Mewett v University of Canberra
[2018] ACAT 61
•4 June 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MEWETT v UNIVERSITY OF CANBERRA (Discrimination) [2018] ACAT 61
DT 11/2017
Catchwords: DISCRIMINATION – referral of complaint by Human Rights Commission – complaint of direct and indirect discrimination on the ground of disability and on the ground of caring responsibilities in the area of education – respondent’s application to strike out application as frivolous or vexatious, lacking in substance and/or abuse of process – whether applicant’s application is foredoomed to fail
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 9, 32
Discrimination Act 1991 ss 7, 8, 18
Human Rights Act 2004 ss 21, 30, 40BHuman Rights Commission Act 2005 ss 42, 43, 53A, 53C, 78
Cases cited:Council of the Law Society of the ACT v The Legal Practitioner [2011] ACAT 49
Gardner & Beaver v The ACT Planning and Land Authority [2010] ACAT 64
Gindy v Chief Minister & Act Government and Ors [2011] ACAT 67
Jamieson Mary v The Australian Workers Union & Anor [1999] VCAT 628
King v Higgins [2009] ACTSC 153
Pitt v One Steel Reinforcing Pty Ltd [2008] FCA 923
ReCameron [1996] QCA 37
The Appellants v The Law Society of the ACT and the Legal Practitioner [2011] ACTSC 133
Tribunal: Presidential Member E Symons
Date of Orders: 4 June 2018
Date of Reasons for Decision: 4 June 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 11/2017
BETWEEN:
SCOTT MEWETT
Applicant
AND:
UNIVERSITY OF CANBERRA
Respondent
TRIBUNAL:Presidential Member E Symons
DATE:4 June 2018
ORDER
The Tribunal orders that:
1.Upon being satisfied that the application is frivolous and vexatious it is dismissed pursuant to section 32(2)(b) of the ACT Civil and Administrative Tribunal Act 2008.
………………………………..
Presidential Member E Symons
REASONS FOR DECISION
Summary
1.In 2013 Scott Mewett (applicant) enrolled in the Bachelor of Arts in Architecture at the University of Canberra (respondent). During 2014 he withdrew from all units he was studying. He sought relief in the tribunal for unlawful discrimination against him by the respondent on the basis of his having a disability and his caring responsibilities in the area of education.
2.The respondent successfully sought that the applicant’s application be struck out as being frivolous or vexatious, not disclosing a prima facie case of unlawful discrimination and lacking in substance (strike out application).
3.The reasons below explain why the Tribunal has granted the respondent’s application and dismissed the applicant’s substantive application.
4.In summary, the Tribunal found that the applicant’s application was lacking in substance, disclosed no prima facie case of unlawful discrimination, was without merit and foredoomed to fail.
5.In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the current member hearing this matter.
Background
6.The applicant complained to the Human Rights Commission (Commission) on 9 February 2017. The complaint form showed that the applicant believed that the respondent discriminated against him in the area of education because of his protected attributes of disability and being a carer.
7.Section 18(1) of the Discrimination Act 1991 (Discrimination Act) makes it unlawful for an educational authority to discriminate against a person by failing to accept the person’s application for admission as a student or in the terms or conditions on which it is prepared to admit the person as a student. Section 18(2) makes it unlawful for an educational authority to discriminate against a student, relevantly, by (a) denying the student access, or limiting the student’s access, to any benefit provided by the authority or (c) subjecting the student to any other detriment.
8.Section 42(1)(c) of the Human Rights Commission Act 2005 (HRC Act) provides that a complaint about an unlawful act under the Discrimination Act may be made under the HRC Act. Section 43(1)(a) of the HRC Act provides that a complaint may be made to the Commission under the HRC Act by a person aggrieved by the act or service.
9.The Commission closed the complaint on 14 August 2017 under section 78(1) of the HRC Act on the basis that “the commission considered that conciliation is unlikely to succeed.” The applicant requested the Commission to refer the complaint to the Tribunal very shortly after.
10.Section 53A of the HRC Act provides that a complaint about an unlawful act under the Discrimination Act must be referred to the ACT Civil and Administrative Tribunal in certain circumstances which occurred in this case by letter dated 12 August 2017. The letter stated that the grounds the applicant relied on were “Disability, Status as carer and Victimisation” in the area of “Education” and enclosed a copy of the applicant’s complaint. Part E of the written complaint referred to ‘Sexual Harassment’, ‘Victimisation’ or ‘Vilification’ and had not been completed by the applicant.
11.The Tribunal regards complaints referred by the Commission under section 53A as applications made to the Tribunal under section 9 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). The complainant becomes the applicant for the purposes of the proceedings before the tribunal. The person or entity complained about is the respondent. This is consistent with section 53C of the HRC Act which provides that the parties to tribunal proceedings on a complaint referred to the tribunal, are the complainant and the person complained about.
12.The applicant alleged that the respondent directly or indirectly discriminated[1] against him, by treating him unfavourably, on the basis of his disability and his caring responsibilities, being protected attributes. The respondent submitted that the applicant claimed that the discrimination was manifest in the following conduct:
(a)Imposing conditions upon him in 2017 which prevented him from completing a unit of study during 2017 which he commenced in 2013 and which he withdrew from in 2014; and
(b)Imposing conditions upon him in 2014 and 2017 which prevented him from attending an exchange program at New Plymouth University (UK) (Plymouth University).[2]
[1] As defined in section 8 of the Discrimination Act 1991
[2] Respondent’s submissions filed on 8 December 2017, page 1
13.The Tribunal listed the matter for a directions hearing on 9 October 2017 when a timetable was set for the parties to file their documentation and the matter was listed for a further directions hearing on 18 December 2017. The applicant was directed to file, by 4.30pm on 17 November 2017, a document setting out:
(a) The time and details of each act, fact, matter, circumstance of thing which, either individually or taken collectively, amounts to unlawful discrimination under the Discrimination Act 1991 and which was the subject of the complaint to the Human Rights Commission, specifying in each case the protected attributes relied upon;
(b) The orders the Applicant seeks the Tribunal make at the conclusion of the hearing, referring to the provision of the Human Rights Commission Act 2005 (copy attached) which provides the Tribunal with the power to make each order.
14.The applicant advised the tribunal on 10 November 2017 that he was unable to file his documentation by 17 November 2017 and sought an extension of three weeks. The respondent did not oppose the extension of time. In an email dated 15 November 2017 to the applicant the tribunal requested that he “tries to file [his documentation] as he anticipates, being by early December or at least prior to the directions hearing listed for 18 December 2017.”
15.Notwithstanding that the applicant had not complied with the directions and, thus, had not particularised his claim in accordance with the tribunal’s orders, on 8 December 2017, in compliance with the directions of 9 October 2017 the respondent filed its response and submissions, “based upon materials the applicant previously provided to the ACT Human Rights Commission and to the respondent during internal grievances.”[3] The tribunal provided a copy of the response and the submissions to the applicant. The submissions included a chronology for the period 2013 to and including 2017. In the response the respondent sought an order that the applicant’s claim be dismissed for lack of a prima facie case.
[3] Respondent’s submissions lodged 8 December 2017, page 1
16.At the further directions hearing on 18 December 2017 the tribunal noted that the applicant had not filed any material. It listed the matter for hearing on 18 and 19 January 2018 and further noted that “the hearing is proposed to be conducted largely by oral evidence and submissions; and may resume on a later date to take evidence and submissions in reply.”
The hearing on 18 January 2018
17.The applicant represented himself and participated in the hearing on 18 January 2018 by telephone. Ms A Kilpatrick, the respondent’s Senior Legal Counsel, represented the respondent at the hearing.
