Pojohishgar v University of Canberra (Discrimination)
[2022] ACAT 53
•21 June 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
POJOHISHGAR v UNIVERSITY OF CANBERRA (Discrimination) [2022] ACAT 53
DT 58/2021
Catchwords: DISCRIMINATION – where the applicant made complaints about direct and indirect discrimination by the University – where the applicant claimed that he was treated unfairly by being failed in ‘Criminal Law and Procedure’ twice in two years – where the applicant claimed that he was treated that way because of his race – where the applicant claimed that he was indirectly discriminated against by being required to sit a deferred exam – where the applicant claimed that he was indirectly or directly discriminated against by being required to prepare a written submission substantiating complaints of unfair marking – where the applicant claimed that he was directly discriminated against by having his formal grievance application and the subsequent appeal dismissed on the grounds of academic judgment – where parts of the application were dismissed on the first day of the hearing under section 32(2)(b) of the ACAT Act – where the applicant failed to appear on the second day of the hearing and requested that the proceedings be transferred to the Supreme Court – where the Tribunal refused the request and decided to proceed in the absence of the applicant – where the applicant has failed to satisfy the onus of proof in section 53CA(2) of the Human Rights Commission Act 2005 for a rebuttable presumption to arise that any direct or indirect discrimination has occurred – application dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 32, 47A, 83
Discrimination Act 1991 ss 4A, 7
Human Rights Commission Act 2005 ss 53A, 53CA, 53E
Cases cited:Applicant 202053 v Employers Mutual Ltd [2022] ACAT 9
Casino Canberra Ltd v Kidman [2022] ACAT 22
Tribunal:Senior Member M Orlov
Date of Orders: 21 June 2022
Date of Reasons for Decision: 21 June 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 58/2021
BETWEEN:
SALAM POJOHISHGAR
Applicant
AND:
UNIVERSITY OF CANBERRA
Respondent
TRIBUNAL:Senior Member M Orlov
DATE:21 June 2022
ORDER
The Tribunal orders that:
The remaining parts of the application (being those parts that were not dismissed by the orders made on 10 May 2022) are dismissed.
………………………………..
Senior Member M Orlov
REASONS FOR DECISION
Introduction
This case concerns a complaint about direct and indirect discrimination by the University of Canberra, where the applicant was enrolled in a course of study. The applicant’s core complaint is that he failed a subject twice. He says he was treated unfairly because a fail grade did not reflect the standard of his academic performance in the several assessment pieces that contributed to his overall mark. He sought to challenge the results but claims that he was treated unfairly by various persons in the University hierarchy who were involved in the review process.
It bears emphasising that being treated unfairly is not the same thing as being discriminated against. In the eyes of the law unfair treatment is discrimination only if there is a direct causal connection between the treatment,[1] or the resulting disadvantage where the treatment involves the imposition of a requirement or condition,[2] and a protected attribute of the complainant – be it the person’s race, disability, age, gender identity or any other protected attribute listed in section 7 of the Discrimination Act 1991 (Discrimination Act).
[1] where the complaint is about direct discrimination
[2] where the complaint is about indirect discrimination
In this case, the applicant claims that he was treated unfairly, and was disadvantaged by requirements imposed on him, because of his race.
The case highlights the importance for a person who complains that they have been discriminated against, whether directly or indirectly, to carefully consider at the outset whether they can present evidence to satisfy the minimum evidentiary threshold to establish causation in a complaint about discrimination and the consequences if they fail to do so. The minimum evidentiary threshold is set out in section 53CA(2) of the Human Rights Commission Act 2005, which provides:
(1) This section applies to a discrimination complaint, referred to the ACAT under this division, about discrimination by a person against another person by –
(a)treating, or proposing to treat, the other person unfavourably because of a protected attribute of the other person (direct discrimination); or
(b)imposing, or proposing to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because of a protected attribute of the other person (other than a condition or requirement that is reasonable in the circumstances) (indirect discrimination).
(2) It is a rebuttable presumption that discrimination has occurred if the complainant –
(a)establishes that –
(i)for a complaint about direct discrimination – the treatment or proposed treatment is unfavourable; and
(ii)for a complaint about indirect discrimination – the condition or requirement has, or is likely to have, and effect of disadvantaging the other person; and
(b)presents evidence that would enable the ACAT to decide, in the absence of any other explanation –
(i)for a complaint about direct discrimination – that the treatment or proposed treatment is because of a protected attribute of the other person; or
(ii)for a complaint about indirect discrimination – that the effect of disadvantaging the other person is because of a protected attribute of the other person.
(3) The presumption under subsection (2) is rebutted if the person complained about establishes that –
(a)for a complaint about direct discrimination – the treatment is not because of a protected attribute of the other person; or
(b)for a complaint about indirect discrimination – the effect of disadvantaging a person is not because of a protected attribute of the other person.
(4)In this section:
protected attribute means a protected attribute under the Discrimination Act 1991.
An applicant must establish both of the matters in subsections (2)(a)(i) and 2(b)(i) for a complaint of direct discrimination, and both of the matters in subsections (2)(a)(ii) and (2)(b)(ii) for a complaint of indirect discrimination. It is the experience of the tribunal that persons seeking to vindicate a complaint about direct or indirect discrimination, frequently focus most of their attention on proving the matters in subsections (2)(a)(i) and/or 2(a)(ii) – i.e. they focus on how they have been treated – and fail to give sufficient attention to presenting evidence of causation. In a complaint of direct discrimination, the issue of causation may be framed as a question – Why was the person treated that way? In a complaint of indirect discrimination, the issue of causation may be framed as a question – Why was the person disadvantaged by the condition or requirement imposed on them? Unless an applicant presents evidence that would enable the tribunal to decide, in the absence of any other explanation, that the question should be answered ‘because of the person’s protected attribute’, the respondent has no case to answer. The complaint must be dismissed without the respondent being required to go into evidence.
As I will explain that outcome was inevitable in this case.
Background and procedural history
The applicant, Salam Pojohishgar, was a student enrolled in the Bachelor of Laws degree at the University of Canberra. In semester 2 of 2019, he failed ‘Criminal Law and Procedure’, receiving an overall mark of 45/100. The unit convenor at the time was Dr Brendon Murphy. Mr Pojohishgar repeated the unit in semester 2 of 2020. He failed the unit again, receiving an overall mark of 42/100. The unit convenor this time was Dr Tony Krone. Mr Pojohishgar believed that he was treated unfairly and that he should have been given at least an overall pass mark by Dr Murphy, and subsequently by Dr Krone. He was unhappy with the feedback he received and brought his complaint to the attention of the Head of the Law School, Professor Alison Gerard, in January 2021. However, Professor Gerard agreed with Dr Krone’s marking and feedback. Mr Pojohishgar then sought to pursue the matter through the University’s formal grievance process. The Associate Dean dismissed the application and Mr Pojohishgar’s subsequent appeal to the University Student Appeals Committee was dismissed in early April 2021.
Following the dismissal of his appeal, Mr Pojohishgar made a wide-ranging complaint to the Human Rights Commission of discrimination against him by the University in the area of education on the grounds of his ‘profession, trade, occupation or calling’ and race, and racial vilification.
