoko’s research and recorded “unsatisfactory progress”. Professor Nguyen recommended that Mr Kitoko take a leave of absence to allow him to gain additional time to finalise his thesis (see [17] of Professor Nguyen’s affidavit of 25 July 2016 and exhibit “HN-1” at pages 139 – 146).

9. As a result of Mr Kitoko’s “unsatisfactory progress”, a meeting was organised by Associate Professor Abolhasan in his capacity as Responsible Academic Officer (“RAO”). The meeting took place on 13 August 2014 (see [7] of Associate Professor Abolhasan’s affidavit of 22 July 2016 and exhibit “MA-1” at page 24). During the meeting, Mr Kitoko presented a draft thesis, submitted “two papers” and said that he had experienced an “issue around equipment, a sensor that he did not have”. Associate Professor Abolhasan indicated that he would meet with Professor Nguyen to discuss the issues raised by Mr Kitoko. The minutes of that meeting are at page 24 of exhibit “MA-1” to Associate Professor Abolhasan’s affidavit of 22 July 2016).

10. On 15 August 2014 Professor Nguyen, Associate Professor Abolhasan and Ms Phyllis Agius (a UTS Research Administration Officer), met to discuss Mr Kitoko’s research progress. During the meeting, Professor Nguyen gave a detailed account of Mr Kitoko’s progress, including that Mr Kitoko’s research had “ceased to progress”, that the final few chapters of the thesis were “lack[ing] original contribution”, and that he thought it was unlikely that Mr Kitoko would finish his thesis “within the next six months”. Professor Nguyen did not believe that a lack of equipment was causing Mr Kitoko’s lack of research progress. It was unanimously agreed that a further meeting with Mr Kitoko was required (see [19] of Professor Nguyen’s affidavit of 25 July 2016 and [8] of Associate Professor Abolhasan’s affidavit of 22 July 2016). The minutes of that meeting are at pages 147 to 148 of exhibit “HN-1” to Professor Nguyen’s affidavit of 26 July 2016.

11. On 8 October 2014 a meeting was held between Mr Kitoko, Professor Nguyen and Associate Professor Abolhasan. Mr Tim Kevin (Research and Development Officer at UTS) was also present to take the minutes of the meeting. The minutes are at page 27 of exhibit

    
    

    “MA-1” to Associate Professor Abolhasan’s affidavit of 22 July 2016 and annexure “F” to Mr Kitoko’s affidavit of 6 July 2016.

12. There is some dispute between the parties as to the objective of that meeting. In his oral evidence, Mr Kitoko stated that Professor Nguyen’s objective was to convince Mr Kitoko to take a leave of absence to allow him to reach satisfactory progress in his research, and that Associate Professor Abolhasan’s objective was to work out a way in which Mr Kitoko could complete his thesis by December 2014 (and see [6] of Mr Kitoko’s affidavit of 6 July 2016).

13. The minutes of that meeting indicate that there was a discussion about the concerns Professor Nguyen and Associate Professor Abolhasan had about Mr Kitoko’s research, particularly in relation to the (page 27.4 of exhibit “MA-1” to Associate Professor Abolhasan’s affidavit of 22 July 2016):

    “absence of information regarding protocol, ethics clearance with relation to researching human subjects, experimental methodology and systems for obtaining data and classification of subjects with disability”.

14. The minutes recorded the subsequent action to be taken as follows (page 27.6 of exhibit “MA-1” to Associate Professor Abolhasan’s affidavit of 22 July 2016):

    “After discussing various options it is agreed that Vangu [Kitoko] will contact Mehran [Abolhasan], Hung [Nguyen] and Tim [Kevin] or Phyllis Agius in the next couple of weeks and provide a demonstration of the research system and methodology to Hung’s satisfaction. He will also provide all necessary information around protocol, proof of ethics clearance and classification of disability for the people who participated in this research.

    If the demonstration is satisfactory then Vangu [Kitoko] may proceed to a Leave of Absence option to allow him more time to complete (eg 6 months) and according to Hung’s discretion appropriate arrangements may be made to help with access to facilities so that Vangu [Kitoko] can progress his candidature properly during this time.”

15. On 12 December 2014 Associate Professor Abolhasan sent an email to Mr Kitoko in which he outlined that contrary to what had been agreed on 8 October 2014, Mr Kitoko had not provided the “demonstration of the research system and methodology” referred to above at [25], nor had he completed a “Spring 2014 Progress Report” ([10] of Associate Professor Abolhasan’s affidavit made on 22 July 2016 and exhibit “MA-1” at page 28).

16. Mr Kitoko’s evidence is that the UTS Student Rules (specifically, rule 11.13.1) did not require him to complete a Spring 2014 Progress Report ([6] of Mr Kitoko’s affidavit of 6 July 2016).

17. On or around 18 December 2014, Mr Kitoko attempted to submit his thesis to the Graduate Research School (“GRS”) for examination. However, the thesis did not include a Supervisor’s Certificate from Professor Nguyen as required ([25] of Professor Nguyen’s affidavit of 25 July 2016 and exhibit “HN-1” at page 151).

18. On 6 January 2015 an email was sent by Ms Angeli Lawah, Engagement Officer at the FEIT, to Associate Professor Abolhasan, copying in Professor Nguyen and Phyllis Agius, informing him that she had advised the GRS to mark Mr Kitoko’s progress as “unsatisfactory”, due to his failure to submit a Spring 2014 Progress Report ([13] of Associate Professor Abolhasan’s affidavit of 22 July 2016 and exhibit “MA-1” at pages 31 - 32).

19. On 18 February 2015 a further meeting was held between Mr Kitoko, Professor Nguyen, Associate Professor Abolhasan and Ms Aki Plume, Manager at the GRS. The minutes of that meeting are at pages 33 to 34 of exhibit “MA-1” to Associate Professor Abolhasan’s affidavit of 22 July 2016 and were taken by Ms Agius. There is some dispute between the parties about what occurred at that meeting. In brief, Ms Plume explained that as Mr Kitoko had exceeded the maximum period for his Ph.D. candidature, under the UTS Student Rules, Mr Kitoko had the option to seek a review of his thesis by the Dean of the GRS, or alternatively, the RAO could seek from the Dean of the GRS a further extension of Mr Kitoko’s Ph.D. candidature.

20. I pause here to note that Mr Kitoko submitted, and gave evidence, that Professor Nguyen “threatened” him physically at this meeting (see further below at [129] – [131]).

21. According to the minutes of that meeting, Mr Kitoko indicated that he did not have the necessary equipment to progress his research, and that he needed a particular type of “sensor” to allow him to test his results. Professor Nguyen asserted that he could arrange to provide Mr Kitoko with the required sensor if Mr Kitoko stated what he needed. Associate Professor Abolhasan asserted that this was Mr Kitoko’s final opportunity.

22. From the minutes of the meeting, the outcomes of the meeting of 18 February 2015 appear to be as follows (see also Professor Nguyen’s affidavit of 25 July 2016 and exhibit “HN-1” at pages 153 to 154):

    “The following was agreed:

    1. MA [Associate Professor Abolhasan] will support a request of extension to GRS, and GRS will grant an extension (Aki [Ms Plume]). VK [Vangu Kitoko]  will need to submit extension of candidature form with supporting documents

    2. MA [Associate Professor Abolhasan] advised VK [Mr Kitoko] to see Hung [Professor Nguyen] regularly. Hung [Professor Nguyen] agreed to see Vangu [Mr Kitoko] whenever he has something substantial to show, approx. every 3 or 4 weeks in Mehan's [Professor Abolhasan’s] presence.

    3. Vangu [Mr Kitoko] to source equipment this week and purchase it to the value of $2.000.

    4. Vangu [Mr Kitoko] to conduct experiments.

    5. Vangu [Mr Kitoko] to write up the results of these experiments in his thesis, with details of how it was done, revising chapters with data, showing the analysis.

    6. PA [Ms Agius] to supply names of potential proof readers

    7. The above to be completed by the end of June 2015. No further extensions will be possible.

    8. Vangu [Mr Kitoko] to collect his thesis from the Graduate Research School on 19^th February 2015. Vangu [Mr Kitoko] exchanged his Mobile phone number with Aki [Ms Plume] for this purpose.”

23. Mr Kitoko’s evidence is that after the meeting on 18 February 2015, Professor Nguyen restricted his access to the Centre for Health Technology (“the CHT”) and removed Mr Kitoko’s possessions from his work station ([3] and [6] of Mr Kitoko’s affidavit of 23 September 2016). UTS’s evidence is that Professor Nguyen did not place any restrictions on Mr Kitoko’s access to the CHT, nor did he direct staff to remove Mr Kitoko’s possessions from his workstation ([3] of Professor  Nguyen’s affidavit of 8 November 2016).

1. On 19 February 2015 Mr Kitoko requested the purchase of the relevant equipment (“the device”). By email on 26 February 2015, Mr Kitoko was informed that the relevant equipment had been purchased. There is some dispute between the parties as to who paid for the device (UTS or Professor Nguyen). There is also some dispute as to whether Mr Kitoko requested the device because Professor Nguyen had advised Mr Kitoko that he would require that particular device. Mr Kitoko collected the equipment on 4 March 2015 ([31] of Professor Nguyen’s affidavit of 25 July 2016 and exhibit “HN-1” at pages
   155 - 162 and [4] of Mr Kitoko’s affidavit of 23 September 2016). As noted above, the device was tendered into evidence and is marked as AE3.

2. On 13 March 2015, Mr Kitoko submitted an application to the Dean of the GRS for a further extension of his Ph.D. candidature ([32] of Professor Nguyen’s affidavit of 25 July 2016 and exhibit “HN-1” at page 163). On 16 March 2015 Mr Kitoko sent an email to Professor Nguyen and Associate Professor Abolhasan, copying in Ms Plume and Ms Agius. The email was as follows (see [33] of Professor Nguyen’s affidavit of 25 July 2016 and exhibit “HN-1” at pages 164 – 165):

   “…After considerable study, I would like to confirm that the device proposed in 2012 and purchased by the school few weeks ago (EPIC Sensor - Pressey Semiconductors) is for basic EEG experimental studies and does not meet the expectation of an advanced research study like my PHD (Optimizing recorded EEG signals using dry electrodes, compared simultaneously with wet electrodes). If you would like me to demonstrate it to you, I am happy to do so at anytime.

   In the meantime, I consider to improve the results on the classification of EEG as proposed by Professor Hung (Chap 4 and 5 of my thesis) and after, I will send the thesis for editing. As it will take few weeks or a month (maximum), I will put extension until 30 June 2015 and once everything will be ok I will resubmit the corrected version of my thesis to the GRS…”

3. On 17 March 2015, Professor Nguyen sent an email to Associate Professor Abolhasan noting that Mr Kitoko’s email on 13 March 2015 was contrary to what had been agreed at the meeting on 18 February 2015 ([34] of Professor Nguyen’s affidavit of 25 July 2016 and exhibit “HN-1” at pages 166 – 170).