18.As the applicant had still not provided any documentation particularising his claim, the Tribunal commenced the hearing on 18 January 2018 by taking oral evidence from the applicant. During the hearing the applicant agreed to provide the Tribunal with the following documentary evidence by 29 January 2018:
(a)His re-enrolment at the University of Canberra in 2016 and his seeking credit for the unit he studied at the University of Sydney.
(b)Academic transcript or other documentary evidence of the completion of the unit he studied at the University of Sydney in 2016.
(c)His being a carer for his ex-partner.
(d)His patrilineal heritage including application for a patrilineal visa to travel to Britain in 2014 and in 2017.
(e)His application for and approval to study abroad in 2014.
(f)Academic transcript or other record for his study at the University of Canberra including credits from previous studies.
(g)Correspondence from the University of Canberra allowing him to study online when he moved to Sydney from Canberra at the beginning of 2014.
(h)Material he relies on as evidence that the University of Canberra was part of his dispute with Uni Lodge.
(i)Evidence he relies on in support of his claim that he was victimised by the respondent.
19.At the conclusion of the first day of the hearing the Tribunal vacated the hearing date of 19 January 2018 and made orders for the respondent to provide all documentary evidence in support of his application by 29 January 2018; for the respondent to file its reply to the applicant’s documents and any other material in support, including witness statements, by 12 February 2018 and adjourned the hearing to a date to be fixed and notified to the parties.
After 18 January 2018
20.The applicant subsequently sought and was granted an adjournment to 6 February 2018[4] in which to file his documentary evidence in support of his application. The tribunal also extended the time for the respondent to file its material, including in reply to the applicant’s material, to 20 February 2018.
[4] Order dated 7 February 2018
21.On 30 January 2018 the respondent filed an application for interim or other orders seeking that the applicant’s application be dismissed pursuant to section 32(2)(b) of the ACAT Act. The strike out application was listed for hearing on 6 March 2018.
22.The applicant filed the following documents with the tribunal on 25 January 2018:
(a)Letter from Dr Levitt, Dental Surgeon, 22 January 2018.
(b)Letter from Dr McLean, a specialist, 29 January 2017.
(c)Letter from Dr Baker, a specialist, 25 July 2012.
23.On 5 February 2018 the applicant filed the following documents with the tribunal:
(a)Statement of Vipu Jogia 4 February 2018.
(b)The letter from Dr Michael Levitt, Dental Surgeon, 22 January 2018 referred to in [22] above.
24.On 6 February 2018 the applicant filed the following documents with the tribunal:
(a)The applicant’s University of Sydney course result history printed 6 February 2018.
(b)Letter from the respondent to the applicant dated 24 November 2014.
(c)University of Canberra confirmation of enrolment dated 5 June 2013.
(d)The respondent’s ‘Inclusion and Welfare Plan 2014 Semester 1’ for the applicant.
(e)The respondent’s offer letter to the applicant dated 16 December 2016.
(f)Letter from respondent to the applicant, 2 February 2017, regarding ‘Access Scholarship’.
(g)Email from Plymouth University to the applicant dated 11 June 2014 regarding ‘ISEP Exchange 2014/2015 Full Year’.
(h)‘Student Abroad and Exchange Program Course Credit Transfer Agreement’ dated 7 July 2014.
(i)Email correspondence between the applicant and the University of Canberra Study Abroad section between 26 January 2017 and 7 February 2017.
(j)The applicant’s academic transcript with the respondent 15 August 2014.
25.The respondent filed a witness statement by Professor Steve Basson dated 20 February 2017 (sic) and a witness statement by Jessica Cronin dated 20 February 2018.
26.On 6 March 2018 the respondent also filed submissions in support of the summary dismissal application which, Ms Kilpatrick submitted, consolidated the assertions made in the two witness statements referred to in the preceding paragraph.
The hearing – strike out application 6 March 2018
27.Ms A Kilpatrick appeared for the respondent and the applicant represented himself and appeared by telephone at the hearing of this application on 6 March 2018. During the hearing the Tribunal considered the witness statements of Professor Basson and Jessica Cronin and the applicant’s oral submissions in relation to those documents, the applicant’s evidence given on 18 January 2018, the documentary evidence that had been filed and the parties’ written and oral submissions on 6 March 2018. The Tribunal reserved its decision at the conclusion of the hearing. This is the Tribunal’s decision.
The powers of the Tribunal
28.The tribunal’s powers were considered in an earlier decision of Gindy & Chief Minister & ACT Government and Ors[5] (Gindy) where that tribunal stated:[6]
13. The tribunal is a creature of statute. This statement, while trite, encapsulates a proposition that underpins each action the tribunal takes. The tribunal may only do things, make decisions and exercise powers, which a law specifically authorises it to do. It is recognised that a statutory decision-making body may do things that are, by implication, necessary to give effect to an express power, but the Tribunal must be able to ground its actions on an express power.
14. The importance of this fundamental principle has been reinforced in relation to this tribunal recently by his Honour Refshauge J in the matter reported as The Appellants v The Law Society of the ACT and the Legal Practitioner [2011] ACTSC 133.
Legislative Framework
[5] [2011] ACAT 67 at [13]
[6] At [13] and [14]
29.The respondent relies on section 32 of the ACAT Act which provides:
Dismissing or striking out applications
(1) This section applies if the tribunal considers that an application, or part of an application is––
(a) frivolous or vexatious; or
(b) lacking in substance; or
(c) otherwise an abuse of process; or
(d) made by a person who has been dealt with by a court or tribunal in Australia as frivolous or vexatious.
(2) The tribunal may, by order, do 1 or more of the following:
(a) refuse to hear the application or part of the application;
(b) dismiss the application or part of the application;
(c) direct that the person who made the application not make a subsequent application to the tribunal of the kind stated in the direction—
(i) within a stated period of time; or
(ii) without the leave of the tribunal.
Note If the application is for review of a decision under the Heritage Act 2004, the Planning and Development Act 2007 or the Tree Protection Act 2005, the tribunal may also order the applicant to pay costs (see s 48 (2) (d)).
(3) The tribunal may make an order under subsection (2) on its own initiative or on application by a party.
(4) The tribunal may vary or revoke a direction given under subsection (2)(c)—
(a) on its own initiative; or
(b) on application by the person who is the subject of the order.
Note The tribunal must observe natural justice and procedural fairness (see s 7).
30.This power is used by the tribunal in relation to various matters that come before it.[7]
[7] Gindy, at [16]
31.In Gindy, that tribunal considered the phrase ‘frivolous and vexatious’ and stated:
18. The phrase “frivolous and vexatious” is a term of art that has been considered in many cases. In Pitt v One Steel Reinforcing Pty Ltd[8] Grey J said:
The word “frivolous”, especially when coupled with “vexatious” is a technical legal term, in substance, meaning the absence of a cause of action.
19.It was considered recently by Member Chenoweth in the matter of Council of the Law Society v Legal Practitioner reported at [2011] ACAT 49, Mr Chenoweth said:
The use of the term “frivolous or vexatious” has a pejorative note to it. It has the implication that an application has been made for no good reason at all, or for a purpose designed to harass or annoy. The term is also used to describe a cause of action which has no reasonable prospects of success.
20. Mr Chenoweth noted the comments made by President Fitzgerald in the matter of Cameron ([1996] QCA 37) to the effect that proceedings may be regarded as vexatious if there is a lack of reasonable grounds for the application sought to be made. Mr Chenoweth also referred to the comments of Refshauge J in the ACT Court of Appeal matter of King v Higgins ([2009] ACTSC 153).
21.The phrase has been used in a number of cases in the context of an action designed to harass or annoy a party. I accept that that meaning is not relevant in these matters. I accept that the applicant genuinely believes that she was subject to unfavourable treatment and that she has, to that extent, a genuine grievance.