On 15 October 2021, the Human Rights Commission referred the complaint of unlawful discrimination to the ACAT pursuant to section 53A of the Human Rights Commission Act 2005 (HRC Act).
On 12 November 2021, as is usual in discrimination complaints referred to the ACAT, the tribunal directed Mr Pojohishgar to file and serve a document setting out each act, fact, matter, circumstance or other thing which, either individually or taken collectively, amounts to unlawful discrimination or racial vilification under the Discrimination Act 1991 and which was the subject of the complaint to the Human Rights Commission. He was also directed to file a document setting out the orders he said the Tribunal should make.
Mr Pojohishgar filed and served such a document on 26 November 2021, described as ‘Submissions to the ACT Civil & Administrative Tribunal’. The document outlined the contentions of fact and law on which Mr Pojohishgar intended to rely to establish complaints of direct and indirect discrimination by employees of the University, for which he said the University was legally liable. The allegation of racial vilification was not maintained. The document also set out the orders Mr Pojohishgar sought from the tribunal. One of the orders was that there should be an independent academic review of all of Mr Pojohishgar’s assessment papers since 2019.
I will refer to this document as ‘the Contentions’.
The University filed a response on 7 January 2022 in which it said that some of the allegations in the Contentions were outside the scope of the complaint referred to the ACAT pursuant to section 53A of the HRC Act, submitting that the Tribunal does not have jurisdiction to decide those matters. As will appear, I have not found it necessary to decide this issue. Where the Tribunal’s jurisdiction was not in issue, the University denied discriminating against Mr Pojohishgar and submitted that he had not discharged the onus of proof required to establish a rebuttable presumption that discrimination has occurred pursuant to section 53CA of the HRC Act.
With respect to the order that the applicant’s assessments should be re-marked, the University’s response acknowledged that such an order may be available under section 53E of the HRC Act, but only if the applicant established that unlawful discrimination has occurred.
After mediation was unsuccessful in resolving the dispute, the application was listed for hearing before me on 10 and 11 May 2022. In accordance with procedural directions made earlier, the parties filed their evidence and written submissions in advance of the hearing.
As well as the Contentions, Mr Pojohishgar filed and served written submissions on 21 March 2022 and 2 May 2022. These were not treated as evidence.
The University filed and served witness statements by Professor Alison Gerard and Dr Tony Krone, and expert reports by Michelle Edgley, Professor Michael Adams and Dr Eric Ghosh. As events transpired, the University was not required to go into evidence. The reason for this will appear shortly.
At the start of the hearing, Mr Pojohishgar confirmed that the only relevant protected attribute on which he relied was ‘race’. He also confirmed that he had considered section 53CA of the HRC Act and believed he could satisfy the onus of proof. I discussed with Mr Pojohishgar in some detail each complaint about discrimination set out in the Contentions, to confirm whether he alleged that direct discrimination, indirect discrimination, or both, had occurred and to identify the evidence he intended to present to satisfy the onus of proof in section 53CA(2) of the HRC Act.
In relation to some complaints against Dr Krone and Professor Gerard, and the complaints against the Associate Dean and the University Student Appeals Committee, Mr Pojohishgar conceded that he could not present any evidence to satisfy section 53CA(2)(b). After the considering the matter over the adjournment for lunch, I made orders under section 32(2)(b) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) dismissing the complaints on the grounds that they lacked substance. I gave brief oral reasons at the time[3] but indicated that I would expand on them later. I do so later in these reasons.
[3] Transcript of proceedings 10 May 2022, page 46
In relation to the remainder of the complaints, Mr Pojohishgar identified the evidence he intended to present to satisfy the onus of proof in section 53CA(2). I explained that the sufficiency of the evidence to satisfy the onus of proof was a matter for submissions after I had heard his evidence. The hearing proceeded on that basis.
Mr Pojohishgar’s evidence in chief consisted of:
(a)an indexed (unpaginated) bundle of documents numbered 1 to 17, including a two-page, witness statement (exhibit A1);
(b)a three-page document identified as an incomplete copy of the applicant’s ‘Final Assessment dated 11/11/19’ produced by the University in answer to a subpoena (exhibit A2);
(c)a three-page document identified as ‘Marking criteria and feedback by Dr Murphy’ for Assessment Task 2 (exhibit A3);
(d)a two-page document identified as a Proof of Enrolment letter from the University of Canberra dated 6 December 2019 (exhibit A4);
(e)a two-page document showing credits completed by the applicant towards the Bachelor of Laws degree (exhibit A5).
Mr Pojohishgar also sought to tender an unindexed bundle of documents comprising (omitting duplications):
(a)the University’s ‘Academic Freedom Policy’ published on 17 December 2020 (4 pages);
(b)the University’s ‘Academic Progress (for Coursework Students) Procedure’ published on 7 February 2018 (12 pages);
(c)the University’s ‘Charter of Conduct and Values’ published on 11 December 2015 (4 pages);
(d)the University’s ‘Fraud and Corruption Control Plan’ published on 13 February 2020 (12 pages);
(e)‘Higher Education Standards Framework (Threshold Standards) 2021’ (Compilation No. 1 as of 9 December 2021) made under section 58(1) of the Tertiary Education Quality and Standards Agency Act 2011 (Cth) (28 pages);
(f)the University’s ‘Human Rights and Discrimination Policy’ published on 15 April 2016 (6 pages);
(g)the University’s ‘Measures of Academic Achievement Policy’ published on 4 June 2018 (3 pages);
(h)the University’s ‘Measures of Academic Achievement Procedure’ published on 4 June 2018 (3 pages);
(i)the University’s ‘Performance Expectations Policy’ published on 6 August 2018 (4 pages);
(j)the University’s ‘Privacy Policy’ published on 12 September 2018 (23 pages);
(k)the University’s ‘Responsible Conduct of Research Policy’ published on 28 June 2019 (5 pages);
(l)Griffith University’s ‘Assessment Procedure for Students’ effective from Trimester 2, 2021 (19 pages);
(m)the University’s ‘Charter of Conduct and Values’ published on 11 December 2015 (4 pages);
(n)the University’s ‘Student Charter’ published on 12 October 2010 (4 pages);
(o)the University’s ‘Student Grievance Resolution Policy’ published on 16 September 2016 (10 pages); and
(p)the ‘Australian Code for the Responsible Conduct of Research’ published in 2018 by the National Health and Medical Research Council (10 pages).
Asked to explain the relevance of the documents, Mr Pojohishgar said he had referred to some of them in his written submissions. For example, in relation to the Higher Education Standards Framework (Threshold Standards) 2021 (Cth)[4] he wrote:
[4] Incorrectly identified as the Tertiary Education Quality and Standards Framework (Threshold Standards) 2021 (Cth) in the applicant’s ‘Response to the respondent’s amended submission’ filed on 21 March 2022 at [2] and footnote 2
2) The TEQSA establishes a standard that was Imposed by the Higher Education…which evaluates the progression and learning outcomes of the students at University level.
The TEQSA has very explicit standard about satisfactory Academic Progress for each course of study which are the following:
1) The student obtained specific knowledge of the required unit and gained the skills to be able to apply in a practice
2) General skills and their application in the area of practice
3) Knowledge and skills considered essential for employment and further study and;
4) Independent skills, analytical and mental ability to be suitable for life-long learning.