4. Attempts were made by Ms Agius, on behalf of Associate Professor Abolhasan, between mid-March 2015 and early April 2015 to organise another meeting with Mr Kitoko. However, a meeting was unable to be scheduled as Mr Kitoko was unavailable ([35] of Professor Nguyen’s affidavit of 25 July 2016).

5. On 7 April 2015 an email and a letter was sent to Mr Kitoko from UTS advising that his Ph.D. candidature was under review and “may be discontinued” ([36] of Professor Nguyen’s affidavit of 25 July 2016 and exhibit “HN-1” at pages 171 - 172).

6. On 15 April 2015, Mr Kitoko re-submitted his thesis to the GRS ([37] of Professor Nguyen’s affidavit of 25 July 2016 and exhibit
   “HN-1” at pages 164 - 165).

7. On 27 April 2015, a meeting was held between Mr Kitoko, Professor Nguyen, Associate Professor Abolhasan, Ms Lawah and Ms Lucy Jones (Director of the GRS). Mr Tim Kevin was also present to take notes.

8. There is some dispute between the parties about what was said at that meeting. The minutes of that meeting are at pages 35 to 37 of exhibit “MA-1” to Associate Professor Abolhasan’s affidavit of 22 July 2016.

9. UTS’ evidence is that at the meeting, from the minutes, it can be said that Mr Kitoko agreed to make the raw data from his experiments available, provide a description of his experimental procedure and provide the supporting documentation for “ethics clearance” by 4 May 2015 ([38] of Professor Nguyen’s affidavit of 26 July 2016 and exhibit “HN-1” at pages 173 - 175).

10. Mr Kitoko’s evidence is that due to a software upgrade, there was an issue with the computer that he had been using for his experimental work and as a result “all data stored from the computer (including the raw supporting data generated from [his] experiments) were lost” ([2] of Mr Kitoko’s affidavit of 21 October 2016). Mr Kitoko raised this at a further meeting on 4 May 2015.

11. The meeting on 4 May 2015 included Mr Kitoko, Associate Professor Abolhasan, Professor Nguyen and Ms Plume. Mr Tim Kevin was also present to take notes (I note that the minutes are incorrectly dated 4 March 2015 but, in context, refer to the meeting of 4 May 2015). The minutes of that meeting are at pages 176 to 177 of exhibit “HN-1” to Professor Nguyen’s affidavit of 25 July 2016.

12. On 14 May 2015 the IT department at UTS advised that Mr Kitoko’s computer had been “re-imaged” on 9 March 2015, and that he had been warned to “back-up” the computer prior to the upgrade ([40] of Professor Nguyen’s affidavit of 25 July 2016 and exhibit “HN-1” at page 178).

13. Also on 14 May 2015, Associate Professor Abolhasan wrote to the Dean of the GRS to recommend that Mr Kitoko’s candidature be discontinued ([17] of Associate Professor Abolhasan’s affidavit of 22 July 2016 and exhibit “MA-1” at page 40).

14. On 19 May 2015, Mr Kitoko was sent a letter on behalf of the Dean of the GRS, advising that his enrolment had been discontinued ([41] of Professor Nguyen’s affidavit of 25 July 2016 and exhibit “HN-1” at pages 179 -184).

15. By letter dated 5 June 2015 to the Dean of the GRS, Mr Kitoko appealed the decision to discontinue his enrolment ([42] of Professor Nguyen’s affidavit of 25 July 2016 and exhibit “HN-1” at pages
    185 – 189 and Mr Kitoko’s affidavit of 21 October 2016 at annexure “D”).

16. On 7 August 2015 a letter was sent to Mr Kitoko from the Appeals Committee of the Academic Board of UTS (“the Committee”). The Committee stated that at a meeting of the Committee on 3 August 2015, it was decided that Mr Kitoko’s appeal be dismissed (“the decision”) ([43] of Professor Nguyen’s affidavit of 25 July 2016 and exhibit “HN-1” at pages 190 - 191).

17. On 12 August 2015, Mr Kitoko lodged a complaint with the NSW Ombudsman in relation to the decision. By letter dated 3 February 2016, the NSW Ombudsman advised Mr Kitoko that after some initial investigation into his complaint, no further action would be taken ([44] of Professor Nguyen’s affidavit of 25 July 2016 and exhibit “HN-1” at pages 192 – 194).

Submissions

1. Mr Kitoko submitted that his Ph.D. candidature was “unfairly discontinued” by UTS ([1] of Mr Kitoko’s further written submissions). He claimed that the discontinuation was “unfairly imposed” by Professor Nguyen, and that Professor Nguyen has discriminated against Mr Kitoko on the ground that Mr Kitoko is a “black African” ([3] of Mr Kitoko’s further written submissions).

2. He also says Professor Nguyen discriminated against him on the ground that Mr Kitoko was “disabled in the brain, hands and feet”, as a result of the accident ([3] of Mr Kitoko’s further written submissions). In other words, Mr Kitoko submitted that he has been discriminated on the basis that he was a “disabled [b]lack African without prosperity as a scientist” ([3] of Mr Kitoko’s further written submissions).

3. Mr Kitoko submitted that after the accident, Professor Nguyen “cut” communication with him, and “abandoned” his supervision of Mr Kitoko’s research ([8] of Mr Kitoko’s further written submissions). He further submitted that Professor Nguyen “restricted [Mr Kitoko] to advanced technology linked to his Ph.D. research study” ([11] of Mr Kitoko’s further written submissions), and that he “denied” Mr Kitoko’s “access to facilities and services provided by” UTS ([14] of Mr Kitoko’s further written submissions).

4. At the hearing before the Court, Mr Kitoko also submitted that Professor Nguyen threatened to “physically attack” him.

5. Mr Kitoko also alleges that Professor Nguyen was “colluding” with a Dr George Lord and the Concord Public Hospital (“CPH”), where Mr Kitoko was treated for injuries arising from the accident. Mr Kitoko claims to have been discriminated against by the CPH on the basis of his race. He submitted that as Professor Nguyen’s son was employed at the CPH, Professor Nguyen was somehow being “rewarded” by the CPH for the alleged “collusion” ([16] of Mr Kitoko’s further written submissions).

6. Further, that the “collusion” also involved “Mirvac’s network” to “discriminate, victimize and humiliate” him ([17] of Mr Kitoko’s further written submissions), and that UTS ([18] of Mr Kitoko’s further written submissions):

   “…has fully supported, incited, assisted and promoted [Professor] Nguyen colluding with Mirvac’s network in order to so any of (sic) discriminatory acts without any fear”.

   Mr Kitoko claimed that because he is seeking compensation from Mirvac for the accident, and because he is a “black African”, Mirvac is “colluding” with Professor Nguyen ([24] of Mr Kitoko’s further written submissions).

7. Mr Kitoko submitted that the acts undertaken by UTS, including the discontinuation of his enrolment, and allegedly restricting his access to technology and facilities, could not have occurred in relation to any student with “different race, colour, descent or national or ethnic origin” ([27] of Mr Kitoko’s further written submissions).

8. In regard to Mr Kitoko’s claim with respect to s.9 of the RDA, UTS submitted that Mr Kitoko’s allegations that the steps taken by UTS were done so on the basis that he is a “black African”, are “entirely unsubstantiated” ([46] of UTS’s first written submissions). UTS submitted that the evidence before the Court indicates that the steps taken by it in relation to Mr Kitoko’s enrolment, was a response to Mr Kitoko’s “unsatisfactory academic performance” ([48] of UTS’s first written submissions), and that there is ([50] of UTS’s first written submissions):

   “…simply no foundation, whether directly or by inference, for any finding that any of the [a]pplicant’s race, colour or other relevant characteristic were a reason for the acts of which the [a]pplicant complains”.

9. UTS also submitted that the claim of the alleged “collusion” between Professor Nguyen, Mirvac and Dr Lord has “no inherent credibility or substance”.  Further, that Professor Nguyen’s evidence proves that he did not have any knowledge of Mr Kitoko’s proceedings against Mirvac at the relevant times, and that Professor Nguyen has not had any contact with Dr Lord, or any other persons involved in the alleged “conspiracy” ([47] of UTS’s first written submissions).

10. In regard to Mr Kitoko’s claim with respect to s.11 of the RDA, UTS submits that it should be dismissed. UTS’ submission is made on the basis that the facilities at UTS that Mr Kitoko’s contends he was excluded from, were only accessible to staff and students at UTS and therefore “there was no relevant ‘place…that members of the public are, or a section of the public is, entitled or allowed to enter or use’” ([51] of UTS’s first written submissions).

11. UTS submitted that Mr Kitoko’s claim with respect to s.17 of the RDA should be rejected on the basis that no unlawful act under Part II of the RDA is established ([52] of UTS’s first written submissions).

12. In regard to the claim relating to s.18C of the RDA, UTS submitted that there are two bases on which it should be rejected. First, the evidence shows that the dealings between Mr Kitoko and UTS were in private. Therefore, there is no evidence that any relevant act was done “otherwise than in private” ([53] of UTS’s first written submissions).

13. Second, if the Court accepts that the acts taken by UTS with respect to Mr Kitoko were not done “because of” his “race, colour or national or ethnic origin”, then it is “also not possible to describe any relevant act as being ‘reasonably likely’ to ‘offend, insult, humiliate or intimidate’ another person or a group of people” ([53] of UTS’s first written submissions).

14. UTS also submitted that on the evidence, s.27 of the RDA is not relevant. Even if the steps taken by UTS which resulted in the discontinuation of Mr Kitoko’s enrolment can be regarded as “imposing” a “penalty” on Mr Kitoko, UTS submitted that “there is no evidence that those actions were taken ‘by reason that’ [Mr Kitoko] had taken any relevant step under the RDA or the AHRC Act” ([54] of UTS’s first written submissions).

15. In regard to the claim relating to s.22(2) of the DDA, UTS submitted that while it is accepted that UTS is an “educational authority” pursuant to s.4 of the DDA, “there is no basis for any finding that any of the actions taken with respect to [Mr Kitoko], by any of [UTS’] staff, had anything to do with this putative disability” ([55] - [56] of UTS’s first written submissions). UTS submitted that Professor Nguyen’s evidence shows that he was not aware of the accident, or any resulting injuries to Mr Kitoko, until August 2015 when he read about it in a newspaper article ([56] of UTS’ first written submissions and see [47] of Professor Nguyen’s affidavit of 25 July 2016).

16. UTS also submitted that the claim in relation to s.42 of the DDA should be rejected on the basis that there is no evidence that Mr Kitoko took, or proposed to take, any steps under the DDA or the AHRC. Therefore, UTS could not have taken any steps to cause detriment to Mr Kitoko in response ([57] of UTS’s first written submissions).