…
23.A complaint cannot be dismissed unless it is clear that the complainant has no arguable case which should be allowed to be resolved at hearing. The onus is on the person applying for the dismissal to establish that that is the case.
[8] [2008] FCA 923 at [9]
32.As the tribunal found in Gindy above, the Tribunal in the present matter accepts that the applicant genuinely believes that he has been subject to unfavourable treatment and that he has, to that extent, a grievance.
33.In Jamieson Mary v The Australian Workers Union & Anor[9] the Victorian Civil and Administrative Tribunal (VCAT) was considering an application to strike out a discrimination complaint as frivolous and vexatious at a preliminary stage of the proceedings. VCAT summarised the principles to be considered in a strike out application as:
[9] [1999] VCAT 628
(a)The respondent bears the onus of showing that the complainant’s case ought not be allowed to proceed.
(b)The respondent must show that the complainant’s case is obviously hopeless and untenable, or that it could on no reasonable view, justify relief. A complaint can be dismissed or struck out if it is obviously unsustainable in law or fact. This will include, but is not limited to, a case where a complaint can be said to disclose no reasonable cause of action.
(c)A clear distinction must be drawn between the complaint and the evidence which is to be given in support of it. A complaint cannot be dismissed or struck out as lacking in substance merely because it does not in itself contain the evidence supporting the claims.
(d)The tribunal should not apply technical, artificial or mechanical rules in coming to a view about the case that a complainant wishes to advance.
(e)The proceedings may be determined on the ‘pleadings’ and submissions alone, or by allowing the parties to put forward material including affidavits and oral evidence.
(f)If the complainant indicates that the whole of the case is contained in the material before the tribunal, the tribunal is entitled to determine the strike out application by asking whether, on all the material before it, there is a question of real substance to go to a full hearing.
(g)However, if the complainant indicates that there is other evidence they can call to support their claim and the tribunal does not permit that evidence to be called, the tribunal cannot determine the matter on the basis that the complainant’s material contains the whole of their case.
(h)If the material before the tribunal shows that there is a dispute between the parties about a fact and the material does not assist the tribunal to resolve the dispute, it will be difficult for the tribunal to be satisfied that the complaint is so lacking in substance that it should be dismissed or struck out.
(i)It is a serious matter for the tribunal, in an interlocutory (or interim) proceeding which will generally not involve the hearing of oral evidence, to deprive a litigant of the chance to have their complaint heard in the ordinary course.
(j)If the respondent has satisfied the tribunal that the complaint or any part of it is frivolous, vexatious, misconceived or lacking in substance in respect of any element that is essential for the complainant to prove, then the complaint or the relevant part of the complaint should be dismissed or struck out.
34.As stated by the tribunal in Gindy at [27] a decision to strike out a claim under section 32 of the ACAT Act has the inevitable consequence that the applicant in the matter will not have access to a hearing on the merits. This prima facie engages the applicant’s right to a fair hearing under section 21 of the Human Rights Act 2004 (HR Act) which states:
21 Fair trial
(1) Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
(2) However, the press and public may be excluded from all or part of a trial—
(a)to protect morals, public order or national security in a democratic society; or
(b)if the interest of the private lives of the parties require the exclusion; or
(c)if, and to the extent that, the exclusion is strictly necessary, in special circumstances of the case, because publicity would otherwise prejudice the interests of justice.
(3) But each judgment in a criminal or civil proceeding must be made public unless the interest of a child requires that the judgment not be made public.
35.The tribunal considered the relevance of the HR Act to an application under section 32 of the ACAT Act in Gardner and Beaver v The ACT Planning and Land Authority[10] (Gardner). In that case Professor Spender referred to the two bases which found the obligation of the tribunal to consider the HR Act, the first being the interpretative obligation under section 30 of the HR Act, and the second being the obligation under section 40B of the HR Act which makes it unlawful for a public authority when making a decision, to fail to give proper consideration to a relevant human right. Those sections are set out below:
[10] [2010] ACAT 64
30 Interpretation of laws and human rights
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
40B Public authorities must act consistently with human rights
(1) It is unlawful for a public authority—
(a)to act in a way that is incompatible with a human right; or
(b)in making a decision, to fail to give proper consideration to a relevant human right.
(2)Subsection (1) does not apply if the act is done or decision made under a law in force in the Territory and—
(a)the law expressly requires the act to be done or decision made in a particular way and that way is inconsistent with a human right; or
(b)the law cannot be interpreted in a way that is consistent with a human right.
Note A law in force in the Territory includes a Territory law and a Commonwealth law.
(3) In this section:
public authority includes an entity for whom a declaration is in force under section 40D.
36.When considering the strike out application the Tribunal must turn its mind to section 21 of the HR Act. As the tribunal said in Gindy at [29].
…a consideration of the fair trial principles is unlikely to bring this tribunal to any different interpretation of the relevant law. It is clear that the body of jurisprudence, both in relation to the exercise of a statutory power to dismiss proceedings summarily, and the exercise of a common law power to proceedings summarily, recognizes the overarching right of an applicant to have a sustainable case considered in a full hearing.
37.The tribunal in Gindy also had this to say in relation to section 40B of the HR Act and its application in strike out applications:
30.It is not clear that the tribunal acts as a public authority when it is considering complaints under the Discrimination Act 1991. I could not find any consideration of this issue in Victoria. Further it is not clear that the tribunal acts as a public authority when it is considering a strike out application under section 32 of the ACAT Act. This is because both discrimination proceedings and proceedings under section 32 of the ACAT Act, determine rights between individuals. This is not on the face of it, an exercise of power by the tribunal in an administrative capacity as a public authority. However, like Professor Spender in the Gardner case, I do not think it is necessary to formally decide the matter. I note that the Victorian Civil and Administrative Tribunal has taken the approach that its power to strike out proceedings at a summary stage does not involve an exercise of power in an administrative capacity.
38.The Tribunal adopts the above statements by the tribunal in Gindy and Gardner as well as the following statement in Gindy:
32.I have considered the extent to which a decision under section 32 of the ACAT Act is consistent with the human rights contained in the HR Act and, specifically with the right to a fair trial. The right to a fair trial does not, in my view, mean that the tribunal cannot or should not exercise its strike-out power in a matter which it is satisfied is doomed to fail, or in a matter which lacks substance in respect of any element that is essential for the applicant to prove. The right of access to the tribunal and the right to a full hearing is not absolute. Section 32 pursues a legitimate aim of discouraging litigants from bringing claims that have no merit…
39.I turn to the applicant’s application.
Mr Mewett’s application
40.Mr Mewett told the Tribunal the following background information to this application. He had undertaken further education from 2008 to forestall the onset of a medical condition which had afflicted his father and his father’s siblings. He commenced studying in 2013 with the respondent. Since 2014 he has wanted to undertake study abroad in the United Kingdom for 12 months and for his ex-partner, for whom he cares, to accompany him so she could reconnect with people she had previously met overseas. He explained that he “needed” to go abroad so his ex-partner could be overseas with him before she dies and he stressed that this had to occur before it was too late. In order to undertake study abroad he said he needed an OS-HELP loan from the Australian Government. Since 2014 he has been caring for his ex-partner who lives in Sydney.
41.The applicant filed very little material with the Tribunal in support of his application. He did not comply with tribunal directions made on 9 October 2017 that he file a document setting out the time and details of each act, fact, matter, circumstance or thing which, either individually or taken collectively, amounts to unlawful discrimination under the Discrimination Act and which was the subject of the complaint to the Commission, specifying in each case the protected attributes relied upon. Nor did he provide details of the orders he sought and the relevant sections under the HRC Act.