A. To apply the above standard to the facts, the applicant obtained specific knowledge, skills and he is well aware of their application in different areas of law, as well as their use for employment, legal practice and further study;
B. The applicant is able to practice those analytical skills and apply them independently.
C. In addition, the applicant has demonstrated sufficient knowledge and skill that was consistent with the level and field of education for the CLP’s unit outline requirements.
aThe applicant’s responses are available in his assessment papers and consist of the following:
bKnowledge of the Criminal law and Procedure;
cThe skills to be able to apply in practice;
dKnowledge and skills that are essential for legal practice, employment and further study and;
eIndependent and critical skills and mental capacity to be suitable for life-general learning.
Both conveners, including Dr Murphy and Dr Tony, failed to follow the University Assessment policy, failed to provide constructive feedback on the applicant’s academic progress, and failed to assign a reasonable grade for the applicant. They both exercised their professional power in a discriminatory manner in the applicant’s circumstances, which is a breach Professional Obligation. [Original emphasis]
Pressed to identify the evidence to support the findings of facts mentioned there, including that he had demonstrated sufficient knowledge and skill to pass the unit, Mr Pojohishgar said:
SENIOR MEMBER: And where is the evidence – where do I find the evidence that you have demonstrated sufficient knowledge and skill consistent---
MR POJOHISHGAR: In my assessment. Assessment – assessment paper.
SENIOR MEMBER: Right. So I just look at the assessment paper and it’s apparent to me that you have demonstrated sufficient knowledge and skill consistent with the level and field of education.
MR POJOHISHGAR: Yes.
SENIOR MEMBER: Is that what you say?
MR POJOHISHGAR: Yes.[5]
[5] Transcript of proceedings 10 May 2022, page 58
I refused to admit the documents into evidence until their relevance was clarified.[6]
[6] Transcript of proceedings 10 May 2022, pages 58-59
After I read Mr Pojohishgar’s witness statement, he confirmed that exhibits A1 to A5 included all of the evidence necessary to prove the facts set out in his submissions.[7]
[7] Transcript of proceedings 10 May 2022, page 59
The University commenced to cross-examine Mr Pojohishgar in the mid-afternoon. The cross-examination was not finished when I adjourned the hearing part-heard to 10:00am on 11 May 2022. I advised Mr Pojohishgar that at the conclusion of his oral evidence I would hear submissions whether he had satisfied the onus of establishing a rebuttable presumption that discrimination had occurred, before deciding whether the University should be required to go into evidence.
At 9:48am on 11 May 2022, the tribunal received an email from Mr Pojohishgar which said:
Attention to Senior Member Michael Orlov,
After several hours of careful consideration and various reasons, I came to a conclusion that, I prefer to withhold from participating in final hearing proceeding today on 11 May 2022 at 10am because of the following reasons:
1) In a legal proceeding, where natural justice is not being observed as a significant principle, and the balance of fairness is not being considered for all parties by the Tribunal Member, it seems very unlikely that I achieved justice and procedural fairness from such proceedings.
2) Justice cannot and will never be attained by threatening the aggrieved party, or attempting to obtain the applicant’s confession under duress to accept that his case has nothing to do with race.
3) Yesterday the final hearing was conducted in an unusual way, without letting the applicant make his opening statement, and explained his case step by step. It looked like it was a criminal interrogation, or the applicant had committed a crime.
I respectfully request the Tribunal Member to please refer my case to the Supreme Court under s 83 (2) of the ACT Civil And administrative Tribunal Act 2008 before making any final decision.
Section 83(2) of the ACAT Act provides that, if a party to a matter applies to have the matter removed to the Supreme Court, the tribunal may make an order for the matter to be removed if it considers it appropriate. I was not persuaded that the circumstances referred to in the email justified exercising the discretion in favour of removing the matter to the Supreme Court.
If Mr Pojohishgar believes that I failed to observe natural justice and procedural fairness in hearing his application, as section 7(b) of the ACAT Act requires, he is entitled to raise such matters as grounds of appeal if he decides to take that course.
I observe that requiring a person to identify the evidence they intend to present to the tribunal to prove a fact that is essential for a presumption to arise that discrimination has occurred, is neither a failure to observe natural justice, nor a denial of procedural fairness. Identifying the real issues that must be determined is integral to the principles that guide the tribunal’s procedures.[8]
[8] See section 7 of the ACAT Act
Further, removing the matter to the Supreme Court is inappropriate where there is a live issue whether the evidence presented by Mr Pojohishgar is sufficient to establish a presumption that discrimination has occurred. The issue must be confronted at some point. Removing the matter to the Supreme Court before that happens does not mean Mr Pojohishgar can avoid dealing with the issue. Removal would simply further delay the resolution of the complaints and add to the already substantial cost of the proceedings.
Section 47A of the ACAT Act applies where the tribunal requires a party to appear personally in relation to an application and the party fails to appear. Orders were made in this case for the hearing to be in person. As Mr Pojohishgar is self-represented, he was required to appear personally at the resumption of the hearing on 11 May 2022. Where Mr Pojohishgar informed the Tribunal that he did not intend to appear, section 47A(2) governs what the Tribunal may do. Subsection (2)(a) gives the Tribunal power to dismiss the application, in effect without further consideration of the application on the merits. Subsection (2)(d) allows the Tribunal to continue with the hearing in the absence of Mr Pojohishgar, either generally or in relation to any relief claimed in the application. I determined that it was appropriate to continue the hearing in the absence of Mr Pojohishgar if he chose not to appear.
At my request, the registry replied to Mr Pojohishgar’s email, advising that his request to remove the matter to the Supreme Court was refused and that the hearing would commence at 10:00am or at a later time that morning if he needed more time to attend the tribunal premises. The email also warned that if he failed to appear the Tribunal would decide the application in his absence. The contents of the email were also left as a message on Mr Pojohishgar’s voicemail. The tribunal received an email from Mr Pojohishgar at 10:57am acknowledging receipt of the earlier email. He did not respond to a further email sent at 11:07am enquiring whether he intended to make an appearance and, if so, at what time.
I resumed the hearing in Mr Pojohishgar’s absence at 10:34am. After hearing the University’s submissions on the question whether Mr Pojohishgar has satisfied the onus of proof in section 53CA(2) of the HRC Act, I reserved my decision.
Consideration
Claim 1: complaint about direct discrimination by Dr Murphy
Mr Pojohishgar made a complaint about direct discrimination by Dr Murphy in the second semester of 2019 (S2 2019).
The applicant received an overall mark of 45/100 for ‘Criminal Law and Procedure’, which meant he failed the unit. Dr Murphy was the Unit Convenor at the time. The applicant raised his concerns with Dr Murphy, but claims that Dr Murphy refused to meet with him.
The Contentions allege:
On the 25th of November 2019, the respondent [by which he means Dr Murphy] directly ignored the applicant’s knowledge and skills based on his own criteria, and willingly denied recognising the truth the applicant obtained and displayed in his CLP unit assessment papers. This was a clear discriminatory action in the applicant’s circumstances.