Consideration

1. Mr Kitoko’s application for relief to this Court is based on his complaint that his failure to obtain academic qualifications from UTS, and the ultimate discontinuation of his enrolment, was brought about by discrimination on the part of UTS, through the conduct and actions of certain of its employees, but in particular, Professor Nguyen.

2. That discrimination was said to be because of, and for reason of, his being a “black African”, and that he was suffering from a disability. I note however that Mr Kitoko has not clearly articulated what his relevant disability is, or was.

3. UTS’s position is that Mr Kitoko’s inability to obtain academic qualifications, and the eventual discontinuation of his enrolment, was due to unsatisfactory academic progress, and not for reason of his race or any disability.

4. The following preliminary points must be made. First, Mr Kitoko asserts that Professor Nguyen’s conduct towards him was motivated by Professor Nguyen’s reaction to a complaint made by Mr Kitoko of racial discrimination, against the CPH, in circumstances where Professor Nguyen’s son was subsequently offered a position at that hospital.

5. Further, Mr Kitoko asserts that Professor Nguyen “colluded” with Mirvac, against whom Mr Kitoko had sought compensation for his accident, so as to discriminate, humiliate and distress Mr Kitoko. This “collusion” was part of a wider “Mirvac network” which included Professor Nguyen, and a doctor at the CPH (Dr Lord), other employees at UTS, and Associate Professor Pickering from the University of New South Wales.

6. On their face, such assertions of collusion by individuals across a number of large and separate organisations, and in the circumstances presented, simply in order to humiliate or victimise Mr Kitoko, could be described as fanciful. However, the substance of the allegations for current purposes must arise from the evidence that is before the Court. It is here that one particular weakness of Mr Kitoko’s case is revealed.

7. Mr Kitoko has generally approached the explanation of his case by relying on his subjective view of certain conduct, and actions by others, and by ascribing certain motivations for that conduct, which complied with his view, that setbacks to his academic progress, or perceived adverse dealings with others, could only have come about because he was a “black African”, and/or due to a disability.

8. Simply because Mr Kitoko has expressed these views and opinions, particularly as to the motivation of others, in his affidavit evidence, does not necessarily mean that they must be accepted.

9. With respect to Mr Kitoko, the thrust of his submissions appears to be that his views, as expressed in his affidavit and oral evidence, are

   
   

   self-evident and of substance, and must be accepted and preferred. There is little, if anything, in his submissions to explain why that is the case in light of the evidence otherwise before the Court. Nor, it must be said, is there any corroborative evidence of substance to support his claims.

10. Third, some of Mr Kitoko’s assertions and evidence, even if accepted or “preferred”, do not relate to, or establish a nexus to, the relevant claims of racial discrimination, or for that matter, any claims of disability discrimination (see further below).

11. The following findings of fact emerge from the evidence and do not appear to be the subject of dispute between the parties.

12. Mr Kitoko was enrolled as a Ph.D. student in biomedical engineering in the FEIT at UTS from January 2010. While a scholarship for this purpose ended in June 2013 (after a six month extension), Mr Kitoko remained enrolled until at least May 2015.

13. On 5 October 2010, Mr Kitoko was involved in an accident at a shopping centre owned by Mirvac. He suffered injuries, including injuries to his brain.

14. At this point, the parties’ positions diverge in important aspects.

15. Mr Kitoko submitted that as a result of the accident, Professor Nguyen “abandoned the supervision with (sic) [Mr Kitoko]” ([8] of Mr Kitoko’s further written submissions). It is not clear from Mr Kitoko’s submissions whether he claims that “abandonment” occurred soon after the accident, or sometime later.

16. If it is the former, then the evidence before the Court, not challenged by Mr Kitoko, was that from January 2010 to June 2013 (about two and a half years after the accident), Professor Nguyen recorded in writing that Mr Kitoko was making “satisfactory” progress in relation to his academic performance.

17. Further, in the latter part of 2012 (that is, about two years after the accident), Professor Nguyen supported Mr Kitoko’s application for a six month extension to his Ph.D. scholarship.

18. These actions by Professor Nguyen cannot be said to be consistent with the claim that he “abandoned” the supervision of Mr Kitoko. I find that on the evidence, such a claim is not made out, and is certainly not made out in relation to the period up to June 2013.

19. If Mr Kitoko’s submission sought to rely on the latter alternative set out at [82] above, then his argument appears to be as follows. At some time in 2014 or 2015, Professor Nguyen told Mr Kitoko “you do not come (sic) any more in (sic) my office since you are the least intelligent student of all my career as an academic” ([8] of Mr Kitoko’s further written submissions).

20. Mr Kitoko’s evidence is not clear as to when the purported statement by Professor Nguyen was made. In his affidavit of 6 July 2016 (at [6]), the statement was said to have been made on 21 August 2014. In his oral evidence, and his first, and further, written submissions, it was said to have been made on 21 July 2014 (see [21] of Mr Kitoko’s first written submissions and [8] of Mr Kitoko’s further written submissions). In any event, Mr Kitoko claimed that at the time the purported statement was made, Professor Nguyen ceased communication with him. That appears to be the basis for the claimed “abandoning” of him as a student.

21. The difficulty for Mr Kitoko is that he has not satisfactorily explained, let alone provided evidence to substantiate, or even corroborate, the allegation that Professor Nguyen made such a statement and “abandoned” him as a result of the accident.

22. Keeping in mind that the accident had occurred some (approximately) three and a half years before the purported statement made by Professor Nguyen to Mr Kitoko.

23. I also note that Mr Kitoko gave oral evidence that he was “abandoned” by Professor Nguyen on 21 July 2014. In context, I understood this evidence to refer to the claim set out above.

24. When cross-examined by Mr Kitoko, Professor Nguyen agreed that he had a meeting on that day (21 July 2014) with Mr Kitoko, but did not remember what he had said to Mr Kitoko. His evidence was, when understood in its totality, that he would not have said anything like that because it was “not in [his] nature”.

25. When viewed on its own, it is difficult to make a finding as to which version of events is to be preferred, and whether such a statement was made by Professor Nguyen.

1. However, even if Mr Kitoko’s version is to be accepted, the difficulty for current purposes for Mr Kitoko, is that the statement alleged to have been said by Professor Nguyen, does not reveal, or indeed indicate, any link to any racial element, or to the accident (and any resulting disability). On its face, it may simply have been an, albeit harshly, expressed opinion by an academic supervisor of a poorly performing student.

2. This matter needs to be seen in the context of the evidence of Mr Kitoko’s academic performance and dealings with UTS over the period from June 2013 to May 2015.

3. In late 2013, Professor Nguyen recorded in the Spring 2013 Progress Report that Mr Kitoko had “conceded satisfactory progress.” He gave reasons for this which included the need for some focus and dedication on the part of Mr Kitoko to complete his Ph.D. project ([14] of Professor Nguyen’s affidavit of 25 July 2016).

4. It is to be noted that by January 2014, the maximum period for completing Mr Kitoko’s Ph.D. (four years) had passed. In March and June 2014, Mr Kitoko sought extensions of the time in which to complete his Ph.D. Ultimately, on the evidence, the extensions were granted until the end of 2014 (see [15] of Professor Nguyen’s affidavit of 25 July 2016 and [6] of Associate Professor Abolhasan’s affidavit of 22 July 2016).

5. In the circumstances, Mr Kitoko has not satisfactorily explained the inconsistency between the assertions of some “collusion” between Professor Nguyen and Mirvac which, on his view, arose from the accident, and the events in relation to Mr Kitoko’s academic progress.

6. If Professor Nguyen and UTS were engaged in some ongoing collusive conduct with Mirvac due to the accident (an event in 2010), they would not be reasonably expected to have granted Mr Kitoko the extensions he sought. Again, Mr Kitoko’s claim of discrimination due to him being a “black African”, is contradicted by the granting of two extensions to complete his Ph.D.

7. I should note at this point that as set out above, Mr Kitoko also claimed that a doctor at the CPH (Dr Lord) was also a part of this “collusion”.

8. In his application to the Court, and in his affidavit of 6 July 2016 (at [4]), Mr Kitoko stated that on 16 October 2012 his treating neurologist at CPH:

   “…has denied to hand over me (sic) the true results of the nerve conduction studies performed on my body… To punish me being (sic) a black African for sue (sic) the Broadway Mirvac Shopping Centre to the [C]ourt (sic) for compensation. It is discrimination (Racism and Victimisation) against the Applicant”.

9. Mr Kitoko reported his grievance with Dr Lord, and the CPH to the NSW Anti-Discrimination Board. Annexed to his affidavit of 6 July 2016 at annexure “C”, is a letter from the NSW Anti-Discrimination Board acknowledging the complaint made by Mr Kitoko. It notes that the complaint had been referred to the NSW Civil and Administrative Tribunal (“NCAT”) for public hearing. Also annexed to that affidavit at annexure “D” is a letter from NCAT to Mr Kitoko regarding a listing of a “Case Conference” in relation to his complaint. Mr Kitoko has not provided any evidence as to any outcome of that complaint.

10. It is to be remembered that neither the CPH, nor Dr Lord is a party to these proceedings. It is Mr Kitoko himself who has raised these claimed events to argue that there was a “Mirvac network”, which included Professor Nguyen and UTS, and which he claims, is evidence of discrimination because he is a “black African”.

11. In his same affidavit (of 6 July 2016 at [5]) Mr Kitoko draws the parallel between the doctor at CPH and Professor Nguyen:

    “At the UTS, Professor Hung Nguyen has also discriminated against the Applicant. I was humiliated with all unfair treatments and then victimised, for being a black African reporting breach of NSW Anti-Discrimination Act at the Concord Hospital and suing Mirvac Real State (sic) for compensation.

    After failing in all the strategies used to take the applicant out the (sic) PHD program including restrictions to have adequate supervision and to access the Centre for Health Technologies (CHT) laboratory and also to access advanced equipment and also placing colleague feminine (sic) so sexual harassment could be claimed, Professor Hung has finally imposed unfairly the discontinuation of my PHD candidature, by imposing the Responsible Academic Officer (RAO) of the Faculty of Engineering and Information Technologies (FEIT) to unfairly record two successive unsatisfactory progress in my PH.D candidature.”

12. The parallel drawn by Mr Kitoko in the absence of any other evidence, to support the various iterations of his claim that a number of people have “colluded” to discriminate against him, must be rejected on any reasonable or rational view of the evidence.

13. In the circumstances, and stressing the absence of any other evidence before the Court, the preferred view of Mr Kitoko’s evidence is that he resorts to a claim of racial discrimination when he is aggrieved by the conduct of others.

