Kubay v Royal Australian and New Zealand College of Ophthalmologists
[2013] NSWADT 230
•17 October 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Kubay v Royal Australian and New Zealand College of Ophthalmologists [2013] NSWADT 230 Hearing dates: 10 September 2013 Decision date: 17 October 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave is refused for the applicant's complaint of race discrimination against the Royal Australian and New Zealand College of Ophthalmologists to proceed.
Catchwords: ANTI-DISCRIMINATION - leave - complaint of race discrimination declined as lacking in substance - whether correct respondent named - Legislation Cited: Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1997Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Category: Interlocutory applications Parties: Olena Kubay (Applicant)
Royal Australian and New Zealand College of Ophthalmologists (Respondent)Representation: Counsel
D Mahendra (Respondent)
O Kubay (Applicant in person)
Tress Cocks Lawyers (Respondent)
File Number(s): 131070
reasons for decision
Introduction
Dr Kubay, a Ukrainian trained ophthalmologist, has applied twice for recognition as a Specialist Ophthalmologist in Australia. On both occasions her experience and training were assessed to be "not comparable" to Australian standards, and no qualification was conferred. This complaint concerns the second of her applications submitted in March 2011. When that application was refused Dr Kubay complained to the President of the Anti-Discrimination Board that she had been discriminated against on the ground of her race.
The President declined her complaint but Dr Kubay requested that it be referred to the Tribunal. She needs the Tribunal's permission before her complaint can go ahead: Anti-Discrimination Act 1977 (AD Act), s 96. Dr Kubay has the onus of persuading the Tribunal that it is fair and just for her complaint to proceed, keeping in mind the purposes of the AD Act: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143, per Schmidt AJ.
The problem with Dr Kubay's complaint is that she has brought it against the wrong respondent. The correct respondent is the Medical Board of Australia because that is the body that has power to register or refuse to register Dr Kubay and to determine the terms on which it is prepared to register her. The Royal Australian and New Zealand College of Ophthalmologists (RANZCO) merely asseses the skills and knowledge of practitioners. For that reason I refuse to give permission for her complaint against RANZCO to go ahead.
Identification of the "qualifying body"
It is unlawful for a "qualifying body" to discriminate against a person on the grounds of race. Section 12 of the AD Act states that:
12 Qualifying bodies
It is unlawful for an authority or a body which is empowered to confer, renew or extend an authorisation or a qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation to discriminate against a person on the ground of race:
(a) by refusing or failing to confer, renew or extend the authorisation or qualification,
(b) in the terms on which it is prepared to confer the authorisation or qualification or to renew or extend the authorisation or qualification, or
(c) by withdrawing the authorisation or qualification or varying the terms or conditions upon which it is held.
To be liable under s 12, the legal entity must be an "authority or body which is empowered to confer, renew or extend an authorisation or a qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation."
The Intergovernmental Agreement for a National Registration and Accreditation Scheme for the Health Professions has been enacted in each State in identical terms. In New South Wales the relevant legislation is the Health Practitioner Regulation National Law (NSW). Section 31 establishes the Medical Board of Australia and section 35 gives it functions including:
(a) to register suitably qualified and competent persons in the health profession and, if necessary, to impose conditions on the registration of persons in the profession;
(b) to decide the requirements for registration or endorsement of registration in the health profession, including the arrangements for supervised practice in the profession;
. . . .
(d) to approve accredited programs of study as providing qualifications for registration or endorsement in the health profession;
(e) to oversee the assessment of the knowledge and clinical skills of overseas trained applicants for registration in the health profession whose qualifications are not approved qualifications for the profession, and to determine the suitability of the applicants for registration in Australia;
Section 37 of the National Law permits the Australian Medical Board to delegate the function of assessing the knowledge and skills of overseas-qualified medical practitioners to the Australian Medical Council. The AMC has engaged several colleges including RANZCO to assess practitioners in specialist fields. The Specialist International Medical Graduate Committee (SIMGC) is a committee within RANZCO. It is responsible for reviewing documentation and conducting interviews with applicants.
The legislative scheme makes it clear that the power to register medical practitioners and to determine the terms on which they are registered lies with the Australian Medical Board. RANZCO merely assesses the skills and knowledge of practitioners. The qualifying body in this case is the Australian Medical Board, not RANZCO. Dr Kubay's complaint against RANZCO under s 12 of the AD Act cannot succeed and leave for her to proceed with that complaint is refused.