42.In considering the strike out application the Tribunal looked to the complaint to the Commission to ascertain if it could identify, as best it was able, the time and details of each act, fact, matter, circumstance of thing either individually or collectively relied on by the applicant to support his claim of the alleged unlawful discrimination under the Discrimination Act and the protected attributes he relied upon. In that complaint he identified disability and caring responsibilities as the protected attributes he relied upon and education as the area of discrimination. He did not complete Part E of the complaint in relation to victimisation or vilification.
43.Notwithstanding its length, given the lack of other documentary material from the applicant, the Tribunal sets out the following excerpts from the applicant’s complaint to the Commission:
In 2014 the University of Canberra allowed me extended extensions on two units of study in my undergraduate course commenced in 2013. At the same time I was accepted into the study abroad program as an exchange student with a UK university. All paperwork was complete (sic) for this application that would have been for one year exchange from September 2014 to September 2015.
At the beginning of 2014 I had to leave the University campus, relocate to Sydney and care for my ex-partner, who was recovering from [medical condition] surgery.
During 2014 I had to successively drop each unit of study, of which there was three in total, and were being undertaken by me through the Internet from Sydney where I was relocated as a consequence of my duty of care to my ex-partner. This role of carer I continue today. It was the reason why the University gave me an extension on my units of study. Having dropped the three units undertaken by me through the Internet, I then had to withdraw from the study abroad student exchange in the last months prior to the exchange.
There were two reasons for the withdrawals from my units of study and student exchange. One was my ongoing role of carer for my ex-partner. That however had been taken into account as a problem in the completion of my three units. The second reason that was the true cause of my withdrawals, was my involvement in my complaint lodged with the commission, reference number ………, and the subsequent acceptance of this unresolved complaint by ACAT. The respondent, just prior to the final hearing was (sic) settled out of court/tribunal.
In December 2016 I re-enrolled in my undergraduate course at the University of Canberra, and requested the faculty to allow me to complete my units of study that I failed to complete in 2014. I also requested the study abroad department recommence my application to the exchange university of 2014/15. As of 7/2/2017 the University faculty has refused my recommencement of my discontinued units of study, and therefore I am informed by the study abroad department that I failed to meet the criteria for student exchange, which is that I am not currently enrolled full-time at the University.
In summary, the University will not allow me to take up where I left off in 2014. I need to note that in the months prior to departure for study abroad (in 2014) I was in fact no longer enrolled full-time in any units of study. At that point I was enrolled in no units of study. I was however still allowed to continue with my exchange program. I had to withdraw from exchange, which was specifically because at that point I failed the government HECS exchange loan requirements. I failed this because I was one unit short in the required number of units for the loan of approximately $7,000. Without this loan I could not meet my budget requirements for one year study abroad, and so withdrew.
In summary also, the University will not allow me to recommence my study abroad application, because currently [9/2/2017] I am not enrolled full time in units of study as I have requested. My request is specifically to the University that I be allowed to recommence the units from 2014, now in first semester 2017, under the same conditions as in 2014, which means that I undertake these units through the Internet from Sydney, and therefore not attend on-campus. The faculty informs me that they do not conduct any units of study online via the Internet. I need to point out that in 2014 I was attempting to complete two units of study that had extensions and one further unit from my second year, that was not an extension and was offered to me to study if I wished, online via the Internet, even though it was not offered in the curriculum via the Internet on-line.
My complaint now is that I believe University is discriminating against me by not acknowledging the fact that the University is responsible from having prevented me from completing my units of study and therefore attending my study abroad program in 2014. The prevention arose from my involvement in the legal actions against the University of Canberra, accommodation subcontracted by Uni Lodge.
What effect did/will the conduct you are complaining about have on you?
In attempting to meet University academic requirements that is at least one further unit of study in my undergraduate course, I have had to endure $20,000 in rental costs in order to attend University of Sydney to accomplish one further unit. Which at this time I have before the University to be considered as a credit for prior learning unit to be added to my University of Canberra record. In attempting to attend further university studies in Sydney whilst continuing my caring duties for my ex-partner, I have endured considerable personal hurt perpetrated by University of Technology Sydney and University of Sydney. As an approximate understanding of damages for hurt, I request $15,000 for each of the years 2014, 2015, 2016 and $15,000 for this year 2017 which has been severely affected by the outcome of my application to the University of Canberra for studies in 2017, considering that I am still acting as a Carer in Sydney.
The direct impact in 2017 for myself and my ex-partner whom is in her late 70s, is that I am being prevented by the University of Canberra in continuing my studies is (sic) by prior arrangement in 2014. The consequence of this is that I do not to (sic) fill the study abroad student exchange requirements for my 2017 study abroad application, and therefore I am refused by University of Canberra to be allowed to continue my existing but temporarily withdrawn application for student exchange with University of Plymouth in 2014. This will prevent (sic) the last opportunity for my ex-partner to be able to travel and reside overseas before her death. The open question of length of life for her is moderated by the fact that she has had [medical condition] twice. If it is not already understood the intention as with 2014 is in 2017 for myself to attend study abroad student exchange and for my ex-partner to cohabit my accommodation abroad in order to continue receiving care from me. I point out that she cannot financially afford to have substitute care in Sydney if I were to be absent for one year abroad, and that she cannot financially afford to travel overseas in view of accommodation costs without my arrangement for accommodation above.
I further point out that my intellectual abilities, and my personality capacity to cohabit with other people, is on the timeline impacted by the psychological consequence of my [medical conditions] and my childhood experiences. My mental capacity is further limited by the impending family medical disorder of [medical condition].
As a consequence of the events in second semester 2013 I now receive ongoing treatment and medication from my [specialist] Dr McLean…
What would you like to have happen in order to resolve your complaint?
I was (sic) financial compensation for the costs and hurt that I have endured since 2013.
I primarily wish to complete my study abroad acceptance Plymouth University in the UK, originally arranged for one year from September 2014 to September 2015. This means that you (sic) to my medical circumstances that I wish to complete this from September 2017 to September 2018. Secondly I wish to continue my prearranged units of study from the University of Canberra to be completed via the Internet, online from Sydney. Due to the psychological disturbance accrued with my ongoing current interaction with the University of Canberra that has led to this complaint, I profoundly prefer to be allowed by the University of Canberra to complete these units from Sydney, online when I return from study abroad student exchange, which would be during second semester 2018 and the Christmas breach of 2018/19.
44.The Tribunal noted that the applicant stated in his complaint that he had endured considerable personal hurt perpetrated by University of Technology Sydney and University of Sydney and that he, as damages for that hurt, sought $15,000 for each of the years 2014, 2015, 2016 and 2017. Neither the University of Technology Sydney nor the University of Sydney are parties to the application before the Tribunal. The applicant does not disclose a nexus between his claims against these two universities for damages and the respondent to the current application.
45.Therefore, at the hearing on 18 January 2018 the Tribunal asked the applicant what orders he now sought. He said:
… My desired outcome is that the university undertake what it does with other students and that it makes an offer of Study Abroad available to all students and I would like them to make that offer available to me and to participate with me, as the university does with all other students but has not done so with me; in a not discriminatory manner (sic) has not done so with me.
I ask it to facilitate what it does with all other students that it doesn’t discriminate against and to progress the issue of my attendance with Study Abroad this year, September 2018, which I’m stating will require major disruption to the household and, therefore, require no last minute activity by the university. It requires responsible, professional behaviour by the university staff. That’s all I’m asking.
…
… It is sufficient redress.[11]
[11] Transcript of proceedings 18 January 2018, page 101 lines 44-45; page 102 lines 1-4 and lines 27-28
46.When asked by the Tribunal if he was seeking compensation from the respondent pursuant to section 53E(2)(c) of the HRC Act the applicant said:
I am not seeking compensation at this point.[12]
Particulars of the alleged unlawful discrimination in 2014
[12] Ibid, page 101 line 1
47.The applicant did not, in any of his documents or his evidence given to the Tribunal on 18 January 2018, provide actual details which would enable the Tribunal to make findings of fact in relation to the time and details of each act, fact, matter, circumstance or thing which, either individually or taken collectively, amounts to unlawful discrimination of which he complains.