14. This view is reinforced by the evidence in relation to the other events of 2014.

15. In the “Autumn 2014 Progress Report”, Professor Nguyen set out his concerns about Mr Kitoko’s research as follows ([17] of Professor Nguyen’s affidavit of 25 July 2016 and exhibit “HN-1” at pages

    
    

    139 - 146):

    “By the Autumn semester of 2014 (January to June 2014):

    a. I expressed further concerns in the Autumn 2014 Progress Report regarding the Applicant’s research:

    ‘…progress in the Autumn 2014 semester has been less than planned. He has not produced any chapter fully, and he has not submitted any journal paper to the IEEE Transactions on Biomedical Engineering although he has indicated so in his report. He has not completed his PhD thesis within candidature time. The reason for the slow rate of progress is probably because he has not spent enough productive time in his research work and/or has not developed independent research ability sufficiently. He would need to focus more on the crucial experiments which would highlight the innovative part of his research work and to be more resourceful in working out independently what would work for his research. My advice to the student would be leave of absence, as there is substantial work to be done for [Mr Kitoko] to finalise his PhD thesis’;

    b. as a result of my professional opinion expressed above, I recorded an unsatisfactory progress in the Autumn 2014 Progress Report…”

16. Professor Nguyen recorded Mr Kitoko as having made “unsatisfactory progress” in his “Autumn 2014 Progress Report”.  Professor Nguyen gave evidence that as a result of this report, he organised a meeting with Mr Kitoko which took place on 13 August 2014. Associate Professor Abolhasan has provided contemporaneous minutes of that meeting taken by Ms Agius (see Associate Professor Abolhasan’s affidavit of 22 July 2016 and exhibit “MA-1” at page 24).

17. For current purposes, the following is relevant. The minutes record that Mr Kitoko presented a “draft thesis”. In response to a question as to why he had been given an “unsatisfactory report”, Mr Kitoko is reported to have replied (see Associate Professor Abolhasan’s affidavit of 22 July 2016 and exhibit “MA-1” at page 24.7):

    “…that there was an issue around equipment, a sensor that he did not have. He elaborated on the equipment issue, and referred to getting help from engineers to modify some equipment. He also referred to being told by his supervisor that as a researcher, he was too dependent on others.”

18. Associate Professor Abolhasan also gave evidence that on 15 August 2014 he met with Professor Nguyen to discuss Mr Kitoko’s academic progress. Professor Abolhasan has provided contemporaneous minutes, taken by the same person who took the minutes of the previous meeting (Ms Agius), and was also present on this occasion ([8] of Associate Professor Abolhasan’s affidavit of 22 July 2016 and exhibit “MA-1” at pages 25 – 26). Mr Kitoko has also provided a copy of the minutes of this meeting (see annexure “E” to his affidavit of 6 July 2016).

19. The minutes show that Associate Professor Abolhasan told Professor Nguyen about his meeting with Mr Kitoko on 13 August 2014. Professor Nguyen provided an account of Mr Kitoko’s academic progress. Essentially, this was that Mr Kitoko had made “good progress in his first two to two and a half years” (in context this is from January 2010 to about half way through 2012), but then “his work more or less stopped”. Further, it was reported that Professor Nguyen stated (see Associate Professor Abolhasan’s affidavit of 22 July 2016 and exhibit “MA-1” at pages 25.6):

    “[Mr Kitoko] seemed dependent on others and expected others to build his equipment for him. In the last two years, when submitting conference papers he often waited until the last minute before submitting something and then, because he had little results to report, his papers were not accepted. In many chapters of his draft thesis, his original contribution was lacking.”

20. The minutes also reveal that Professor Nguyen did not accept that there was any problem with equipment as claimed by Mr Kitoko. However (see Associate Professor Abolhasan’s affidavit of 22 July 2016 and exhibit “MA-1” at pages 25.8):

    “[Professor Nguyen] denied the equipment was a problem. If it was an oscilloscope, he said they have several oscilloscopes and even have a $30,000 spectrum analyser that can be used. [Professor Nguyen] said [Mr Kitoko] can borrow those from Ray Clout (senior engineer). It might be another piece of equipment relating to the non-gel sensor. If that is the case, it is [Mr Kitoko’s] responsibility to work out what he needs and discusses (sic) this with [Professor Nguyen].”

21. Mr Kitoko made reference to both these meetings in his first written submissions at [21]. The reference there to a meeting on “15 August 2014”, which in context, should be a reference to “13 August 2014”, being the meeting at which he was in attendance (see [6] of his affidavit of 6 July 2016). In essence, these references simply record that the meetings had occurred, and state Mr Kitoko’s view of the objectives of the meetings.

22. There is nothing from Mr Kitoko’s evidence, or submissions, claiming that Associate Professor Abolhasan was a part of the “Mirvac network”. What can be seen from these events is that UTS, through Associate Professor Abolhasan, acted appropriately following the unsatisfactory progress report from Professor Nguyen, to ascertain whether any remedial action could be taken to assist Mr Kitoko.

23. On 8 October 2014 Mr Kitoko met with Professor Nguyen and Associate Professor Abolhasan. The contemporaneous minutes of that meeting are before the Court (see Associate Professor Abolhasan’s affidavit of 22 July 2016 and exhibit “MA-1” at page 27). The minutes reveal that Mr Kevin was also present.

24. At that meeting Mr Kitoko was advised by Associate Professor Abolhasan of the following (see Associate Professor Abolhasan’s affidavit of 22 July 2016 and exhibit “MA-1” at page 27.2):

    “[Mr Kitoko’s] completion deadline is fast approaching and he is in the situation where one more unsatisfactory review of progress will mean discontinuation.”

25. The details discussed were as follows (see page 27.3 of exhibit

    
    

    “MA-1” to Associate Professor Abolhasan’s affidavit of 22 July 2016):

    “Aim of the meeting is to determine a course of action so that [Mr Kitoko] can reach completion.

    [Professor Nguyen] and [Mr Kitoko] discussed progress so far.

    Determined that the first major chapter and paper is largely ok.

    [Professor Nguyen] raised a major concern with subsequent papers and chapters (particularly chapter 4) about the absence of information regarding protocol, ethics clearance with relation to researching human subjects, experimental methodology and systems for obtaining data and classification of subjects with disability.

    [Professor Abolhasan] and [Professor Nguyen] discussed these issues with [Mr Kitoko] at length and emphasised that it is absolutely crucial to have ethics clearance and properly demonstrated research protocol.

    [Mr Kitoko] raised issues regarding past difficulties in obtaining access to required equipment. It was agreed by all that in the interests of his candidature it was necessary to look forward to a way to work towards completion from here.”

26. The participants agreed on the following proposed actions (see Associate Professor Abolhasan’s affidavit of 22 July 2016 and exhibit “MA-1” at page 27.7):

    “ACTION

    After discussing various options it is agreed that [Mr Kitoko] will contact [Professor Abolhasan], [Professor Nguyen] and Tim or Phyllis Agius in the next couple of weeks and provide a demonstration of the research system and methodology to [Professor Nguyen’s] satisfaction. He will also provide all necessary information around protocol, proof of ethics clearance and classification of disability for the people who participated in this research.

    If the demonstration is satisfactory then [Mr Kitoko] may proceed to a Leave of Absence option to allow him more time to complete (eg 6 months) and according to [Professor Nguyen’s] discretion appropriate arrangements may be made to help with access to facilities so that [Mr Kitoko] can progress his candidature properly during this time.”

27. This meeting is important to the current consideration. It provides the basis for the following findings. The relevant parties at UTS had concerns about Mr Kitoko’s academic progress. These concerns were squarely put to him. This was not the first occasion when concerns about academic progress were put to Mr Kitoko. In the circumstances, the proposed action plan appears reasonable.

28. The report of this meeting provides strong support for UTS’s contention that Mr Kitoko’s discontinuation as a Ph.D. student was due to poor academic progress. It provides a strong argument against Mr Kitoko’s contention that he was the subject of discrimination because he was a “black African”, and the subject of discrimination because of his disability.

29. On 12 December 2014 Mr Kitoko was given yet further notice of unsatisfactory academic progress by Associate Professor Abolhasan (see [10] of Associate Professor Abolhasan’s affidavit of 22 July 2016 and exhibit “MA-1” at page 28). Specifically, that Mr Kitoko had not provided the “demonstration of the research system”, nor had he compiled “all necessary information around protocol, proof of ethics clearance and classification of disability for the people who participated in [his] research”, which had been agreed to at the meeting on 8 October 2014 (see above at [19]). Mr Kitoko was put on notice at the 8 October 2014 meeting that he had the “next couple of weeks” to address these matters, or else a further unsatisfactory progress report would be recorded.

30. Mr Kitoko acknowledged these requirements in his first written submissions, but did not address whether he fulfilled them (see particularly [21](viii)(i) of those submissions). When asked about these requirements in cross examination, Mr Kitoko agreed that the “demonstration” was a condition of satisfactory progress, but that he could not “demonstrate” due to “lack of instrument”. This provides yet further evidence to support the findings set out above.

31. There is nothing on the evidence before the Court to show that Mr Kitoko attempted to address these matters. Instead, on 16 December 2014 he, on his own submission, acting as an “independent student”, attempted to submit his thesis to the GRS for examination (and see [6] of Mr Kitoko’s affidavit of 6 July 2016). Mr Kitoko submits that part of his thesis was dependent on “three published papers”, which had the support of Professor Nguyen in obtaining publication ([9] of Mr Kitoko’s further written submissions).

32. It must be said that Mr Kitoko’s approach to the matters he has elected to address (or not address) in his submissions is “selective”. This can be seen when regard is had to subsequent events.

33. Mr Kitoko’s approach to his studies in late 2014 and 2015 appears to have been to ignore the reasonable requirements for his academic progress, that had been communicated to him by Professor Nguyen and Associate Professor Abolhasan, and to pursue his own course, irrespective of the views of his academic supervisors.

34. Professor Nguyen’s evidence is that Mr Kitoko did not obtain a Supervisor’s Certificate from him before submitting his thesis. Mr Kitoko does not dispute this. There is no reason to not accept Professor Nguyen’s evidence that the Supervisor’s Certificate provides an important safeguard to ensure that the thesis was of a “reasonable academic standard”, “ready for examination”, and had complied with relevant UTS policies ([25] of Professor Nguyen’s affidavit of 25 July 2016).

35. Mr Kitoko’s failure to take the required steps led to an unsatisfactory progress report at the end of 2014.

36. Professor Nguyen’s evidence, which was not challenged in cross-examination, was that a meeting was held on 18 February 2015 between himself, Mr Kitoko, Associate Professor Abolhasan and Ms Plume (with minutes taken by Ms Agius). Professor Nguyen’s position at this time was that Mr Kitoko be given a final opportunity to complete his thesis. Professor Nguyen’s evidence is that he had read the thesis submitted by Mr Kitoko and was of the view that the previously identified “issues” remained (see [28] – [29] of Professor Nguyen’s affidavit of 25 July 2016).