I will assess the merits of a complaint against the Australian Medical Board on the basis of the evidence and submissions provided. That assessment will give Dr Kubay one view as to whether it is worthwhile lodging a new complaint against the Australian Medical Board. The Australian Medical Board was not a party to these proceedings and nothing I say about the merits of the complaint is binding on it or on Dr Kubay.
Summary of applicant's evidence and submissions
Following her application for recognition as a specialist ophthalmologist on 9 March 2011, RANZCO began a process of assessing Dr Kubay's qualifications and experience for comparability. This initial assessment process was run by the SIMGC, which reviews documentation and conducts interviews with applicants.
Dr Kubay was invited to attend an interview with the SIMGC on 5 December 2011. The purpose of the interview was to explore questions arising from the documents provided by Dr Kubay, to allow her to raise further points, and to ensure that she understood the assessment process. The interview took place in a private residence and was attended by two of the eight SIMGC members. Dr Kubay said that the failure to conduct the interview in a professional setting with a 'quorum' present constituted a failure to follow protocols.
According to Dr Kubay, the SIMGC members undertaking the comparability assessment did not have special knowledge of training and standards in Ukraine. Dr Kubay says that they could not provide a fair assessment of Ukrainian applicants, as they did not have adequate knowledge to make a determination of comparability. She says that this constitutes a failure to consider, or properly consider, relevant and significant information in the making of a decision.
On 8 December 2011, three days after the interview, Dr Kubay received an Assessment of Overseas Trained Specialist Report from RANZCO, which stated that she was assessed to be "partially comparable". After a finding of partial comparability is made, RANZCO decides whether the applicant will sit the written and/or clinical components of the RACE examinations (RANZCO Advanced Clinical Examination). RANZCO told Dr Kubay that, "As a first step, the applicant must sit the written and clinical components of the RANZCO Advanced Clinical Examination (RACE). ... If Dr Kubay decides to comply with the College requirements, she must complete these requirements within 3 years from the date of AMC notification of the College's recommendation."
The Australian Medical Council also wrote to Dr Kubay on 8 December 2011, stating that she "is required to complete" both the written and clinical RACE assessments in order for the College to "assess comparability of knowledge across each of the clinical areas in ophthalmology". She also claims that she should have been given the grounds for the assessment and a chance to discuss the assessment with SIMGC.
In February 2012, Dr Kubay sat the written component of the RACE. She received a fail grade. RANZCO contends that her score was 17/40, and that a 'pass' grade is 32/40 or higher. Dr Kubay claims that she should have access to her exam papers, and that RANZCO's failure to provide these to her is unfair and constitutes a breach of the Freedom of Information Act 1989 (now the Government Information (Public Access) Act 2009).
At the exam preparation course interview, one of the examiners asked Dr Kubay, "What are they doing there in Moscow?" She had not met the examiner before. Dr Kubay says that this is evidence that he already knew that she was from a different part of the world. She says that this examiner was one of the examiners who gave her the fail grade on her written RACE exam, and that examiners therefore "have all the information about the applicants well in advance." She says that this means that the RACE examinations are conducted in an unlawful and misleading way.
On 10 May 2012, RANZCO informed the Dr Kubay that her training was "not comparable". The AMC also wrote to Dr Kubay on that day informing her that she was not eligible for consideration as a specialist ophthalmologist. This effectively meant that Dr Kubay was not permitted to take the second part of the RACE exam, the clinical component.
The law
Race discrimination by a qualifying body
There is no dispute that, on 10 May 2012, the AMC informed Dr Kubay that she was not eligible for consideration as a specialist ophthalmologist and that, subsequently, the Australian Medical Board made a decision not to confer a qualification on her. Dr Kubay says she is not complaining about the failure to confer the qualification. She is complaining about the terms on which the qualifying body was prepared to confer the qualification: AD Act, s 12(b). Given Dr Kubay's allegations, I understand that she is saying that the terms on which the Australian Medical Board was prepared to confer the qualification included:
(1) that for the purposes of the preliminary assessment, she attend an interview with only two of the eight SIMGC members in a private residence;
(2) that for the purposes of the preliminary assessment, she be assessed by SIMGC members who did not have adequate knowledge of training and standards in Ukraine;
(3) that she not be told the reasons for being assessed on a preliminary basis as "partially comparable";
(4) that she sit a written exam in circumstances where the examiner has all the information about her background well in advance;
(5) that she sit a written exam but not have access to her completed and marked exam paper;
(6) that she sit a written exam where the marking required a subjective judgment rather than multiple choice options; and
(7) that she not be permitted to sit the clinical exam after she had failed the written exam.