48.A general overview of the applicant’s claim in relation to the alleged unlawful discrimination in 2014 can be found in his complaint to the Commission where he alleges that the respondent is discriminating against him by not acknowledging the fact that the respondent is responsible for having prevented him from completing his units of study and attending the study abroad program in 2014. It appears that the applicant alleges that he was prevented from completing the units of study in 2014 and from attending the study abroad program in 2014 because he had to bring legal action against the University of Canberra accommodation subcontracted by Uni Lodge to obtain a refund of his rent.
49.During the hearing the applicant variously told the Tribunal that when he was residing at Uni Lodge in 2013 he had been bullied, persecuted and discriminated against by students who were managing Uni Lodge. In 2014 he tried to recover the rent monies he had paid for his Uni Lodge accommodation. When he was unable to obtain a satisfactory resolution to this request he said he was forced to lodge a complaint with the Commission who subsequently referred the complaint to the tribunal. He said he was then forced by the respondent to proceed with the tribunal proceedings which ultimately settled in first semester 2014 just before the hearing.
50.He said that the actions he had to take in 2014 to obtain a refund of the rent were “imposed” on him by the respondent through Uni Lodge and “exaggerated” because, in the end, he had to institute proceedings in the tribunal.
51.It appeared to the Tribunal that the applicant was claiming that the respondent had discriminated against him by making him pursue his claim for the rent refund through the Commission and then the tribunal and that this took such a toll on him he was forced to withdraw from all of his units of study in 2014 which the respondent had agreed to him undertaking online. He said that process destroyed his studies; impacted on his caring responsibilities and tormented him.
52.When the Tribunal questioned his claim that the respondent was responsible for the actions of Uni Lodge in those 2014 proceedings the applicant claimed that the respondent was consulting Uni Lodge and Uni Lodge was consulting the respondent as to how they were going to deal with him and his seeking to have his rent returned for his stay at Uni Lodge.
53.The applicant did not provide any documentation relating to the ‘consulting’ referred to in the previous paragraph or in relation to his legal proceedings in 2014 against Uni Lodge notwithstanding that he was told at the hearing on 18 January 2018 that “I will certainly expect to see evidence as to how you say the university is liable for and responsible for what happened in that matter with Uni Lodge. All right. So could you make a note of that, please”.[13] At the hearing on 6 March 2018 the applicant said he did not understand that he had to provide this material because it was only background material to the current discrimination application.
[13] Transcript of proceedings 18 January 2018 page 101 lines 34 - 37
54.The fact is that the applicant provided no evidence that the respondent’s conduct at any time was connected in any way to Uni Lodge or to any action he may or may not have taken against a third party. Apart from the applicant the Tribunal was unaware of the names of any other parties to that litigation involving Uni Lodge and of any evidence purporting to establish that the respondent was connected to or involved in or liable for that litigation or those matters set out in [51] and [52] above.
55.One of the grounds relied on by the respondent in the strike out application is “The applicant has failed to provide any evidence to support the application.” The Tribunal agrees. The applicant did not provide any evidence to support his claim that the respondent unlawfully discriminated against him in 2014, in relation to the litigation he initiated against Uni Lodge.
Particulars of the alleged unlawful discrimination in 2017
56.The applicant claims that he was accepted by the respondent to re-enrol in 2016, but he did not actually attend university in 2017 because the respondent “stonewalled” him by preventing him from doing units online in 2017, notwithstanding the respondent had agreed to him doing these units online in 2014.
57.His request that the respondent allow him, in 2017, to complete his units of study online that he failed to complete in 2014[14] was refused by the respondent. He said he is unable to attend the courses on campus because of his ongoing caring responsibilities to his ex-partner in Sydney. In refusing his request to continue his study on line in 2017, he claimed that the respondent was engaging in unlawful discriminatory behavior because of his caring responsibilities. The Tribunal will return to this claim below.
[14] The applicant said he jettisoned each of these units.
58.The applicant also claimed that, because of the respondent’s discriminatory behaviour in refusing to allow him to study online in 2017, he was not currently enrolled full time at the university and his request to study abroad in 2017/2018 was refused because he failed to meet the criteria for student exchange in that he was not currently enrolled full time at the University of Canberra.
59.While the applicant told the Tribunal that he had completed one unit of study at Sydney University in 2016 and he was seeking credit with the respondent for prior learning so that he could meet the 1 EFTSL (Equivalent of Full Time Study Load) criteria for receiving an OS-HELP loan to study abroad, the fact is his request to study abroad in 2017/2018 was refused because he was not currently enrolled in full time study with the respondent, not because he had not provided satisfactory evidence of his prior learning at the University of Sydney.
60.The applicant conceded he had not provided documentary evidence of his study at the University of Sydney to the respondent until he provided it to the Tribunal on 6 February 2018. The Tribunal is satisfied and finds that his seeking recognition for prior learning is not the subject of the discrimination claim.
The respondent’s strike out application
61.The respondent relies on the following grounds in the interim application:
(a)The applicant has failed to comply with the orders of the Tribunal dated 9 October 2017 and 18 January 2018.
(b)The applicant has failed to particularise his application.
(c)The applicant failed to provide any evidence to support the application.
(d)The applicant admitted during the oral hearing on 18 January 2018 that the application was “unwinnable” and hopeless.
(e)The application is frivolous or vexatious, is lacking in substance and/or is otherwise an abuse of process within the meaning of section 32(1) of the ACAT Act.
62.The respondent relied on the witness statements it had filed from Professor Basson and Jessica Cronin. Professor Basson’s witness statement particularly referred to the applicant’s complaint that the respondent has discriminated against him on the basis of his personal attribute of being a carer for his ex-partner who lives in Sydney, by not allowing him in 2017 to continue online study for his units which he had commenced in 2013 and from which he withdrew in 2014 and for which he had been granted permission in 2014 to study online.
63.Professor Basson is the Associate Dean of Research and Head of School, Design and the Built Environment, Faculty of Arts and Design, University of Canberra. It is clear from his witness statement that the respondent’s course requirements are subject to scrutiny by external bodies. The course which the applicant had commenced in 2013 had undergone renewal. In 2015 new content requiring face to face attendance by students had been introduced to meet the requirements of the external accrediting board and the Standards of the Institute of Architects.
64.Professor Basson stated in his witness statement:
4.In my professional capacity I also participate in establishing the Australian Institute of Architects’ Policy on Tertiary Education of Architects and the Standards for Programs in Architecture. This policy is the criteria by which university courses in Architecture are assessed, recognized and accredited by the Australian Institute of Architects (Institute) and the Architects Accreditation Council of Australia (AACA) as empowered by the Commonwealth Government.
5.Graduates of an accredited program can seek to have their qualifications recognized by the Institute which leads to professional registration.
6.In my role I am directly responsible for ensuring the Respondent’s courses meet the Institute and AACA Accreditation Procedures as well as the Standards for Programs in Architecture (the Standards).
7.Relevantly, the Standards state at 2.4 that studio based (face to face) teaching is fundamental to educating students in architecture design. … [a copy of the Standards was attached to the witness statement].
8.In 2015 the Respondent’s courses were assessed through the Institute and AACA Accreditation Procedure. As a result of the views expressed in the report of the Visiting Panel, the Respondent increased the number of student contact hours for studio units from 4 to 6 hours each week to enhance learning through more face to face interactions. This change was important to retain accreditation and recognition of the AIA and AACA.
9.The respondent’s courses remain accredited and recognised by the Institute and the AACA.