37. However, as against this, Mr Kitoko also submitted that at the meeting on 18 February 2015, Professor Nguyen threatened to “physically attack” Mr Kitoko ([14] of Mr Kitoko’s first written submissions).

38. In cross-examination, Professor Nguyen did not agree that he had physically threatened Mr Kitoko at the meeting on 18 February 2015, or at any other time. Before the Court, UTS submitted that Professor Nguyen presented as an older person (older than Mr Kitoko), of slight build and of calm demeanour. In my view that, of itself, is not determinative of Mr Kitoko’s allegation.

39. However, there is nothing in the evidence before the Court to corroborate Mr Kitoko’s claim or to argue against Professor Nguyen’s denial. Associate Professor Abolhasan and Ms Plume were both present at the meeting on 18 February 2015, and were otherwise

    
    

    cross-examined by Mr Kitoko. Mr Kitoko’s failure to cross-examine them on this issue lends weight to the finding that no such threats were made. In all the circumstances (and see further references to this meeting in this judgment), I do not accept that Professor Nguyen threatened to “physically attack” Mr Kitoko at the meeting on 18 February 2015, or at any other time.

40. The minutes of the meeting reveal advice provided by Ms Plume (see Professor Nguyen’s affidavit of 25 July 2016 and exhibit “HN-1” at pages 153 - 154). This was that Mr Kitoko had “exceeded his maximum candidature”. Ms Plume outlined that Mr Kitoko had two options pursuant to the UTS “rules”. These were to seek review of the thesis by the Dean and board of the GRS, or alternatively, that the RAO seek a further extension of Mr Kitoko’s candidature by making a “special case” to the Dean of the GRS for an exemption to the rule that students whose candidature has expired be discontinued.

41. In his submissions, Mr Kitoko appears to take the view that confirmation by Ms Plume that he could seek review under the UTS rules meant that his thesis had been completed. Mr Kitoko appears not to have understood then, or to understand now, that the purpose of the review by the Dean and the board of the GRS was, on the evidence, a review of the efficacy of the thesis, in light of the deficiencies identified by Professor Nguyen, who was the thesis supervisor.

42. Mr Kitoko appears to have confused this review process with “approval” by the Dean of his thesis. The argument appeared to be that as the RAO did not seek, in effect, the extension of his study, then the thesis must have been approved. It appears, at best, that Mr Kitoko took the view that it was up to him to choose an “extension”. Therefore, because he was given another opportunity to submit his thesis, his candidature was extended (for example see [15] of Mr Kitoko’s first written submissions).

1. During his cross examination of Ms Plume, Mr Kitoko was given a degree of latitude (in the face of objection from UTS) to question her as to the “interpretation” of the UTS rules. This included his assertion that his bank account had been credited in June 2015 with $500 to allow for thesis proofreading (see further below).

2. In short, Mr Kitoko’s position was that the outcome of the 18 February 2015 meeting was that his thesis was accepted, or approved, for examination.

3. Mr Kitoko’s submissions in this regard again appeared to ignore other intervening events relevant to the matter of his academic progress.

4. The meeting of 18 February 2015 occurred, in context, because of Mr Kitoko’s assertion that he did not have certain equipment that he needed in order to verify certain data results in his research. This required a particular type of “sensor”.

5. The evidence reveals that Professor Nguyen said that he would arrange for the purchase of this sensor upon receipt of a statement from Mr Kitoko as to what he said he specifically needed. The meeting minutes record that it would then be up to Mr Kitoko to conduct the necessary experiments and to record the results for his thesis (see Professor Nguyen’s affidavit of 25 July 2016 and exhibit “HN-1” at page 154).

6. It is important to note that at the meeting Associate Professor Abolhasan agreed to support Mr Kitoko’s request for a further extension of his candidature and that the GRS (through Ms Plume) would grant an extension. For completeness, the minutes of the meeting record that the following was agreed (see page 34.6 of  Associate Professor Abolhasan’s affidavit of 22 July 2016 and exhibit “MA-1” at page 34.6 and Professor Nguyen’s affidavit of 25 July 2016 and exhibit “HN-1” at page 154.7 [also set out above at [33] but for ease of comprehension, is reproduced below]):

   “The following was agreed,

   1. MA [Associate Professor Abolhasan] will support a request of extension to GRS, and GRS will grant an extension (Aki) [(Ms Plume)]. VK [Mr Kitoko] will need to submit extension of candidature with supporting documents.

   2. MA [Associate Professor Abolhasan] advised VK [Mr Kitoko] to see Hung [Professor Nguyen] regularly. Hung [Professor Nguyen] agreed to see Vangu [Mr Kitoko] whenever he has something substantial to show, approx. every 3 or 4 weeks in Mehan’s [Associate Professor Abolhasan’s] presence.

   3. Vangu [Mr Kitoko] to source equipment this week and purchase it to the value of $2,000.

   4. Vangu [Mr Kitoko] to conduct experiments.

   5. Vangu [Mr Kitoko] to write up the results of these experiments in his thesis, with details of how it was done, revising chapters with data, showing the analysis.

   6. PA [Ms Agius] to supply names of potential proof readers.

   7. The above to be completed by the end of June 2015. No further extension will be possible.

   8. Vangu [Mr Kitoko] to collect his thesis from the Graduate Research School on 19^th February 2015. Vangu [Mr Kitoko] exchanged his Mobile phone number with Aki [Ms Plume] for this purpose.”

7. I note that there was an arrangement to meet as necessary “whenever [Mr Kitoko] has something substantial to show, approx. every 3 or 4 weeks in [Associate Professor Abolhasan’s] presence” (see also [30] of Professor Nguyen’s affidavit of 25 July 2016). I also note it was clear that in relation to the steps outlined above, an end date of Mr Kitoko’s candidature of June 2015 was imposed, with no prospect of further extension.

8. In relation to the $500 payment to Mr Kitoko in June 2015 by UTS, Mr Kitoko submitted that this was “substantial evidence” that the Dean of GRS “approved” the completion of his Ph.D., presumably at that time ([22] of Mr Kitoko’s first written submissions).

9. I do not agree with Mr Kitoko’s submission. First, there is no evidence that the Dean of the GRS ever gave any such approval. Mr Kitoko’s argument is at best, dependent on evidence from which he seeks to draw an inference that is not reasonably available on that evidence. If the Dean of the GRS had given such “approval”, Mr Kitoko has not explained why such approval can only be evidenced by the payment of this sum of money, instead of some direct communication to that effect from the Dean of the GRS.

10. Second, Mr Kitoko’s cross-examination of Ms Plume sought to make out his contention that the approval of a payment of $500 for proofreading of his thesis was evidence that the Dean had “approved” the completion of his Ph.D.

11. Ms Plume’s evidence was that she had no involvement in this type of payment. This was, on her evidence, the province of another administrative team at the GRS. There is nothing before the Court to indicate that Ms Plume’s evidence in this regard should not be accepted.

12. On the evidence before the Court, therefore, what remains is that UTS did make a payment of $500 for the proofreading of Mr Kitoko’s thesis. This, of itself, does not establish the proposition for which Mr Kitoko now contends. The thesis, even in its otherwise deficient form (in the view of Professor Nguyen and Associate Professor Abolhasan), may indeed have been proofread. In any event, this does not indicate, let alone establish, that the thesis had been approved, or that UTS, or anyone at UTS, acted in a discriminatory fashion because of Mr Kitoko’s race or putative disability.

13. Third, as set out above, Mr Kitoko submitted that the Dean of the GRS, by the payment of $500 for the proofreading of his thesis, had “approved” his thesis (see [10] of Mr Kitoko’s first written submissions). This is inconsistent with the evidence before the Court that his academic performance had been unsatisfactory.  Mr Kitoko did not dispute before the Court that such progress ratings had been given to his work. It is difficult to see how the Dean would have “approved” the completion of his Ph.D. thesis, if at the same time, Mr Kitoko’s academic performance had been rated as unsatisfactory.

14. Fourth, this argument ignores evidence before the Court of other events that occurred between February 2015 and May 2015. These events (see below) include a letter dated 19 May 2015 sent on behalf of the Dean of the GRS to Mr Kitoko, advising that his enrolment in the Ph.D. program had been discontinued (see [41] of Professor Nguyen’s affidavit of 25 July 2016 and exhibit “HN-1” at pages 179 - 184).

15. These events also include the following. One, on 19 February 2015 Mr Kitoko did request the purchase of particular devices (“EPIC Demo Kit” and “two non-contact sensors”). UTS purchased this equipment. Mr Kitoko took possession of the equipment on 4 March 2015 (see [31] of Professor Nguyen’s affidavit of 25 July 2016 and exhibit “HN-1” at pages 155 - 162).

16. Two, on 13 March 2015 Mr Kitoko applied to the Dean of the GRS for a further extension of his candidature (see [32] of Professor Nguyen’s affidavit of 26 July 2016 and exhibit “HN-1” at page 163).

17. Three, on 16 March 2015 Mr Kitoko complained by email to Professor Nguyen and Associate Professor Abolhasan about the equipment that had been purchased for him. Specifically, he claimed that the “[the device] is for basic EEG experimental studies and does not meet the expectation of an advanced research study like [his] PHD” (see [33] of Professor Nguyen’s affidavit of 25 July 2016 and exhibit “HN-1” at pages 164 - 165).

18. There is no evidence before the Court that UTS failed to purchase and provide what Mr Kitoko had requested consistent with what had been previously agreed.

19. In his submissions, Mr Kitoko seeks to draw on events which, on his own submission, occurred over two years earlier, and certainly pre-date February 2015, to argue that Professor Nguyen was the cause of his unsatisfactory academic performance and/or the reports of his unsatisfactory academic performance. Given the events of 2015 set out in this judgment, and in all the relevant circumstances, this remains only as speculation on Mr Kitoko’s part.

20. In any event, Mr Kitoko’s submission is that in November 2012 Professor Nguyen had proposed that Mr Kitoko use “an incompatible Non-contact electrode interface the ‘EPIC sensor’” for his Ph.D. research ([12] of Mr Kitoko’s further written submissions).

21. Mr Kitoko submits that what he requested was based on the advice of Professor Nguyen. Professor Nguyen’s evidence was that, consistent with his responsibility for doing the necessary work to develop and complete his thesis, it was for Mr Kitoko to choose and develop the equipment he required to conduct his research.

22. Mr Kitoko also submitted that the existence of the device “in the hands” of Mr Kitoko, meant that the Court should accept his evidence ([22] of Mr Kitoko’s further written submissions).

23. At best, Mr Kitoko’s contention appears to be that the device is “tangible evidence” that Professor Nguyen denied Mr Kitoko the opportunity to access advanced technology which presumably would have assisted his Ph.D. research ([11] of Mr Kitoko’s further written submissions).