The respondent [i.e. Dr Murphy] made multiple negative comments on the applicant’s performance by saying. “Even if I did pass you, you would certainly fail in more advanced courses, simply because the content and expectations are substantially higher in later year courses. For example, Equity, Constitutional Law and Evidence are significantly more difficult”. These comments had the intent of decreasing the applicant’s confidence in his capability, as the applicant had already successfully completed both those advanced units. At that time, this was a degrading and mortifying treatment by the unit convenor.[9]
[9] Contentions, page 3 of 8, paragraphs 1 and 2 (top of page)
The Contentions allege that these facts establish that Dr Murphy directly discriminated against Mr Pojohishgar.
The evidence in support of the claim comprises:
(a)the applicant’s answers to the S2 2019 ‘Legal Problem Solving Assessment’ (Assessment Task 1) which, for various factual scenarios, required the applicant to identify the elements of the offence; the material facts; the legal issue; the relevant law (cases/judicial interpretation of statutory provision); apply the relevant law to the material facts (analysis/reasoning); and answer whether the element is proved beyond reasonable doubt (Y/N/unclear);[10]
[10] Exhibit A1, document 3
(b)the applicant’s answer to the S2 2019 ‘Memorandum of Legal Advice Assignment’ (Assessment Task 2), which required the applicant to consider a factual scenario and prepare an opinion on criminal liability;[11]
[11] Exhibit A1, document 4. The document in question is dated 1 April 2022, although the opinion purports to have been written in the second semester of 2019. However, the document was tendered without objection and the applicant was not cross-examined about the apparent discrepancy, although it must be noted that the cross-examination had not finished at the end of the first day of the hearing.
(c)marking criteria for Assessment Task 2 and Dr Murphy’s feedback to the applicant, which was in the following terms:
Salam this was a disappointing effort. While you identified murder and manslaughter as potential offences, you needed to focus on the elements of these offences (and corresponding defences) and make better use legal principles and references to support your conclusions. This includes case examples, which were lacking. There were parts where you identified an issue generally but did not include sufficient analysis to support your conclusions. A lot of your discussion was also repetitive and jumped around the issues, which made your argument difficult to follow. In some places, you seem to have just included your own explanation of what the law is, and applied that to the facts, without reference to legal principles.[12]
[12] Exhibit A3
(d)the applicant’s final exam assessment in S2 2019, including answers to multiple choice questions (which are not in evidence), and handwritten answers to questions 31 and 33 (which are not in evidence);[13]
[13] Exhibit A2. The University produced the document in answer to a subpoena. The applicant claimed that the document is incomplete. It appears to comprise an exam booklet, where the first page requires the student to fill in their student number and unit code and fill in the circle that corresponds to their answer to each multiple choice question. The last circle filled in on the first page corresponds to question 30. The following two pages have printed at the bottom ‘Page 2 of 13’ and ‘Page 3 of 13’. The answer to question 33 appears on page 2 of 13. The answer to question 31 appears on page 3 of 13. Clearly there must have been a question 32, but the evidence does not show whether it was answered. There may have been other questions, but without seeing the exam paper it is not possible to know whether there were other questions and, if there were, whether they were answered. The evidence leaves open two possibilities. Either the exam booklet has 13 pages, where the first page is where the student answers the multiple choice questions, or there is a separate 13 page exam booklet, in which case page 1 and pages 4 to 13 are missing. There is some handwriting at the bottom of page 2 and 3, where the applicant has written “page 2 of 13” and “page 3 of 13” and the comment “the first page and others are missing”. I infer that this was added after the University produced the document on subpoena and did not appear on the original.
(e)paragraph 1 of the applicant’s witness statement in which he states that he submitted an email to Dr Murphy on 25 November 2019, who refused to see him;[14]
[14] Exhibit A1, document 17
(f)the applicant’s email to Dr Murphy sent at 5:34pm on Monday, 25 November 2019 in which he said “I would like to see you this coming Monday regarding my final results. I would really appreciate it if you let me know your availability”;[15]
[15] Exhibit A1, document 9, page 4 of 4
(g)Dr Murphy’s emailed reply sent at 9:29am on 26 November 2019, the full text of which is:
Thanks for your email.
I’m afraid I am no longer in Canberra, so not available to meet personally. I can see from your results that you did very badly in the exam. Given it was a 50% exam, 30% of which were multiple-choice (where you either know it or you don’t), and 20% were in the form of short answers, I can only assume that you were not properly prepared.
The only advice I can give you there is this: examinations are a test of actual knowledge and familiarity with the course content. Preparation is essential over many weeks. The best performing students share the following in common: (1) they attend every class; (2) they prepare written answers for tutorials; (3) they prepare their own notes over 6-12 weeks; and (4) they don’t waste time in the exam room searching for things.
Don’t take this to heart, though. What this is saying is that at the moment you do not have the skills or knowledge to progress. Even if I did pass you, you would certainly fail in more advanced courses, simply because the content and expectations are substantially higher in later year courses. For example, Equity, Constitutional Law and Evidence are significantly more difficult.
My advice is to step up to the work. Every unit that you do requires you to do a minimum of 10 hours per week. Prepare written answers to the tutorial questions. Attend every class. Treated like professional training, because that’s what it is. Also recognise that law is a profession, which means that at the end of the day it’s not about you, or me, it’s about what the public, the courts and our peers want and expect. Sometimes we fail. Then we have to think about if it’s actually what we want. And if it is, dust ourselves off, get up, and do it again – this time learning from the errors. And if it’s not what we want, dust ourselves off, get up, and walked towards what brings us joy, hope and happiness. I failed the entrance exam for medicine 3 times. And I’m glad I did, because it gave me the opportunity to find what I am good at.
I am sorry if this is a cause of some disappointment for you. Rest assured I fret about all my students. Rest assured that it’s not the end of the world – it’s an opportunity to do things differently;)
I’m sorry that I won’t be able to sit with you and meet you. As it happens I do not live in Canberra, and have recently changed jobs, so will not be back to Canberra.
But take care, remember to breathe and find peace in life – and work hard next time around.[16]
[16] Exhibit A1, document 9, page 3 of 4
(h)the applicant’s emailed reply to Dr Murphy sent at 1:28pm on 26 November 2019, the full text of which is:
Thank you for replying to my email and, thank you for making me aware of those unintentional frailer that I should have been more careful about.
I would like to write the following in response to your email:
1. While I have not been able to gain a successful result in the final exam, because of the reason you have mentioned; however, I honestly have a special respect for you, because of your diligence and the effort that you have put into the course, which I greatly appreciate.
2. This is maybe the first time that I have learned something comprehensively about the foundation of criminal law at University of Canberra, even though my understanding has led me to fail the final exam.[17]
[17] The applicant admitted that this statement was true: transcript of proceedings 10 May 2022, page 88, line 19-31
3. As you mentioned in your email about my legal knowledge and my understanding from the law; with respect, I have to say that I do not fully agree with you in this regard; because it would be hard for anyone to evaluate my knowledge and understanding of the law in that short period of time. It is also difficult for any student to put all that information into a three-hour exam in practice. The multiple questions were the main reason and may not be acceptable for a student who work so hard to gain high or pass mark, in order to complete the unit.
4. I am the type of person that always does bad at the exam. In my opinion, the most difficult units were Evidence and Negligence law, which I worked so hard and passed those exams last year.
5. It is the first time, I failed, and I have not been successful at the subject that I studied the most, even though I felt that I would be really good at it.