Dr Kubay also alleged that RANZCO violated her privacy by discussing her case with third parties without her consent, but this allegation cannot be part of a race discrimination complaint.
Direct discrimination on the ground of race
I understand that Dr Kubay is complaining only of 'direct discrimination' on the ground of race as defined in s 7(1)(a) and 7(2) of the AD Act:
(1) A person discriminates against another person on the ground of race if the perpetrator:
(a) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race.
(2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.
The Australian Medical Board is vicariously liable for any act done by its agent unless the Board did not authorise the agent, either expressly or impliedly to do that act. Section 53(1) provides that:
An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.
In order to substantiate the complaint, Dr Kubay would have to prove that:
(1) she is a member of a race as defined in s 4 of the AD Act;
(2) the Australian Medical Board decided that it would confer the qualification on Dr Kubay only on the terms set out above;
(3) in imposing those terms, the Australian Medical Board treated her less favourably than it treated or would have treated a person who was of not Ukrainian in the same or similar circumstances (differential treatment); and
(4) at least one of the reasons for that treatment was Dr Kubay's race (causation).
Race
Race includes "colour, nationality, descent and ethnic, ethno-religious or national origin": AD Act , s 4. Dr Kubay nominated her race as 'Ukrainian'. There is no dispute that Ukrainian comes within the definition of 'race'.
Terms on which the Australian Medical Board is prepared to register Dr Kubay
For the purpose of these proceedings I have assumed that Dr Kubay would be able to establish the truth of her assertions and that they constitute terms on which the Australian Medical Board is prepared to register her. I will assess the merits of each of Dr Kubay's allegations by applying the differential treatment and causation elements of the test for direct race discrimination.
The 'partially comparable' assessment
Conduct of interview
Dr Kubay says that the interview that she attended on 5 December 2011 as part of the comparability assessment was disrespectful and amounted to a failure to follow interview protocols and policies because it took place in a private residence and was only attended by two of the eight SIMGC members.
The differential treatment element of the test for direct discrimination requires Dr Kubay to demonstrate that had SIMGC been interviewing a non-Ukrainian person in the same or similar circumstances, the interview would have taken place in a different location and would have been attended by more than two members. Dr Kubay did not nominate any person of a different race who was treated more favourably than her. In those circumstances, she would have to rely on a hypothetical person. Without any evidence, it is difficult to predict how such a person would have been treated.
Turing to the second element of direct discrimination, causation, there is no evidence from which the Tribunal could infer that one of the reasons for conducting the interview in this way was Dr Kubay's race. That makes it unlikely that Dr Kubay would be able to substantiate this part of her complaint.
Lack of knowledge of Ukranian training and standards
Dr Kubay alleges that the SIMGC comparability assessments are discriminatory against Ukrainian applicants because the assessors do not have adequate knowledge of the training and standards in Ukraine.
Dr Kubay must show that, in making the preliminary assessment that she was only "partially comparable" she was treated less favourably than a non-Ukranian person was or would have been treated in the same or similar circumstances. It is important to distinguish between race and the country in which a person was trained. The appropriate comparator in this situation is a non-Ukrainian person, with the same training and qualifications as Dr Kubay, undergoing the same assessment of comparability. Alternatively Dr Kubay may be able to argue that it is a 'characteristic' that appertains generally to persons of her race that they have qualifications from Ukraine: AD Act, s 7(2).
Dr Kubay makes the point that she does not have access to information regarding the racial backgrounds and countries of training of applicants who are assessed to be "substantially comparable". If the complaint proceeds to a hearing some evidence about those matters may be adduced. On the current state of the evidence, there is no actual comparator. If that situation remains, the Tribunal would have to compare the treatment afforded to Dr Kubay with the treatment that would have been afforded to a hypothetical non-Ukranian person in the same or similar circumstances.
The respondent says that SIMGC members have no personal experience of training programs and standards in other countries, and therefore rely on information provided by applicants and obtained from other sources such as referees and supervisors. This is the procedure followed for all applicants. The respondent also makes the point that it is the content of the training program that is relevant, not the country in which the training took place. The respondent therefore claims that all applicants, regardless of their racial background, are assessed on the same basis.
Dr Kubay did not submit that SIMGC members have less knowledge of training and standards in Ukraine than other countries, or that any difference in their knowledge affects the assessment of comparability of applicants. She asks, rhetorically whether, "If SIMGC doesn't have knowledge of training and standards in Ukraine as stated by their lawyers then how can they provide a fair assessment for Ukrainian applicants?" But fairness in a general sense is not the test the Tribunal would apply when assessing whether there has been a breach of the AD Act.