65.Professor Basson also referred to the applicant seeking approval in January 2017 and February 2017 to undertake a unit of study, Design Studio on line, prior to enrolment and to his seeking, by email dated 15 January 2017, to recommence two units of study[15] which he had commenced in 2013 “exactly where he ceased”. In that email the applicant had claimed that: “In 2014 I was granted indefinite extensions in order to complete these two units from Sydney through the facility of the Internet.”
[15] Design Studio 1.2 and first year Design History
66.Professor Basson annexed copies of the relevant emails between 15 January 2017 and 3 February 2017 between the applicant and Erin Hinton, Lecturer, Design and Built Environment and Course Convenor for the Bachelor of Arts in Architecture at the University of Canberra. It was clear from these emails that the applicant was unable to recommence units of study commenced in 2013, from exactly where he ceased studying, as the course content had undergone renewal to meet the current requirements of the accrediting board.
67.The Tribunal noted from Professor Basson’s witness statement that the applicant had made further attempts to obtain approval for attendance online via the Student Advocacy Officer. Professor Charles Lemckert, Head of Discipline – Built Environment and Design, had emailed[16] the applicant in response and advised him the units he wished to undertake are not offered in Semester 1; they were only offered in Semester 2 in on-campus mode and could only be undertaken at that time. This email further advised the applicant that studio units are on-campus only; that they are highly interactive activities between staff and students that necessarily require on-campus attendance and participation. Professor Lemckert subsequently spoke with the applicant on 17 February 2017. By email dated 21 February 2017 Professor Lemckert advised the applicant that he needed to submit his complaint in accordance with the student grievance resolution policy. The applicant subsequently appealed the Faculty decision not to permit him to undertake Design Studio unit online.
[16] Dated 15 February 2017
68.On 3 May 2017 the Dean of the Faculty of Arts and Design, Professor Lyndon Anderson, notified the applicant by letter that the respondent upheld the Faculty decision not to permit him to undertake the Design Studio unit on line. It also, relevantly, stated that the arrangement for him to study online in 2014 was a temporary arrangement; noted that the applicant did not complete the two units in which he was enrolled in Semester 1, 2014 even though he was able to study it online and stated that “It was never possible for you to complete the course[17] from Sydney due to the extensive number of On Campus Studio units in the program.”
[17] Bachelor of Arts in Architecture
69.Professor Basson also annexed correspondence to his witness statement which detailed the options the respondent afforded to the applicant in November 2014 to resolve the completion and results of the semester 2013 units. The letter to the applicant dated 24 November 2014 set out three options available, and by email dated 29 November 2017 to the respondent, the applicant accepted option 3 which required the applicant to complete the required assessments by week 2 of semester 1 in 2015. There is no dispute that the applicant did not comply with this arrangement. He did not complete the requisite assignments for the studio units by week 2 of Semester 1 in 2015 or at all. The Tribunal is satisfied and finds that the respondent did not provide the applicant with “indefinite extensions” as alleged by the applicant.
70.In her witness statement Jessica Cronin, Manager Global Mobility, University of Canberra Study Abroad Office, Global Student Recruitment, for the respondent referred to the applicant’s complaint that the respondent has discriminated against him in relation to his application to study abroad in 2014 and in 2017.
71.Ms Cronin stated that she is directly responsible for delivery of services to students including overseeing the office that administers (i) overseas study options for the University of Canberra students, including semester and year-long exchange; and (ii) Commonwealth OS-HELP loans to eligible students who meet the government and University of Canberra requirements for being awarded a loan. She annexed the ‘Statements of Terms and Conditions’ for the Commonwealth OS-HELP Loans applicable in 2014 and in 2017.
72.Ms Cronin stated that while she did not correspond with the applicant about this loan in 2014 she had reviewed the correspondence between him and her colleagues in the University of Canberra Study Abroad and Exchange Office during that time. Due to the applicant’s lack of enrolment at the University of Canberra, as he had withdrawn from each of the units in 2014, and his failure to achieve 1 EFTSL he did not meet the mandatory requirements in 2014 to receive an OS-HELP Loan.[18] They were the reasons why the respondent refused to proceed with the application.
[18] The requirements were (a) Enrolled in a course of study as a Commonwealth Supported Student (with a University); and (b) Have already undertaken units to the value of at least one year EFTSL in Australia; and (c) be undertaking full-time study overseas; and (d) the overseas study must count towards the course in which the student is enrolled.
73.Relevantly, Ms Cronin stated in relation to the applicant’s 2014 application for the OS-HELP loan (annexures not included in decision):
15.In my view the correspondence demonstrates that the Applicant understood the requirements for OS-HELP loans as well as in country requirements and that he has repeatedly sought out ways to obtain an OS-HELP Loan despite knowingly not meeting the requirements in order to find a way to study abroad.
16.On 18 March 2014, the Applicant emailed the UC Study Abroad and Exchange Office expressing interest in a particular program in Rome. In that email the Applicant acknowledges the requirement to attain 1 year EFTSL. Our office confirmed this understanding by reply email. This correspondence is attached at Annexure C.
17.On 30 March 2014 the Applicant emailed the UC Study Abroad and Exchange Office stating “it may be necessary for me to undertake less than the usual number of modules” (units) in relation to an overseas exchange he was exploring at Plymouth in the UK. In the same chain of correspondence, on 25 April 2014, the Applicant states that he was going to enter the UK under a non-student visa “in order to avoid any problems that may occur in UK law regarding not undertaking a full-time study load.” This correspondence is attached at Annexure D.
18.On 8 July 2014 the Applicant sent correspondence to the Study Abroad Office which demonstrates his knowledge that he did not meet the criteria for OS-HELP Loan to attend Plymouth. This is confirmed by the Respondent by return email dated 10 July 2014. This correspondence is attached at Annexure E.
19.On 11 July 2014 the Applicant sent correspondence to the Study Abroad Office which demonstrates his efforts to convince the Respondent to tell the Commonwealth that he meets the OS-HELP criteria despite it being untrue. The Respondent refused to provide this false information to the Commonwealth and again explained the requirements. This correspondence is attached at Annexure F.
20.The Applicant sent a letter to the Respondent dated 19 July 2014 complaining about the Respondent refusing to grant his OS-HELP Loan as well as various complaints about the conduct of the University of Plymouth and other ancillary matters. On 14 October he made a further complaint dated 14 October 2014. This correspondence is attached at Annexure G.
74.Ms Cronin then set out details of the respondent’s dealings with the applicant in relation to his formal grievance lodged on 14 October 2014. The formal grievance related to a number of matters including his accommodation at Plymouth University, which the Dean of Students had already responded to when it was subject to an earlier grievance and also including issues he raised in relation to Uni Lodge accommodation which had been dealt with in an earlier complaint and resolution by the Students Appeals Committee.
75.Ms Cronin annexed a copy of an email from Glynis London, Director of UC International, University of Canberra on 25 November 2014 to the applicant which replied to the applicant’s complaints in relation to his attempt to secure credit for prior learning and to his becoming aware in June 2014 that he did not qualify for a government loan. Relevantly her email stated:
… Study Abroad and Exchange is not responsible for the study plan/credit outcomes or for the policies or procedures applied to study load and credit assessment. It is responsible for supporting you through this process. I note the staff of SAEX were prompt to reply to your queries and prompt to action your requests. Additionally the tone of their emails indicate that they were sympathetic to your circumstances. It is my determination that the Study Abroad and Exchange unit provided you with sufficient support in this matter consistent with their role.
… When you first applied for Exchange in July 2013 you were aware of the 24 credit point requirement and you had stated to Study Abroad and Exchange that you would meet that requirement by December 2013. On 18 March 2014 you also indicated your understanding of this requirement. It is my determination that the Study Abroad and Exchange unit had provided you with the required information well in advance of June 2014 for you to be aware of your eligibility.