6. Mr Professor, we are living in a society where there are injustices, inequality, unfairness. I cannot tell you about my personal or private life and cannot explain all my circumstances.
7. My point is; when we are making our decision; we have to make sure that our decision is fair and free from any inconsistency. We also must evaluate that whether I am given the same opportunity as the other student. The University class is available for me, but without directly involving with legal work at workplace; as bilingual student, the experience has proven that theory is not enough for being a successful legal professional.
8. However, I would like to say that, if I honestly evaluate myself and my understanding of Criminal law impartially; my conscience will tell me that I have not been treated fairly. Taking into consideration all the above reasons; If this is still your decision, and you’re insisting that your judgement was fair, I will respect your decision, and take the advice you have provided me and will try again.
I wish you all the success with your new profession.[18]
(i)Dr Murphy’s emailed reply to the applicant sent at 4:02pm on 26 November 2019, the full text of which is:
Thanks for your email. I appreciate your concerns. I have enormous respect for my students, especially those who make the courageous decision to study abroad, and in a different language. It is certainly not something that I would attempt to do, simply because I only have one language.
I can assure you that I treat all my students fairly, and go out of my way to provide support to students who ask. I routinely met with students throughout the semester, and corresponded with many more. I have been teaching university level courses for more than a decade, and using a variety of assessment tools throughout that time. I can assure you that it is possible to assess a combination of knowledge and skills in a semester. I have also used multiple-choice examination papers for many years in several different universities, and as a method I can also reassure you that it is a very effective model.
Rest assured that I look at student results very carefully, mindful of my professional obligations and my students. With that in mind I am sorry if the results cause you some disappointment. This is never my intention. In the circumstances you can be assured that my judgement was fair, informed and in the context of a good deal of academic experience. You should be well placed for a repeat of the course.
Take care, and have a great summer.[19]
(j)the applicant’s final word on the subject in an email to Dr Murphy sent at 12:13pm on 27 November 2019, which was:
Thanks for the email. I will go and repeat the course to fulfil your desire.
I wish you all the best and Happy New Year in advance.[20]
[18] Exhibit A1, document 9, page 2 of 4
[19] Exhibit A1, document 9, page 1 of 4
[20] Exhibit A1, document 9, page 1 of 4
Mr Pojohishgar claimed that Dr Murphy treated him unfavourably by giving him an overall grade of 45/100 for the ‘Criminal Law and Procedure’ unit. He claimed that he should have received a pass for Assessment Task 1, a credit for Assessment Task 2 and a pass for the final exam, which would have resulted in an overall grade of a pass for the unit.[21]
[21] Transcript of proceedings 10 May 2022, pages 10-11
He did not arrange for any of his assessments to be externally reviewed by a suitably qualified academic to support his claim.[22]
[22] Transcript of proceedings 10 May 2022, page 78
Pressed to explain how the Tribunal should decide whether he should have received better marks for the assessments, Mr Pojohishgar said he wanted the Tribunal to hire an independent academic to evaluate his assessments.[23] When I reminded him that he was responsible to present evidence to establish that he should have received higher marks in each of the three assessments, Mr Pojohishgar said:
[23] Transcript of proceedings 10 May 2022, pages 11-12
MR POJOHISHGAR: The evidence is inside the assessment paper.
SENIOR MEMBER: So, do you say that just by looking at the assessment paper I should realise that the mark you received was incorrect?
MR POJOHISHGAR: Yes.
SENIOR MEMBER: Right, so am I right to say that in other words you’re saying that it’s self-evident that the mark was too low?
MR POJOHISHGAR: Yes.
SENIOR MEMBER: All right. Well, no doubt you’ll take me to the parts of the exam but other than that, you don’t rely on any other evidence? You say I should look at the exams and it should be apparent to me that you should have received a higher mark?
MR POJOHISHGAR: I rely on threshold standards. Higher education threshold standards 2021, that explained the ability and the scale of the students, the outcome they received for their assessment they should receive.
SENIOR MEMBER: Okay, well that’s the standard, but how do you demonstrate – how do you persuade me that your answers meet that threshold? How do you propose to do that?
MR POJOHISHGAR: I’m going to provide you evidence.
SENIOR MEMBER: Well, I’m asking you what that evidence is going to be. I don’t need to know the evidence, I want to – are you going to take me to an answer and say that answer meets these requirements?
MR POJOHISHGAR: Yes.[24]
[24] Transcript of proceedings 10 May 2022, pages 14-15
To satisfy section 53CA(2)(a)(i) of the HRC Act, Mr Pojohishgar must establish that he was treated unfavourably by being given a lower overall mark for the unit than he deserved, considering the results of each of the three assessments that contributed to the overall mark of 45/100. He provided no evidence to establish that he should have received a higher mark for any of the assessments in S2 2019. I have read Mr Pojohishgar’s assessment papers. The hypothetical fact scenarios on which the first and second assignment, and the questions in the final exam, are not in evidence, making it impossible to undertake the kind of process Mr Pojohishgar had in mind to demonstrate to me that he deserved better marks, even if I was minded to allow him to do so without him having provided an outline of the proposed evidence in advance of the hearing. Whether Mr Pojohishgar should have received higher marks is a matter of academic judgment. It was always necessary for Mr Pojohishgar to obtain expert evidence from a suitably qualified independent academic that, based on a re-mark of the assessment papers, the marks Dr Murphy gave him were outside the range that could be explained on the grounds of differences in academic judgment. Absent such evidence, Mr Pojohishgar has not established that Dr Murphy treated him unfavourably by giving him an overall mark of 45/100 for the unit.
To satisfy section 53CA(2)(a)(i) of the HRC Act in relation to the complaint that Dr Murphy treated Mr Pojohishgar unfavourably by giving him feedback about his performance in the final exam in the first email sent on 26 November 2019, Mr Pojohishgar must establish that the feedback was inappropriate considering his academic performance in the final exam. There was no such evidence. To the contrary, Mr Pojohishgar admitted in his first email to Dr Murphy on 26 November 2019, that “my understanding has led me to fail the final exam” and “I am the type of person who always does bad at the exam”, suggesting that Dr Murphy’s feedback was directly on point.
Mr Pojohishgar’s complaint that Dr Murphy treated him unfavourably by refusing to meet with him after Mr Pojohishgar emailed him on 25 November 2019 to request a meeting to discuss his exam results, is completely lacking in merit. Mr Pojohishgar asserted that Dr Murphy did not give a legitimate reason for refusing to meet with him.[25] He claimed that his expectation was that Dr Murphy had to meet with him and give constructive feedback because he failed the unit. He said it was Dr Murphy’s “obligation to provide me such constructive feedback”.[26] The evidence shows that Dr Murphy replied to Pojohishgar’s email on 26 November 2019, saying that he could not meet with Mr Pojohishgar personally because Dr Murphy was no longer in Canberra; he did not live in Canberra; he had recently changed jobs; and he would not be returning to Canberra. The email went on to provide written feedback on Mr Pojohishgar’s exam performance. I have read the feedback, which is appropriately described as ‘constructive’.
[25] Transcript of proceedings 10 May 2022, pages 81-84
[26] Transcript of proceedings 10 May 2022, pages 83-84
These findings are sufficient to dispose of the complaints of discrimination made against Dr Murphy. However, for completeness I will also consider the issue of causation.