24. The difficulty (amongst many others) for Mr Kitoko, is that he appears to ignore the fact that he had been asked by Associate Professor Abolhasan to provide, in writing, a description of the equipment he needed to complete his research. He did so in the circumstances already referred to above. If the device proved to be inadequate, as now contended by Mr Kitoko, then that, in the circumstances, was as a result of his own actions and elections, not that of UTS, Professor Nguyen or anyone else employed there.

25. However, even if the inadequacy of the device for Mr Kitoko’s purposes was a result of the conduct of UTS (which on the evidence, cannot be said to be the case), again, no link is established to the claim of racial or disability discrimination.

26. In regard to Mr Kitoko’s contention that he was advised by Professor Nguyen to request the particular device, I accept Mr Kitoko’s submission that as a student he felt he should, to some extent, be guided by a senior academic such as Professor Nguyen. There is however, a difference between accepting advice and guidance, and accepting personal responsibility for, and doing the planning, analysis, assessment and strategic thinking and “work” for a Ph.D. It was not Professor Nguyen who was the Ph.D. candidate. It was not Professor Nguyen’s thesis. Ultimately, I can take judicial note that the creative thinking, arguments, strategies, experiments and conclusions of a Ph.D. thesis must be those of the candidate, and not the candidate’s supervisor.

27. Mr Kitoko’s stated reliance on Professor Nguyen to make critical decisions for him in the development of his thesis only serves to underscore the proposition that he was not achieving satisfactory academic progress, as had been assessed by both Professor Nguyen and Associate Professor Abolhasan.

28. Further, Mr Kitoko in his submissions, did not explain his delay in asking for the purchase of the relevant equipment (“the device”). If Professor Nguyen, on Mr Kitoko’s evidence, advised him that he needed this equipment in November 2012, as at February 2015, Mr Kitoko had taken no action to procure the purchase of this equipment.

29. Even at that time, over two years later, Mr Kitoko had to be prompted to make the request. This unexplained lack of action also reflects adversely on his academic progress and supports the assessments made by Professor Nguyen and Associate Professor Abolhasan.

30. Four, the evidence before the Court from Professor Nguyen is that efforts were made between the middle of March to early April 2015 to organise a meeting with Mr Kitoko to discuss the claimed problem with the device. The evidence is that Mr Kitoko could not attend the meeting scheduled for 24 March 2014. Attempts to reschedule were unsuccessful (see [35] of Professor Nguyen’s affidavit of 25 July 2016).

31. It is to be noted that by this time Mr Kitoko had been put on notice that his academic progress was unsatisfactory and that his candidature had already exceeded the “advisable” time for a student to complete the thesis (that being four years).

32. Mr Kitoko’s submissions made no reasonable attempt to explain his inability to attend these meetings to allow him to raise, at the relevant times, the problem he said he had with the device.

33. Five, on 7 April 2015 Mr Kitoko was advised that his Ph.D. candidature was “under review”. He was put on notice that his candidature may be discontinued because of the two unsatisfactory progress reports. He was also put on notice that the Dean of the GRS had not approved his request for a further extension ([36] of Professor Nguyen’s affidavit of 25 July 2016 and exhibit “HN-1” at pages

    
    

    171 – 172).

34. Although Mr Kitoko was advised to arrange a meeting with Associate Professor Abolhasan to discuss a progress plan, he instead resubmitted his thesis to the GRS on 15 April 2015. Professor Nguyen was put on notice of this by email ([37] of Professor Nguyen’s affidavit of 25 July 2016 and exhibit “HN-1” at pages 164 – 165).

35. On 27 April 2015 a further meeting was held between Mr Kitoko, Professor Nguyen and Associate Professor Abolhasan, Ms Lawah (the director of GRS) and an administration officer (see Professor Nguyen’s affidavit of 27 July 2016 and exhibit “HN-1” at pages 173 – 175).

36. On the evidence, Mr Kitoko was put on notice of certain concerns with his thesis, as they existed at that time. These included the ethical concerns with his research, being the absence of evidence of experimental procedures and written consent from the participants in the experiments.

37. Professor Nguyen specifically raised the concern that there was no explanation, or even description, in Mr Kitoko’s thesis as to how the data in it had been obtained.

38. At this point, Mr Kitoko advised that he had not used the device which had been recently purchased for him. Rather, he had “adapted” and used equipment previously available. He further advised that he could not subsequently obtain the necessary data because that equipment was no longer available.

39. Ultimately, Mr Kitoko agreed at the meeting of 27 April 2015, to provide the “raw data” still available to him. The purpose of this was to support the results of his experiments. Further, Mr Kitoko agreed to provide a description of the procedures he had employed in his experiments so as to provide some basis for the “conclusions” set out in the thesis. He agreed to do this by 4 May 2015 (see [38] of Professor Nguyen’s affidavit of 25 July 2016 and exhibit “HN1” at pages

    
    

    173 - 175).

40. It appears that Mr Kitoko had not provided any of this material by 4 May 2015. A further meeting occurred on that date between Mr Kitoko, Professor Nguyen, Associate Professor Abolhasan and Ms Plume.

41. At the meeting on 4 May 2015, Mr Kitoko complained that he had only recently (in the last week) realised that his computer had been “upgraded” by the UTS Information Technology (“IT”) department and that all relevant data had been “wiped” (“the computer upgrade matter”). Mr Kitoko was asked to provide evidence of this data loss ([39] of Professor Nguyen’s affidavit and exhibit “HN-1” at pages 176 – 177 and I note again that the minutes contained there, in context, appear to be incorrectly dated).

42. The relevant IT manager did subsequently confirm that Mr Kitoko’s computer had been “re-imaged” on 9 March 2015. The advice was that Mr Kitoko had only recently requested restoration of his data, and given the passage of time, this could no longer be done ([40] of Professor Nguyen’s affidavit of 25 July 2016 and exhibit “HN-1” at page 178).

43. It is of note that in his written submissions to the Court, Mr Kitoko did not press the computer upgrade matter. It does not appear to feature as an element in the claimed discrimination against him. His claims of discrimination, for the large part, are said by Mr Kitoko to arise from the conduct of, in particular Professor Nguyen and Associate Professor Abolhasan. That is because of the “collusion” between Professor Nguyen, Mirvac, and others in the “Mirvac network”.

44. In relation to the computer upgrade matter, it is important to note the relevant time scale, and when Mr Kitoko said he became aware of this problem.

45. On the evidence, the “re-imaging” occurred on 9 March 2015. Mr Kitoko was on notice as from at least October 2014 about the absence of data in his research and concerns about his experimental methodology. This was again confirmed in December 2014 by Professor Nguyen. This predated the “re-imaging” conducted on 9 March 2015.

46. Specifically, on Mr Kitoko’s own evidence, he became aware of the “re-imaging” in the week before 4 May 2015. There is no evidence from Mr Kitoko now, nor even any explanation proffered by his submissions, to explain why it took him from 9 March 2015, to late April 2015, to notice that data on his computer that was critical to his research had been “wiped”.

47. In the absence of anything to the contrary, the evidence of Professor Nguyen that he told Mr Kitoko at the meeting on 4 May 2015, that all students were responsible for keeping their own data and records, must be accepted. Mr Kitoko’s failure to accept responsibility in relation to the computer “upgrade” matter and alleged data loss between 9 March 2015 and late April 2015, again reinforces the findings that he had not demonstrated satisfactory academic progress. Further, it is of note that the UTS IT department had put all students on notice of the scheduled “upgrade”.

48. On 14 May 2015, Associate Professor Abolhasan recommended to the Dean of the GRS that Mr Kitoko’s candidature be discontinued ([17] of Professor Albohasan’s affidavit of 22 July 2016 and exhibit “MA-1” at pages 40 – 43). Four reasons were advanced. One, Mr Kitoko had exceeded the maximum time for such candidature by one and a half years. Two, he had received two successive unsatisfactory “Reviews of Progress”. Three, Mr Kitoko had produced a thesis that was not suitable for examination. Four, Mr Kitoko had failed to produce necessary information to allow the thesis to be examined, despite opportunity to do so, and had not provided a sufficient reason for this failure.

49. On the evidence now before the Court, all four reasons were reasonably available to Associate Professor Abolhasan and were probative of the information before him.

50. On 19 May 2015 the Dean of the GRS decided to discontinue Mr Kitoko’s enrolment. Mr Kitoko was notified by a letter of that date ([6] of Mr Kitoko’s affidavit of 6 July 2016 and annexure “L”). The decision was said to have been taken following the recommendation from Associate Professor Abolhasan and with reference to the relevant UTS rule.

51. Mr Kitoko appealed this decision on 5 June 2015 ([42] of Professor Nguyen’s affidavit of 25 July 2016). On 3 August 2015 the appeal was dismissed by the relevant appeals committee of the UTS academic board (defined earlier as “the committee”) ([6] of Mr Kitoko’s affidavit of 6 July 2016 and annexure “M”).

52. Mr Kitoko submitted that the committee’s decision was procured by Professor Nguyen’s intervention as follows ([15] of Mr Kitoko’s further written submissions):

    “Further, the [a]pplicant has evidenced that on 23 June 2015, the Dean of GRS has re-imposed the discontinuance of the [a]pplicant’s PH.D study, twenty days after the approval of the [a]pplicant (sic) PH.D thesis and six days after debited the said amount. On 07 August 2015, Prof. Nguyen has imposed the Appeal Committee of GRS to confirm the discontinuance.”

53. There is no evidence before the Court that Professor Nguyen played any role in the appeals process. While it may generally be said to be reasonable that a former academic supervisor may take some interest in the appeals process involving a former student, there is no evidence before the Court to provide a probative basis for such an inference to be drawn in the current case.

54. I also note that Mr Kitoko submitted that the discontinuation of his candidature coincided with the verdict in the proceedings in the District Court of NSW between Mr Kitoko and Mirvac (see [19](iv) of Mr Kitoko’s first written submissions and above at [13]). That may well be the case. To the extent that Mr Kitoko seeks to contend that the coincidence of these dates was part of the “collusion” involving UTS and the “Mirvac network”, for the reasons set out above in this judgment and see below at [194] – [203], I reject that contention.

1. The events described above in some detail give rise to the following findings. One, Mr Kitoko was, at the relevant time, put on notice of the deficiency in his academic progress. Two, he was given a fair and reasonable opportunity to address these deficiencies. Three, he has not on the evidence, provided any satisfactory or adequate reason for failing to do so. Four, there is no evidence to suggest, and nor does Mr Kitoko assert, that there was any failure by UTS to follow its own rules and proper processes required by those rules.

2. As set out above, and as against this background, in essence, the entirety of Mr Kitoko’s case is that Professor Nguyen was responsible for, and acted to cause, the discontinuance of his Ph.D. candidature. The assertion is that Mr Nguyen was motivated to do so, and engaged in various conduct to that end, because he racially discriminated against Mr Kitoko (because he was a “black man” or a “black African”), and did so in the knowledge that Mr Kitoko had suffered injuries, and had a disability, as a result of an accident in 2010.