Failure to provide grounds for assessment
Dr Kubay also says that she was not given the grounds for the assessment that she was partially comparable. Again, she would have to show that failure to give her the grounds for the assessment constitutes treatment that is less favourable than the treatment that would have been afforded to a non-Ukrainian person in the same or similar circumstances and that that treatment was on the grounds of her race. According to RANZCO, it does not give any applicants the grounds for their comparability assessments. While Dr Kubay considers this practice to be unfair, that is not the test under the AD Act.
The 'fail' grade on the written examination
Examiner's knowledge of applicant's race, and applicant's access to exam papers
Dr Kubay alleges that she was unfairly given a 'fail' grade on her written RACE examination because the examiner knew that she was from a different part of the world.
Dr Kubay must show that a non-Ukrainian person who had submitted the same examination paper would not have received a fail grade by that examiner. It is highly unlikely that another person has submitted exactly the same examination paper, so the Tribunal would have to compare the treatment of Dr Kubay with the treatment that would have been afforded to a hypothetical non-Ukrainian person submitting the same paper.
Because RANZCO does not provide completed exam papers to applicants it is not possible for Dr Kubay to prove that her exam was marked in a particular way. It may be that if this matter proceeded to a hearing, those exam papers could be obtained under summons, if they still exist.
In relation to the test of causation, Dr Kubay says that she met the examiner who marked her written exam prior to taking the exam, and that he asked her, "What are they doing there in Moscow?" RANZCO did not comment on this incident, but says that all personal information about applicants sitting the RACE exams, including their names, races, ethnicities and citizenships, are withheld from examiners when they are marking exams. It therefore appears unlikely that Dr Kubay will be able to show that any difference, if such a difference exists, in the way that the papers of Ukrainian and non-Ukrainian applicants are marked is on the ground of race.
Examination assessed on a subjective basis
Dr Kubay also says that the written RACE examination was unfair because it was assessed on a subjective basis rather than on an objective basis. Dr Kubay argues that the written RACE examination should be an electronically assessed, multiple-choice test to eliminate any subjectivity by the examiner.
Dr Kubay has not provided any evidence that an examiner would treat a non-Ukranian person taking the same test more favourably. The respondent says that the written RACE exam is administered in the same way for every applicant, and it is always marked by a human examiner. Therefore, this is not a procedure that applies variably depending on the person's race.
To prove that subjective assessment constitutes race discrimination, Dr Kubay needs to show that the subjective nature of the written RACE exam constitutes less favourable treatment than others were or would have been afforded. Alternatively, Dr Kubay may consider her complaint to be one of indirect discrimination. She did not raise that possibility at the hearing.
It may indeed be true that the procedure would operate more fairly and transparently if the exam were administered electronically. However, lack of transparency does not necessarily constitute discrimination. Dr Kubay would need to show that the subjective nature of the test does in fact treat Ukrainian applicants less favourably than non-Ukrainian applicants, and given the lack of evidence, it is unlikely that she will be able to do so.
Failure to allow applicant to take clinical examination
The parties agree that after failing the written exam, Dr Kubay was denied the opportunity to sit the clinical RACE examination. Dr Kubay must show that the requirement that she pass the written exam in order to take the clinical exam and thus receive a qualification does not apply to a non-Ukrainian applicant in the same or similar circumstances. The appropriate comparator in this situation is a non-Ukrainian person who received the same or a lower mark on the written RACE exam.
Dr Kubay claims that in 2009, she and an applicant from South Africa both received 'fail' grades on the RACE exams. She says that two months later, the South African applicant was upgraded to a "substantially comparable" ophthalmologist whereas Dr Kubay was not. Insufficient information was given about the applicant from South Africa to determine whether his situation is comparable to Dr Kubay's situation. A tribunal hearing this complaint would need further information to determine whether he is an 'actual comparator' for the purpose of the differential treatment test.
The respondent concedes that some applicants who fail the written RACE exam are permitted to take the clinical exam and others are not. The decision to permit an applicant to go on to take the clinical exam is discretionary and depends on the competencies previously shown by the applicant and the training they have received. RANZCO suggested that a more probable and innocent explanation for its refusal to allow Dr Kubay to take the clinical exam is the fact that she failed important components of the written exam. Whether race was a reason is an issue that would have to be determined on all the evidence if this matter went to hearing. It is difficult to predict whether Dr Kubay would be able to substantiate this part of her complaint.
Order
Leave is refused for the applicant's complaint of race discrimination against the Royal Australian and New Zealand College of Ophthalmologists to proceed.
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Decision last updated: 17 October 2013
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