Section 4A(2) of the Discrimination Act 1991 provides that doing an act ‘because of’ a particular matter includes a reference to doing an act because of two or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for doing the act.
Causation is a question of fact. The test is objective. There must be a direct causal link between the unfavourable treatment and the complainant’s protected attribute. Where a complaint is made about direct discrimination, it is necessary to ask – why was the person treated in a particular way? If the answer is because of the person’s protected attribute, even if that is not the dominant or substantial reason, the causation element is established.[27]
[27] Applicant 202053 v Employers Mutual Limited [2022] ACAT 9 at [16]-[32]; Casino Canberra Limited v Kidman [2022] ACAT 22 at [139]-[146]
To satisfy the onus of proof in section 53CA(2)(b)(i) Mr Pojohishgar had to present evidence that would enable the Tribunal to decide, in the absence of any other explanation, that his race was a reason, even if not the dominant or substantial reason, why Dr Murphy awarded him an overall grade of 45/100 and gave him feedback that Mr Pojohishgar said was unfair and failed to recognise his academic ability and achievements.
Mr Pojohishgar identified the contents of the third and fourth paragraph of Dr Murphy’s first email sent on 26 November 2019, commencing with the words “The only advice I can give” and “Don’t take this to heart” as evidence that the reason for Dr Murphy treating Mr Pojohishgar unfavourably was because of Pojohishgar’s race. Mr Pojohishgar confirmed that this was the only evidence on which he relied to satisfy the onus of proof in section 53CA(2)(b)(i).[28] He admitted in cross-examination that neither paragraph, nor anything else said in Dr Murphy’s email, refers to race.[29] The email, which I have reproduced in full earlier, speaks for itself. The allegation that Dr Murphy treated Mr Pojohishgar unfavourably because of his race is groundless.
[28] See the discussion at transcript of proceedings 10 May 2022, page 17 (line 26) to page 24 (line 38) and the answers at page 26 (lines 20-45)
[29] Transcript of proceedings 10 May 2022, pages 88-90
I am satisfied that the complaint about direct discrimination by Dr Murphy must be dismissed for these reasons.
Claim 2: complaint about direct and indirect discrimination by Dr Krone
Mr Pojohishgar made a complaint about direct and indirect discrimination by Dr Tony Krone in the second semester of 2020 (S2 2020).
Mr Pojohishgar repeated ‘Criminal Law & Procedure’ in S2 2020 but again failed to pass. This time the Unit Convenor was Dr Tony Krone. Mr Pojohishgar’s results for the four assessment items were 9/20 for the first assignment,[30] 7/20 for the second assignment,[31] 7.5/10 for participation and 18.5/50 for the final exam,[32] giving him an overall grade of 42/100.[33]
[30] A copy of assignment 1 is in evidence at exhibit A1, document 1. However, the hypothetical fact scenario is not in evidence.
[31] A copy of Assignment 2 is in evidence at exhibit A1, document 2. However, the hypothetical fact scenario is not in evidence. The document in question is dated 28 July 2021, although the opinion purports to have been written in the second semester of 2020. However, the document was tendered without objection and the applicant was not cross-examined about the apparent discrepancy, although it must be noted that the cross-examination had not finished at the end of the first day of the hearing.
[32] A copy of the questions and answers in the final exam is not in evidence.
[33] Exhibit A1, document 12, page 2 of 4 (unpaginated chain email dated between 9 and 15 January 2021)
Mr Pojohishgar met with Dr Krone on 24 November 2020, after the results were released. After some discussion Dr Krone offered Mr Pojohishgar the opportunity to sit a deferred exam.
Mr Pojohishgar sat the deferred exam on 30 November 2020.[34] On 9 January 2021, he emailed Dr Krone about his results. Dr Krone replied on 11 January 2021, advising that the applicant’s score was 18/50, meaning that his mark for the unit was unchanged.[35]
[34] A copy of the exam paper, but not the questions, is in evidence at exhibit A1, documents 7 and 8. A typed document purporting to be a transcript of the handwritten answers is in exhibit A1, document 6.
[35] Exhibit A1, document 12, page 2 of 4 (unpaginated chain email dated between 9 and 15 January 2021)
The Contentions allege:
1) On 24th of November, (Dr Tony) engaged in unlawful conduct by denying to recognise the applicant’s legitimate rights, as well as the knowledge and skill he has demonstrated in all his assessment papers.
2) On that day, Dr Tony said to the applicant, “Yes, you did answer the question, but I can’t do magic to change your grade. I will give you a diferred [sic] exam.” This statement in the applicant’s circumstances is a clear denial of the applicant’s inalienable rights that was granted under the section 27a of the ACT human rights Act 2004 [sic].
6) On 24th of November 2020, the respondent directly disregarded the knowledge and the truth the applicant obtained and displayed in his CLP unit assessment papers. Such unlawful conduct is covering the truth and considered a clear discriminatory action in the applicant’s circumstances. In addition, the respondent gained unauthorised access to the applicant’s academic record, which is a highly sensitive information. The respondent is in a clear violation of the University privacy policy and legislations…
The Contentions allege that these facts establish that Dr Krone directly discriminated against Mr Pojohishgar.
The Contentions also allege:
3) Dr Tony imposed a deferred exam on the applicant as a condition the applicant must take. The answers that were given by the applicant in response to the final exam were correct, relevant and highly significant, and there was no need to impose further unreasonable conditions on the applicant.
4) The condition had the effect of putting the applicant in an unfavourable position to lose further grades, and highly impacted his GPA. According to the University’s ‘Measure of Academic Achievement Procedure’, if the student is given and NX grade, not only will his GPA remain low, but he will not be able to transfer to another university. As a result, the student could neither succeed in his current course of study, nor moved to another one. This dishonest method was used to deliberately confine and restrict the applicant.
5) Despite the achievement the applicant demonstrated throughout the entire unit, his efforts and knowledge were reduced to a zero (NX) grade that could not be calculated in his GPA. He attended all the classes, submitted the assessments, and, as admitted by the professor himself, also answered all the questions, yet in the end, he received nothing for his academic achievement.
6) The condition Dr Tony imposed [the deferred exam] was a risk of serious probation condition, and the applicant was unable to transfer to another University to complete his course.
The Contentions allege that these facts establish that Dr Krone indirectly discriminated against Mr Pojohishgar.
In relation to the complaint of direct discrimination, Mr Pojohishgar relied on his evidence of a conversation with Dr Krone on 24 November 2020 in paragraph 3 of his statement to establish that he was treated unfavourably because of his race.[36] Paragraph 3 of the statement says as follows:[37]
[36] Transcript of proceedings 10 May 2022, page 27 (line 1) to page 29 (line 12)
[37] Exhibit A1, document 17
He opened all the previous subject’s result, read them one by one and said, “Oh, you have done your internship.”
I replied with, “yes, it was the legal aid.” Dr Tony went on to say, “Oh, Cybersecurity is a tricky one”. Following this exchange, he said, “You haven’t answered the first question for the final exam”.
Once again, I replied with, “Yes, I did answer the first question.”