3. In short, Mr Kitoko’s view of relevant events, and his belief that Professor Nguyen engaged in some “collusion” with various parties, is simply an expression of Mr Kitoko’s opinion and is not supported by the evidence before the Court. There is nothing in the evidence to support Mr Kitoko’s belief that Professor Nguyen, and for that matter, anyone else at UTS, acted adversely to Mr Kitoko’s interests because, or for reason of, his being a “black African” or for any putative disability.

4. It may be unpalatable for Mr Kitoko to accept that on the evidence before the Court, the reason for the discontinuance of his Ph.D. candidature, endorsed on appeal by the committee, was his own failure to achieve satisfactory academic progress and the continuing failure to address deficiencies in his thesis when these were brought to his attention.

5. It must also be said that parts of Mr Kitoko’s submissions go beyond being characterised as simply lacking any probative evidence, to being described as “fanciful”. These were matters in which, in particular, he sought to pursue in cross examination of Professor Nguyen.

6. As set out above, Mr Kitoko believes that Professor Nguyen was part of the Mirvac network. Mr Kitoko’s proposition was that Professor Nguyen’s son was employed by the CPH as a “reward” for Professor Nguyen‘s “collusion” with Mirvac, in ensuring the cessation of Mr Kitoko’s Ph.D. candidature.

7. The “scheme” envisaged by Mr Kitoko is that Dr Lord, who was employed at the CPH, and had previously treated Mr  Kitoko, and who had also “discriminated” against Mr Kitoko because he was a “black African”, was also a part of the “Mirvac network”, and this meant that somehow Professor Nguyen’s son secured employment at the hospital as a result of this “scheme”.

8. Even if this entire proposition had some rational basis (which it does not), on the evidence before the Court, it still does not establish, let alone indicate, that Professor Nguyen discriminated against Mr Kitoko because he was a “black African”. Even within its own “logic”, Mr Kitoko’s asserted “scheme” proposes that Professor Nguyen was motivated not by racial reasons, but to obtain a “reward” for his son.

9. The fanciful nature of Mr Kitoko’s view that he was the subject of “collusion” by the “Mirvac network”, can also be seen in a series of questions directed to Professor Nguyen and concerning closed-circuit television (“CCTV”) footage of the accident.

10. The proposition put in this line of questioning was that Professor Nguyen “colluded” with another academic at UTS, and yet another academic from another institution (Associate Professor Mark Pickering (from the University of New South Wales (“UNSW”))), to falsify CCTV footage.

11. There is nothing before the Court to doubt Professor Nguyen’s evidence in rejecting Mr Kitoko’s contentions in this regard. There is no evidence whatsoever to provide any basis for Mr Kitoko’s contention. But again, even if there had been some evidence in this regard (which there is not), there is no link to the claims of discrimination on the basis of race or disability.

12. Mr Kitoko also submitted that Professor Nguyen (together with Mirvac) used a mobile phone to “track” Mr Kitoko while he was on campus at UTS, to place a female “colleague” from UTS “close” to Mr Kitoko, so that Mirvac could film Mr Kitoko, for the purposes of a future sexual harassment claim (see [19](iii) of Mr Kitoko’s first written submissions).

13. This allegation was denied by Professor Nguyen in cross-examination. To the extent that Mr Kitoko seeks to submit that this is part of the “collusion” between Professor Nguyen and the “Mirvac network”, for the reasons set out above, I reject that allegation.  In the absence of any evidence before the Court to corroborate Mr Kitoko’s claim in this regard, I find that it did not occur.

14. In all therefore, I find that the various events  including the accident, the various meetings between Mr Kitoko and academics at UTS, and the discontinuation of Mr Kitoko’s Ph.D. candidature as set out above

    
    

    (at [12] – [51]), did occur. The view I have taken of the evidence of these events, and the findings made, are also as set out

    
    

    above (at [68] – [201]).

15. There was no real dispute from Mr Kitoko that each of the events occurred. The difference between the parties is that Mr Kitoko says that the conduct of, in particular, Professor Nguyen, and others associated with the “Mirvac network”, was done for reason of his being a “black African” and because of his (unspecified) disability. UTS says that the evidence does not support this proposition, but reveals that the cessation of Mr Kitoko’s Ph.D. candidature was for reason of his unsatisfactory academic progress. For the reasons set out above, I agree with UTS.

Relevant Law

1. In his application to this Court, Mr Kitoko claims that UTS has breached ss.9, 11, 17, 18C and 27 of the RDA, and ss.22(2) and 42 of the DDA.

2. Section 9(1) of the RDA at the relevant time provided that:

   “9 Racial Discrimination to be unlawful

   It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.”

3. Section 11 of the RDA at the relevant time provided that:

   “11  Access to places and facilities

   It is unlawful for a person:

   (a)  to refuse to allow another person access to or use of any place or vehicle that members of the public are, or a section of the public is, entitled or allowed to enter or use, or to refuse to allow another person access to or use of any such place or vehicle except on less favourable terms or conditions than those upon or subject to which he or she would otherwise allow access to or use of that place or vehicle;

   (b)  to refuse to allow another person use of any facilities in any such place or vehicle that are available to members of the public or to a section of the public, or to refuse to allow another person use of any such facilities except on less favourable terms or conditions than those upon or subject to which he or she would otherwise allow use of those facilities; or

   (c)  to require another person to leave or cease to use any such place or vehicle or any such facilities;

   by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person.”

4. Section 17 of the RDA at the relevant time provided that:

   “17 Unlawful to incite doing of unlawful acts

   It is unlawful for a person:

   (a)  to incite the doing of an act that is unlawful by reason of a provision of this Part; or

   (b) to assist or promote whether by financial assistance or otherwise the doing of such an act.”

5. Section 18C of the RDA at the relevant time provided that:

   “18C  Offensive behaviour because of race, colour or national or ethnic origin

   (1)  It is unlawful for a person to do an act, otherwise than in private, if:

   (a)  the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

   (b)  the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

   Note: Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.

   (2)  For the purposes of subsection (1), an act is taken not to be done in private if it:

   (a)  causes words, sounds, images or writing to be communicated to the public; or

   (b)  is done in a public place; or

   (c)  is done in the sight or hearing of people who are in a public place.

   (3)  In this section:

   ‘public place’ includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.”

6. Section 27(2) of the RDA at the relevant time provided that:

   “27 Offences relating to administration of Act

   …

   (2) A person shall not:

   (a) refuse to employ another person; or

   (b) dismiss, or threaten to dismiss, another person from the other person’s employment; or

   (c) prejudice, or threaten to prejudice, another person in the other person’s employment; or

   (d) intimidate or coerce, or impose any pecuniary or other penalty upon, another person;

   by reason that the other person:

   (e) has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or

   (f) has furnished, or proposes to furnish, any information or documents to a person exercising or performing any powers or functions under this Act or the Australian Human Rights Commission Act 1986; or

   (g) has attended, or proposes to attend, a conference held under this Act or the Australian Human Rights Commission Act 1986…”

7. Section 22(2) of the DDA at the relevant time provided that:

   “22 Education

   …

   (2)  It is unlawful for an educational authority to discriminate against a student on the ground of the student’s disability:

   (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

   (c) by subjecting the student to any other detriment.”

8. Section 42 of the DDA at the relevant time provided that:

   “42 Victimisation

   (1) it is an offence for a person to commit an act of victimisation against another person.

   Penalty: Imprisonment for 6 months

   (2)  For the purposes of subsection (1), a person is taken to commit an act of victimisation against another person if the
   first‑mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:

   (a) has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or

   (b) has brought, or proposes to bring, proceedings under this Act or the Australian Human Rights Commission Act 1986 against any person; or

   (c) has given, or proposes to give, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Australian Human Rights Commission Act 1986; or

   (d) has attended, or proposes to attend, a conference held under this Act or the Australian Human Rights Commission Act 1986; or

   (e) has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Australian Human Rights Commission Act 1986; or

   (f) has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Australian Human Rights Commission Act 1986; or

   (g)  has made an allegation that a person has done an act that is unlawful by reason of a provision of this Part;

   or on the ground that the first‑mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g) (inclusive).”

9. Turning now to each of the specific alleged breaches of the RDA and the DDA.

10. First, Mr Kitoko alleged a breach of s.9 of the RDA by UTS. There are a number of specific elements to Mr Kitoko’s submission that the relevant evidence shows, that steps taken by UTS were taken to “punish” or disadvantage Mr Kitoko.

11. These are that the various actions taken by Professor Nguyen and UTS were taken to “punish” or disadvantage Mr Kitoko because he was a “black African”. As set out above, the evidence before the Court does not indicate, let alone substantiate, this to be the case. Mr Kitoko’s “belief” in this regard is not evidence.

12. Further, Mr Kitoko submitted that Professor Nguyen (and others at UTS), collaborated with Mirvac, Mirvac’s lawyers and with Dr Lord and others at the CPH, to discriminate, victimise and punish Mr Kitoko for “being a black African”, and for suing Mirvac for compensation in personal injury proceedings.

13. The following stands in answer. I accept Professor Nguyen’s evidence that he was not aware of these personal injury proceedings at the times relevant to when action was taken in relation to Mr Kitoko’s academic studies. Rather, Mr Nguyen had read about the proceedings in a newspaper article in August 2015. There is no other evidence that would cause me to not accept Professor Nguyen’s evidence. Mr Kitoko’s evidence in this regard in the circumstances presented, and set out above, is no more than his “belief” that Professor Nguyen acted for the reasons he asserts.

14. Similarly, for the reasons set out above, I accept Professor Nguyen’s evidence that he had had no relevant contact with Dr Lord, or any other person Mr Kitoko says was involved in the alleged “collusion” or “conspiracy” regarding CPH.

15. The state of the evidence before the Court is such that it cannot be said there is any substance to the claim of a “Mirvac network” or “collusion”. The breadth of this claim, the involvement of such a large number of parties, and institutions, that otherwise have no relevant established links, supports the view that the claim has no inherent credibility.

16. The evidence of Professor Nguyen, Associate Professor Abolhasan and Ms Plume, supported by various relevant documentation, is that the cause of Mr Kitoko’s discontinuance as a Ph.D. candidate was his own inability to achieve satisfactory progress, despite the numerous opportunities given to him.

17. I accept, and agree with UTS, that on the facts as found, there is no relevant act done by UTS, or its employees, which can be said to be based on “race, colour, descent or national or ethnic origin” (s.9(1) of the RDA). Without such circumstances, the allegation pursuant to s.9 of the RDA cannot be made out.