You did write on 11 July 2014 requesting a review of your eligibility for OS-HELP as indicated by you the University has some discretion in administering the loan. It is my determination that the response you received the same day from Study Abroad and Exchange is consistent with student eligibility as stated in the Higher Education Act 2003 Section 118.
76.The Tribunal noted that the guidelines for eligibility for the OS-HELP Loan are strictly set by the Department of Education and state that to be eligible a student must have already completed at least one EFTSL of study in Australia that counts towards the student’s course of study as a Commonwealth Supported student. The Tribunal further noted that the eligibility guidelines do not state “a year of full time study” – which would allow for 6 (0.75 EFTSL) to 8 (1.0 EFTSL) units of study. The requirement is that a student must have completed at least one EFTSL. Each unit is worth 0.125 EFSTL, and 1 EFSTL is a full 8 units of study.[19]
[19] Letter emailed to applicant from Jess Bromhead, Student Abroad and Student Mobility Coordinator 11 July 2014 Annexure F witness statement of Jess Cronin
77.The applicant subsequently lodged an appeal disputing the decision of the Director of UC International dated 25 November 2014 on the grounds that his claims were not fully addressed. By letter to the applicant dated 24 December 2014[20] Associate Professor Michele Fleming, Dean of Students, advised him that the Committee unanimously agreed to dismiss his appeal and the decision of the Director UC International – Study Abroad and Exchange should stand. She stated:
In considering your appeal the Committee noted the information you provided as part of your appeal, relevant policies, procedures and statements from various departments. The Committee noted that issues of your accommodation at Plymouth University and Uni Lodge were subject to earlier grievances and will not be further reviewed.
The Committee noted that you sought a review of the outcome of your recent appeal to the Director of UC International – Study Abroad and Exchange lodged on 14 October 2014. In your appeal you requested that the University supplies in writing a letter where it accepts responsibility for your failed study abroad application.
The Committee examined the evidence and determined that the Study Abroad and Exchange office followed your requests and assisted you in your application for credit with the University of Plymouth and during your application for the Government grant. Furthermore, the Committee noted that you voluntarily withdrew your application to study abroad after failing to secure a government OS-HELP loan and your ISEP application fees were reimbursed. The Committee has examined your claims thoroughly and found no evidence that University policies have not been followed or any evidence that your claims were not properly considered or answered by the relevant administrative entities during your appeal to the Director of UC International-Study Abroad and Exchange.
[20] Annexure J witness statement Jess Cronin
78.The tribunal has exercised its powers under section 32(2)(b) of the ACAT Act in a number of decisions which include Gindy, Gardner and Council of the Law Society in the ACT & The Legal Practitioner[21] (ACT Law Society). These three decisions identify the circumstances in which the tribunal will exercise its powers under section 32(2)(b) to dismiss an application where:
[21] [2011] ACAT 49
(a)the application is foredoomed to fail (as in Gardner);
(b)there is a cause of action which has no reasonable prospect of success (as in ACT Law Society); and
(c)there is no arguable case (as in Gindy).
Study Abroad and the OS-HELP loan 2014 and 2017
79.It is not in dispute that the applicant had not completed 1 EFTSL or 8 units of study in 2014. He was not eligible for the OS-HELP loan. He acknowledged this in his email to Jess Bromhead dated 19 July 2014 when he withdrew his application to study abroad in 2014/2015 and requested the refund of his ISEP application fee. This fee was refunded to the applicant.
80.The Tribunal is satisfied, having considered each of the factors in [33] above and all of the material before it, that there is no arguable case in the applicant’s claim of unlawful discrimination in relation to his applying for the OS-HELP loan in 2014. The application has no reasonable prospects of success and is foredoomed to fail.
81.The applicant also claims that the respondent discriminated against him when he again requested by emails to the University of Canberra Study Abroad Office dated 26 January 2017 and 6 February 2017 that the respondent proceed with his exchange application and the respondent advised him that he was not eligible.
82.The respondent emailed the applicant on 7 February 2017, set out the criteria he needed to meet and the email address where the eligibility criteria are found.[22] This email advised the applicant that the respondent “will not be able to progress you to the interview phase, or nominate you through ISEP as you are not currently eligible to participate in the exchange for Semester 2 2017.”
[22] a formal grievance dated 6 April 2017 the applicant stated:[23]:
The University of Canberra needs to allow me to go on exchange even though I am not studying FT in Semester 1 2017. This is not my fault but UC’s as there has been no offer for me to continue on with my study from 2014. I cannot back down against an educational institution that is causing so much distress to myself and my ex-partner, whom would be coming with me to Plymouth had UC not dragged its heels.
…
Due to the University’s gross ineptitude and discrimination against me I believe it is no longer feasible for me to be enrolled in units; due to my health and the psychological impact this has caused. The outcome I wish, is for Study abroad to change their processes and procedures and for me to be considered to be a viable candidate (as I was in 2014) for the exchange program, while taking into account the fact that I will not be enrolled in any units.
The way I have been treated can only be described as rampant, unlawful discrimination. I want the University to repent for the harm this has caused both me and my ex-partner and the fact that I will not be given my rightful opportunity to go to Plymouth University. The University needs to provide compensatory measure to this effect.
… (emphasis in original)
[23] Applicant’s formal grievance form dated 6/04/2017. Annexure N in Jess Cronin’s witness statement
84.Glenys London, Director, UC International replied to the applicant’s formal grievance by letter dated 3 May 2017. It stated:
Prior to receiving you (sic) letter of complaint you had requested that the Study Abroad Office reinstate your application for an exchange with New Plymouth University (UK) through our arrangements with ISEP. You have correctly identified that we did not proceed as:
· You are not currently enrolled in any units of study, and
· You do not meet the full-time study criteria to be eligible for an exchange place.
Your request in your formal grievance is for the Study Abroad team to proceed with your application even though you are not enrolled in any units of study and do not meet the full-time study criteria for an overseas study program. As you do not meet the eligibility criteria, your request to undertake study abroad program is denied.
The eligibility criteria for studying abroad were established to ensure that a student has a successful study experience and can manage the academic, social and financial challenges of studying in an offshore location.
85.During the hearing on 18 January 2018 the applicant said that in December 2016 he made an online application to be accepted into a Bachelor of Arts in Architecture with the respondent and had received an offer.[24] The applicant asserted that, therefore, he was enrolled at the University of Canberra in 2016 and 2017.
[24] Annexure K to Jess Cronin’s witness statement
86.However, Ms Cronin stated in her witness statement that such applications are processed through the Universities Admission Centre, not by the respondent. The offer the applicant received dated 16 December 2016 was an automatically generated offer from the respondent. This offer stated that it is conditional and subject to the applicant’s acceptance and enrolment.
87.According to the respondent’s records the applicant was not enrolled with the respondent in 2016 or at the relevant time in Semester 1 2017. This was corroborated by the applicant’s University of Canberra academic history which was provided to the Tribunal and which was printed on 14 August 2017 and showed “no progression recorded” for 2013 and 2014 and the credits he had received for prior learning in 2012 and 2013 which totaled 21 points.[25]
[25] Annexure L Jess Cronin witness statement at [29]
88.While the applicant said he had informed the respondent of his prior study in 2016 at the University of Sydney he conceded at the hearing that he did not provide the respondent with his 2016 ‘Course Result History’ from that university. It was not provided to the respondent until 6 February 2018 when requested by the Tribunal. It was not evidence that he was enrolled with the respondent in 2016 or 2017. Its relevance was that it would enable him to meet the requirement for 1 EFTSE for applying for an OS-HELP loan if he applied to study abroad.