“Let’s open the assessment questions”. Dr Tony opened my answers and read them. He proceeded to admit, “Yes, you did answer the question.” He read the rest of my answers and repeated, “Yes, you did answer the question.” When he read the last answer, he looked at me and said, “You did answer the questions, but it is not in detail”.
That was the time I said to him “In that specific time, it was difficult to discuss and cover all the issues in a hypothetical scenario.” And I added “It is not easy to find the relevant information in a limited time and typing it in the computer”.
Dr Tony said, “I can’t do magic to change this, I will give you a deferred exam”.
I replied with, “You’re destroying my transcript and academic career. I have answered the questions.”
He said words to the effect, “The case is not relevant. I cannot do anything; I can only give you the deferred exam.”
I said “I cannot make a decision on this”. Then I left his office.
There is nothing in Mr Pojohishgar’s account of the conversation that suggests his race had anything to do with the results he received in the unit, or Dr Krone’s decision to grant him a deferred exam. As the evidence Mr Pojohishgar has presented does not enable the Tribunal to decide, in the absence of any other explanation, that his alleged treatment by Dr Krone was because of his race, it is not necessary to go on to consider whether the evidence establishes that the alleged treatment was unfavourable.[38]
[38] If it had been necessary to do so, the allegation that Mr Pojohishgar was treated unfavourably by being awarded an overall grade that did not truly reflect his performance in the three assessment papers that contributed to the mark of 42/100 faced the same evidentiary obstacles discussed in relation to his results in S2 2019.
I am satisfied that the complaint of direct discrimination against Dr Krone must be dismissed as a result.
In relation to the complaint of indirect discrimination, Mr Pojohishgar said that he was “psychologically and mentally destroyed” when he received his assessment paper[39] and the requirement that he sit a deferred exam had the effect of disadvantaging him by the adverse psychological impact it had on him. Pressed to identify the evidence he intended to present that would enable the Tribunal to decide, in the absence of any other explanation, that the effect of disadvantaging him he identified was because of his race, Mr Pojohishgar conceded that there was none.[40] He nevertheless maintained that a presumption that indirect discrimination had occurred was established “from the result of the grade I received, the second time”.[41]
[39] Transcript of proceedings 10 May 2022 page 30 (lines 25-36)
[40] Transcript of proceedings 10 May 2022 page 29 (line 12) to page 31 (line 31).
[41] See the discussion at transcript of proceedings 10 May 2022, page 31 (line 33) to page 33 (line 23) and the answers at page 33 (lines 11-23)
Where I was satisfied that Mr Pojohishgar could not satisfy the onus in section 53CA(2)(b)(ii) of the HRC Act, I dismissed the complaint of indirect discrimination against Dr Krone under section 32(2) of the ACAT Act on the grounds that it lacked substance.[42]
Claim 3: complaint about direct and indirect discrimination by Professor Gerard
[42] Transcript of proceedings 10 May 2022, ruling at page 46
Mr Pojohishgar made complaints about direct and indirect discrimination by the Head of the Law School, Professor Alison Gerard, in January 2021 when Mr Pojohishgar sought to have the fail grade given by Dr Krone reviewed.
The first complaint
The first complaint alleges that on 18 January 2021 Professor Gerard directly discriminated[43] against Mr Pojohishgar by:
…refusing to see the applicant and denied his access to a service that was provided by the University authority. In the applicant’s circumstances, the head of law school had the duty to resolve the matter in an impartial manner, but she refused to meet the applicant and provide those benefits. Professor Gerard, as a representative of university and holder of public authority in the applicant’s circumstance, was expected to act in ways that would be consistent with the human rights legislative instrument.[44]
[43] The heading to this complaint incorrectly identified it as being about indirect discrimination. This was clarified at page 34 of the transcript of proceedings 10 May 2022.
[44] The Contentions at [6]
Mr Pojohishgar conceded that he had no evidence that the alleged refusal to meet with him was because of his race.[45]
[45] Transcript of proceedings 10 May 2022, page 34 (lines 10-15)
Emails tendered by Mr Pojohishgar establish that he emailed Professor Gerard at 10:36am. on Monday, 18 January 2021, to say “I am at the UC campus today, I would be greatly appreciated if you please give me an opportunity to meet with you. I would like to discuss some of the issues related to my study”.[46] Professor Gerard replied by email at 10:45am the same day, saying “I am not available today but have time available at 3.30 this Wednesday on campus. Would that suit?”[47] Mr Pojohishgar replied at 11:49am saying “I know you are an important person and you have a busy schedule. Is there any room that you could please put me in for tomorrow?”[48] He explained that the purpose of the meeting was to discuss his formal grievance application against Dr Krone and the fail grade he received in Dr Krone’s unit. Professor Gerard replied at 12:58pm that she was unable to meet the next day and confirmed the meeting at her office at 3:30pm on Wednesday. The meeting took place at that time.
[46] Exhibit A1, document 13, page 4 of 4 (unnumbered pages)
[47] Exhibit A1, document 13, page 3 of 4 (unnumbered pages)
[48] Exhibit A1, document 13, page 2 of 4 (unnumbered pages)
I am satisfied that the first complaint against Professor Gerard is groundless and must be dismissed.
The second complaint
The second complaint alleges that at the meeting on 20 January 2021 Professor Gerard indirectly discriminated against Mr Pojohishgar “by requiring him to write a submission against another unit Convenor” when he had insufficient time to do so “because he needed to prepare for the next semester”.[49] To understand the complaint in its proper context, it is necessary to refer to Mr Pojohishgar’s evidence about the meeting:[50]
On the 22nd of January 2021, I approached and met Dr Gerard with respect and faithfulness. I saw my assessment papers were opened in her computer screen, and I asked, “Have you read my assessment paper professor?” She replied, “We can talk about that” We then discussed the CLP Assessment papers I had submitted to the University. I asked her about the grade and feedback that were given by Dr Tony and Dr Janet, whether she read them or not. She replied, “yes, I saw it and I am satisfied with the convenor’s marking and feedback’s. She said “You have not discussed the causes, and a lot of things in your Criminal Negligence assessment.” I said, “Yes, Professor, if you do not have access to all relevant material facts and information from the scene, it would be hard to discuss and cover everything.”
Dr Gerrard also use the word, “What would be the substance of your application?” She wanted to know that where I would pursue my complaint. She also wanted to know my view on the feedback that was provided by Dr Janet, in response to my second Assessment paper.
At the end, Dr Gerrard said, “I will give you a task; to write a submission in response to Dr Janet’s feedback.” I agreed to write the submission.
When I was going to leave her office, she said, “Thanks for being interested in Australian Criminal Law.” I said thank you and left her office…
[49] The Contentions at [8]
[50] Exhibit A1, document 17, at [7]-[10]
“Dr Janet’s feedback” is a reference to the marker’s comments in relation to the second assignment in S2 2020, for which Mr Pojohishgar received a mark of 7/20, which said:
The paper is presented as a memorandum of legal advice. An introductory paragraph is somewhat confusing. The first charge considered is manslaughter by criminal negligence. Student correctly identifies the jurisdiction and the elements of the offence, with reference to the case of Nydam. In relation to Marcus’ duty of care, they correctly identify the general duty not to cause harm. From this point the discussion becomes somewhat confused, conflating unlawful and dangerous act manslaughter with the question about duty of care.