18. Further, and in this light, even if the discontinuance of Mr Kitoko’s Ph.D. candidature could be seen as an “exclusion” or “restriction” (s.9(1) of the RDA), it would not be, on the evidence, an “exclusion” or “restriction” based on “race, colour, descent or national or ethnic origin”. I agree with UTS that on what is before the Court, the same action (that is, the discontinuance of Mr Kitoko’s Ph.D. candidature), would have resulted for any student at UTS with the same record of unsatisfactory academic progress as Mr Kitoko exhibited.

19. In his oral evidence, Mr Kitoko stated that he had seen other students at UTS being treated differently. He made general reference to students of Chinese, Vietnamese, Indian, and Bangladeshi backgrounds.

20. In his submissions, Mr Kitoko states that as a “black African” he is a member of a minority group in Australia with “minimal impact in the Australian community” ([25] of Mr Kitoko’s further written submissions). Even if that is the case, of itself, that does not establish a breach of s.9 of the RDA.

21. Mr Kitoko’s submissions here suffer from the same deficiency as set out above. That is, the assertion that race, colour, descent or national or ethnic origin, were the “driving force”, or the motivation for Professor Nguyen’s actions, lacks evidentiary substance ([27] of Mr Kitoko’s further written submissions). Mr Kitoko says his “assertion is substantial and should be accepted” ([25] of Mr Kitoko’s further written submissions). That submission must be rejected. Substance does not exist simply because Mr Kitoko uses that description. He has failed to point to any evidence such as to make the proposition he contends for, one of “substance”.

22. Even further, Mr Kitoko’s assertions in relation to these “other students” were, as UTS correctly submitted, at such a high level of generality that they would not assist in establishing any argument as to a “comparator”, if that was Mr Kitoko’s intention in making that submission ([14] of UTS’ further written submissions).

23. Second, Mr Kitoko alleges a breach of s.11 of the RDA. At best, from Mr Kitoko’s written submissions, it appears there were two elements to his complaint.

24. One, Professor Nguyen restricted Mr Kitoko’s access to the CHT laboratory. Two, that he was denied access to “advanced experimental equipment” ([23] of Mr Kitoko’s further written submissions).

25. At best, on the evidence before the Court, the facility to which Mr Kitoko refers was used for the purposes of doctoral studies and research purposes. On the evidence, it is reasonable to infer, contrary to Mr Kitoko’s assertion, that the facility was accessible only to staff and students of UTS. Once Mr Kitoko’s Ph.D. candidature ceased, he did not meet that requirement. If however, the claim by Mr Kitoko is that his access was restricted to the CHT laboratory before his candidature was discontinued, then there is no credible evidence before the Court to indicate that this would have been done because Mr Kitoko was a “black African”. The evidence before the Court does not support Mr Kitoko’s submission in this regard.

26. As to access to advanced equipment outside of, or beyond, what was available at the CHT laboratory, as set out above, Mr Kitoko was asked to specify what equipment he would need to conclude his research, and UTS purchased and provided what he had requested. As stated above, ultimately, Mr Kitoko’s inability to satisfactorily complete the relevant tasks was as a result of his own lack of adequate capacity, not because of the actions of UTS. No breach of s.11 of the RDA arises.

27. Third, Mr Kitoko’s assertion of a breach of s.17 of the RDA, given what is set out above, cannot be accepted. The evidence before the Court is such that no “unlawful act” for reason of a provision of Part II of the RDA has been made out. Further there is no evidence before the Court to say that any “person” has “incited”, “assisted” or “promoted” the doing of any “unlawful act” for the purposes of the RDA. No breach of s.17 of the RDA arises.

28. Fourth, Mr Kitoko also relies on s.18C of the RDA. He submits that some of the impugned “dealings” (acts) occurred within the UTS premises, but in the presence of the public, and others, while other “dealings” occurred outside the relevant buildings, also in the presence of the public.

29. The evidence before the Court does not support Mr Kitoko’s contention. None of the acts relevant to Mr Kitoko’s academic study and eventual discontinuance of his Ph.D. candidature, can be said to have been done “otherwise than in private”. In that light, none of the acts were unlawful such that s.18C of the RDA would be made out. I agree with UTS that the relevant “dealings” between UTS and Mr Kitoko occurred in “private” communications, either at meetings or by way of emails. Further, the recommendations to discontinue Mr Kitoko’s enrolment and the decision to cease his Ph.D. candidature, all occurred in private (s.18C(1)(a) of the RDA).

1. Further, as set out above, the evidence does not support the assertion that the impugned acts were done because of Mr Kitoko’s “race, colour or national or ethnic origin” (s.18C(1)(b) of the RDA).

2. In that light, on the evidence before the Court, I cannot see that there is any relevant act that can be said to be “reasonably likely” to “offend, insult, humiliate or intimidate” another person or a group of people (s.18C(1)(a) of the RDA). No breach of s.18C of the RDA arises.

3. Fifth, Mr Kitoko also seeks to invoke s.27 the RDA to argue that the assessments of his unsatisfactory academic performance, and the subsequent discontinuation of his Ph.D. candidature, was such as to “impose” a “penalty” on him (s.27(2)(d) of the RDA). He submits that this was done “by reason that” he had raised the “issue of racial discrimination” against Professor Nguyen, and sought to take a relevant step under the RDA or AHRC Act.

4. The difficulty for Mr Kitoko now, in making this submission, is that there is no evidence before the Court to even indicate that any of the actions by persons on behalf of UTS were taken “by reason that” Mr Kitoko had taken, or proposed to take, any relevant action under the RDA or the AHRC Act.

5. In his further written submissions (at [29]) Mr Kitoko submitted that the meeting of the committee on 3 August 2015, where it was decided that the discontinuation of Mr Kitoko’s candidature would stand, “did not occur in the way as described” in the letter from the Dean of the GRS dated 7 August 2015. Further, that the minutes of that meeting [which Mr Kitoko says are dated 10 August 2015, but in context, must refer to the meeting of 3 August 2015] are a “falsification”. Those minutes are not in evidence before the Court. There is nothing on the evidence to support Mr Kitoko’s submissions in this regard.

6. My finding, as set above, is that the discontinuation of Mr Kitoko’s Ph.D. candidature occurred due to his unsatisfactory academic progress. No breach of s.27 of the RDA arises.

7. Sixth, Mr Kitoko also seeks to rely on s.22 of the DDA. It must be said that Mr Kitoko’s submissions on this point are particularly unclear. At least, or at best, it appears his argument is that during his enrolment at UTS, he was denied access to UTS services and facilities at a time when he suffered a disability (being the injuries he suffered as a result of the accident).

8. There is no dispute, as Mr Kitoko submits, that UTS is an “educational authority” (as defined at s.4 of the DDA), and that he was enrolled as a Ph.D. student from January 2010 to August 2015 (noting the relevant decisions to discontinue Mr Kitoko’s candidature in the first half of 2015).

9. Mr Kitoko seeks to make out a breach of s.22 of the DDA, in particular s.22(2) of the DDA, by relying on the following assertions.

10. One, that at the meeting on 18 February 2015, Professor Nguyen threatened to physically attack Mr Kitoko. Two, Professor Nguyen colluded with Dr Ahmed Al-Ani (Senior Lecturer at the CHT at UTS) and Associate Professor Pickering (from UNSW) to “falsify” CCTV footage of the accident ([30] of Mr Kitoko’s further written submissions). Three, Professor Nguyen was rewarded by Mirvac’s network for his actions, given that his son was offered a position at the CPH where Dr Lord was working. Four, that Professor Nguyen was aware that Mr Kitoko had suffered injury and had a disability for the purposes of the DDA. Further, that Professor Nguyen “was unwilling for” Mr Kitoko “to conduct advanced experiments because of this disability state” ([30] of Mr Kitoko’s further written submissions).

11. My finding in relation to the alleged threat made by Professor Nguyen (that such a threat did not occur), is set out above at [129] – [131].

12. As to the claim involving what Mr Kitoko describes as the “Mirvac network”, I have already set out my findings above, that the evidence does not support any of these allegations.

13. Professor Nguyen’s evidence is that he did not know that Mr Kitoko had suffered any injury, or had any disability, until he saw references in a newspaper article in August 2015 (see [47] of Professor Nguyen’s affidavit of 25 July 2016 and exhibit “HN-1” at pages 244 - 255). That is, after the impugned events in which Mr Kitoko alleges Mr Nguyen was involved.

14. There is no other reliable evidence before the Court to cast doubt, let alone contradict Professor Nguyen’s evidence in this regard. Mr Kitoko made these assertions, including in his affidavit, without any other corroborative evidence. They rise no higher than a statement of his belief of Professor Nguyen’s state of mind and knowledge. On balance, Professor Nguyen’s evidence must be preferred.

15. Nor is the evidence before the Court such as to support Mr Kitoko’s contention that Professor Nguyen was “unwilling” for Mr Kitoko to conduct advanced experiments. On the evidence, Mr Kitoko was given a number of opportunities to complete his research and his thesis. The fact that he was unable to do so within the extended time provided to him was, on the evidence, a consequence of his own academic inadequacy, not Professor Nguyen’s claimed “unwillingness”. No breach of s.22 of the DDA is made out.

16. Seventh, Mr Kitoko also asserts a breach of s.42 of the DDA. His argument appears to be as follows. The reason Professor Nguyen physically “threatened” him (at the meeting on 18 February 2015) was that Mr Kitoko had raised the “issue of discrimination from the supervisor”, (presumably Professor Nguyen), “to the District Court” (see [31] of Mr Kitoko’s further written submissions). In essence, although not expressed as such, the allegation is that Professor Nguyen committed an act of “victimisation” against Mr Kitoko because he had made a complaint of discrimination against Professor Nguyen to the District Court.

17. No breach of s.42 of the DDA is made out. As is clear, given the wording of s.42 of the DDA, the offence of victimisation pursuant to that section can only arise, relevantly, if Mr Kitoko had made, or proposed to make, a complaint under the DDA, or the AHRC Act, at the relevant time.

18. There is no evidence before the Court that Mr Kitoko had made any such complaint about Professor Nguyen to the AHRC, or pursuant to the DDA up to August 2015. Although he did make a complaint to the Commission on 11 February 2016, this was approximately six months after his Ph.D. candidature ended ([45] of Professor Nguyen’s affidavit of 25 July 2016 and exhibit “HN-1” at pages 195 – 242). Therefore, it could not have been a part of the cause of the discontinuance of Mr Kitoko’s Ph.D. candidature. Nor is there any evidence to indicate that Mr Kitoko had proposed to make such a complaint in circumstances that led Professor Nguyen to commit the offence of “victimisation” because of any proposed complaint. That is sufficient to dispose of this aspect of Mr Kitoko’s application.

Conclusion

1. Mr Kitoko has not made out any breach of the RDA or the DDA. It is appropriate to dismiss the application. I will make that order.

I certify that the preceding two hundred and fifty-one (251) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  28 March 2018