89.The Tribunal, therefore, is satisfied and finds that the applicant was not enrolled in any units of study with the respondent in 2016 and in 2017. He did not meet the full time study criteria to be eligible for the Study Abroad program. He conceded this in his formal grievance lodged on 6 April 2017 which asked “Course in which you are enrolled” and he wrote “not currently enrolled”. The respondent correctly applied the eligibility criteria to his application and he failed to meet that criteria.
90.Having considered each of the factors in [33] above and for the above reasons the Tribunal is satisfied and finds that the applicant’s claim of unlawful discrimination in relation to his applying for the Study Abroad program in 2017 does not disclose a reasonable cause of action. It is misconceived. It is foredoomed to fail.
Online study request in 2017
91.The applicant also claimed the respondent had engaged in unlawful discrimination against him because it refused his request, in 2017, to be able to continue his on line study of the units which the respondent had, in 2014, agreed to him undertaking on line. The respondent relied on his caring responsibilities and his disability as the protected attributes.
92.The applicant said that the respondent ‘stonewalled’ him from actually attending the University of Canberra in 2017 by preventing him from studying online by refusing to extend the extension which it had afforded to him in 2014.
93.The Tribunal refers to [64] above where the Tribunal has set out statements by Professor Basson in his witness statement. The Tribunal is satisfied and finds that the respondent’s Bachelor of Architecture and Environments course changed in 2015 to ensure that the respondent retained accreditation and recognition with the Australian Institute of Architects (AIA) and the Architects Accreditation Council of Australia (AACA). As a result the respondent increased the number of student contact hours for the studio units which required on campus face-to-face interactions. This requirement could not be met through online study for the studio units.
94.Professor Charles Lemckert also articulated this clearly and unambiguously in his email to the applicant referred to in [67] above.
95.In the letter to the applicant dated 3 May 2017 the Dean of the Faculty of Arts and Design, Professor Lyndon Anderson, also clearly and unambiguously said that the 2014 arrangement was a temporary arrangement and that it was never possible for the applicant to complete the course from Sydney due to the extensive number of on campus studio units in the program.
96.Having considered all of the evidence and submissions the Tribunal is satisfied and finds that the arrangement in 2014 for the applicant to study online was temporary; that the architecture course changed in 2015 to ensure that the respondent retained accreditation and recognition with the AIA and AACA such that the number of student contact hours for the studio units which required on campus face-to-face interactions increased and this requirement could not be met through on line study for the studio units.
97.The Tribunal is also satisfied, for the above reasons, that the respondent was not able to decide whether a class not be taught face to face, as alleged by the applicant. The respondent has to comply with the AIA and AACA’s requirements to meet their accreditation requirements and to ensure that its students are able to obtain professional registration at the completion of their courses. This change took effect in 2015 and continues.
98.The applicant is asking the Tribunal to make orders that the respondent cannot comply with.
99.Having considered each of the factors in [33] above and for the above reasons the Tribunal finds that there is no arguable case in the applicant’s application that the respondent treated him unfavourably by refusing to agree to his request in 2017 that he be allowed to continue from where his 2014 studies left off and that he do so online. That option was not available to the respondent. The application has no reasonable prospects of success and is foredoomed to fail.
Claim of Victimisation
100.While the applicant did not complete Part E of the complaint to the Commission in relation to victimisation, at the hearing on 18 January 2018 when the Tribunal asked the applicant whether he was pursuing a claim for victimisation he told the Tribunal that he was and this claim was based on the respondent’s behavior to him over his claim against Uni Lodge in 2014 in which he sought and obtained a refund of the rent he had paid. He submitted he was treated in a way that he was an “opponent” by having taken the respondent to the Commission and the tribunal. When asked for details of this claim of victimisation, the applicant told the Tribunal that it was “inherent in the documents he had already provided.”
101.While the applicant, in his oral evidence, alleged he had a “feeling” about being victimised, he could not point to any evidence of this.
102.The Tribunal refers to [52], [53] and [54] above. The applicant did not provide any documentation to the Tribunal which related to his claim for a refund of his rent from Uni Lodge. In those circumstances the Tribunal is satisfied and finds, from the available evidence, that there is no arguable case in this claim of victimisation. It is also foredoomed to fail.
Conclusion
103.Having considered each of the factors in [33] above and for the above reasons the Tribunal is satisfied that, pursuant to section 32 of the ACAT Act, the applicant’s application should be dismissed. It does not have reasonable prospects of success. To proceed with his application would be an improper use of the tribunal’s processes.
Other matters
104.There was no dispute that the applicant was suffering from a disability in that he had been diagnosed with [a medical condition]. The applicant had provided the respondent with a 2012 letter from Dr Baker, [specialist], confirming this diagnosis. He also provided the Tribunal with a more recent letter dated 29 January 2017, from Dr McLean, [specialist], supporting this diagnosis.
105.However, the applicant’s reliance on the protected attribute as a carer for his ex-partner was troubling. He did not provide any documentary evidence of this claim until 6 February 2018 in compliance with directions the Tribunal made on 18 January 2018 at the conclusion of the first day’s hearing.
106.The applicant said he was not receiving Carer Allowance from the Government because his ex-partner felt uncomfortable about him applying for it. If he had applied for Carer Allowance it would have required, at a minimum, the provision of a medical report from the care receiver’s treating health professional, financial tests and proof of residence. Although he confirmed that his partner attended multiple general practitioners he did not provide the Tribunal with a letter from one of these general practitioners attesting to the applicant being her carer. It was not apparent if his ex-partner currently has a treating health professional who could have provided such a report.
107.Instead, he provided two letters in relation to his being a carer; one from Vipu Jogia, pharmacist-in-charge at Chen’s Pharmacy, who said he had known the applicant and his ex-partner for the last nine years and knew that the applicant had returned to Sydney in February 2014 to live permanently there to assist her following a [medical condition] operation and an accident where she crushed her sciatic nerve. The pharmacist also stated that the applicant’s ex-partner has a [physical disability] and that the applicant does many things for her including heavy shopping, washing, housework, chores in the garden and other tasks beyond her ability.
108.In the second letter, Dr Michael Levitt, a dental surgeon, stated that the applicant assists his ex-partner to attend his surgery and helps her with all her physical needs for the past three years.
109.Given the Tribunal’s decision to strike out the application pursuant to section 32 of the ACAT Act, it is not necessary for the Tribunal to determine whether the applicant has produced sufficient evidence to satisfy the Tribunal that he is a carer for his ex-partner.
110.At the hearing on 18 January 2018 the applicant told the Tribunal that in 2014 he had made contact with two solicitors, or people he presumed were solicitors, one in the ACT and one in New South Wales for advice. The NSW solicitor identified:
…problems with interstate action and the other basically denied, was not prepared to give me any further reply because she didn’t - she wasn’t impressed with this current complaint, and that it was a winnable position and so she was not prepared to give advice on it, which I don’t think is ethical.[26]
…she had given me advice previously, she was not prepared to give me advice on this issue because she considered it unwinnable. So I come to you today understanding that I am in an unwinnable position.[27]
[26] Transcript of proceedings 18 January 2018, page 78 lines 36-40
[27] Ibid page 79 lines 15-18
111.Unfortunately for the applicant, this solicitor’s advice has proved correct.
Conclusion
112.The Tribunal is satisfied and finds that the respondent has discharged the onus on it and established that the applicant has no arguable case.
113.The Tribunal has found that the application has no reasonable prospects of success and is foredoomed to fail. As set out in [31] above, it is therefore frivolous and vexatious and the Tribunal will order that it be dismissed.
…………………………………
Presidential Member E Symons
HEARING DETAILS
FILE NUMBER:
DT 11/2017
PARTIES, APPLICANT:
Scott Mewett
PARTIES, RESPONDENT:
University of Canberra
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
Ms Amy Kilpatrick
TRIBUNAL MEMBERS:
Presidential Member E Symons
DATES OF HEARING:
18 January 2018, 6 March 2018
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