In relation to the standard of care, they correctly note that the appropriate standard is that of a reasonable person. The issue of intoxication is raised with reference to a provision of the relevant legislation that is close to, but not precisely, the correct provision. The student then goes on to ask whether there has been a breach of duty of care – this discussion is again slightly confused becomes to the correct conclusion.
The student next considers the matter of causation of death in relation to negligent manslaughter. They consider that the chain of causation has been broken. Here, it would have been appropriate to discuss the operating and substantial cause test and novus actus, but this is not addressed.
Mental illness and mental impairment are considered as possible defences for criminal negligence. This is not relevant on the facts. The student goes on to consider procedural and evidential matters that are not part of the assignment question. An overall conclusion follows. Overall, in this paper the student has made an attempt to systematically consider negligent manslaughter. However, there are numerous points of confusion and there is no discussion of other important issues such as murder, unlawful and dangerous act manslaughter (as a separate form of the offence), common assault, assault occasioning actual bodily harm, causing grievous bodily harm (as a separate offence) and reckless grievous bodily harm.[51]
[51] Exhibit A1, document 2 (last page)
After meeting with Professor Gerard, later the same evening Mr Pojohishgar sent her an email saying that he came to her expecting that she “would be able to make a reasonable decision with good faith, on the disputed issue (my Final grade in Criminal law and Procedure)” and that, on second thought, he preferred to seek resolution of the matter through the University’s formal grievance process.[52]
[52] Exhibit A1, document 13, page 2 of 4 (unnumbered pages)
Professor Gerard replied by email at 10:39am the next morning, saying:
We met yesterday to discuss your complaint, and after discussion I tasked you with undertaking a process to identify substance to your claim. At this stage, you contend that the marking for 3 assessments in Criminal Law and Procedure has been unfair, without any substantiation of the complaint.
Again, I invite you to re-engage with the informal resolution process, and contrast the feedback received with your complaint. I invite you to identify what aspects of the feedback are unfair and articulate what you agree with. I note that your paper has been marked and moderated already.
You can of course choose to pursue a formal grievance at any stage. However, in my view, you have not yet demonstrated substance for your complaint and you have not engaged with the informal resolution process.[53]
[53] Exhibit A1, document 13, page 2 of 4 (unnumbered pages)
The disadvantage that Mr Pojohishgar says he suffered because of Professor Gerard’s ‘requirement’ that he prepare a submission substantiating his complaint of unfair marking is that he had to prepare for the next semester. Mr Pojohishgar conceded that he could provide no evidence that the effect of disadvantaging him was because of his race.[54]
[54] Transcript of proceedings 10 May 2002, page 35
Mr Pojohishgar claimed, in the alternative, that Professor Gerard directly discriminated against him by requiring him to write a submission substantiating his complaint. Pressed to identify the evidence that would enable the Tribunal to decide that she did so because of his race, Mr Pojohishgar said the only evidence was the statement he attributed to Professor Gerard – “Thanks for being interested in Australian Criminal Law”.[55] Whether that statement, if made, can reasonably be understood to convey the meaning Mr Pojohishgar gives to it is considered in the next part of these reasons. However, the allegation that Mr Pojohishgar was treated unfavourably by being asked to provide a submission substantiating his complaint that he had been marked unfairly and responding to the written feedback he received, is fundamentally lacking in merit.
[55] Transcript of proceedings 10 May 2022, page 38
It will be apparent from my reasons that I have found that Mr Pojohishgar has persisted in his complaints that the marks he received were unfair without making any effort to substantiate the complaints with evidence, other than a self-assessment of his own academic ability and performance and his evident belief that he has met the required academic standards to pass the unit.
Mr Pojohishgar’s reply to Professor Gerard sent at 12:53pm on 21 January 2021, which reflects the way he approached proving his case in the Tribunal, is telling in that regard:
… I expected you and the convenors to grade me in return for my hard work, performance and the knowledge I have obtained from Criminal Law and Procedure, during the semester.
You know exactly that those marks I had received are in clear contrast to the several University Policies and Procedures.
The following are the main reasons why I am pursuing the formal Grievance procedure:
a) You have not proposed a reasonable suggestion to resolve the matter.
b) You are satisfied with all the Convenors marking criteria and feedbacks. This itself defines your position and where you stand.
c) Unfortunately, you have not taken my grievance into consideration.
d) You have not made an appropriate decision on the disputed issue; and
e) The condition you have enforced on me is to write a submission and explain why I was disagreeing with convenor’s marking. That will not resolve the dispute. So, the outcome in your suggestion will be the continuation of the dispute.
I find that the grading was a totally unrealistic assessment of my legal and academic ability, and the decisions the convenor’s had made did not reflect my intellectual ability of the Criminal law and Procedure. I was entitled to a much higher grade then that of was already given to me by the Convenors. [All original errors][56]
[56] Exhibit A1, document 13, page 1 of 4 (unnumbered pages)
Where I was satisfied that Mr Pojohishgar could not satisfy the onus in section 53CA(2)(b)(ii) of the HRC Act in relation to the complaint about indirect discrimination, and section 53CA(2)(a)(i) in relation to complaint (in the alternative) of direct discrimination by Professor Gerard, I dismissed both complaints under section 32(2) of the ACAT Act on the grounds that they lacked substance.[57]
The third complaint
[57] Transcript of proceedings 10 May 2022, ruling at page 46
The third complaint is that Professor Gerard directly discriminated[58] against Mr Pojohishgar by saying to him, at the end of the meeting on 20 January 2021, “Thank you for being interested in Australian Criminal Law”.
[58] The Contentions allege that this was indirect discrimination. However, Mr Pojohishgar said that the complaint was about direct discrimination – see transcript of proceedings 10 May 2022, page 38
The University disputes that the words were said. However, the Tribunal’s task is to assess whether Mr Pojohishgar has presented evidence that would enable the Tribunal to decide, in the absence of any other explanation, that the words were said and amounted to unfavourable treatment because of Mr Pojohishgar’s race.
Paragraph 10 of Mr Pojohishgar’s statement provides evidence that the words were said and the context in which they were said. He was not cross-examined about this before the hearing was adjourned part-heard. I will assume that Mr Pojohishgar’s evidence should be accepted for the purpose of considering whether the statement, if made, was unfavourable treatment and, if so, whether Mr Pojohishgar was treated that way because of his race.
The Contentions allege:
The expression of such a statement is a denial of the applicant’s citizenship rights which was granted in section 8 (3) and section 17 of Human Rights ACT 2004. By expressing such a condescending statement, it is implying that the applicant is not equal to Dr Gerrard’s ethnic origin or background. The nature of her unlawful conduct and her unequal attitude violated the applicant’s dignity, as the applicant became an eligible person to be granted an Australian Citizenship in 2017, and has made a pledge of commitment to Australia, and its people, to respect and uphold the law, as well as their democratic beliefs and liberties. The applicant should not be, and cannot be, addressed as anything other than that.[59]
[59] The Contentions at [11]
Asked to explain the process of reasoning that lead him to conclude that the words were said because of his race, Mr Pojohishgar said:
Expressing such a statement it mean I’m not belong to this country and I’m not entitled to practice criminal law or finish criminal law and that was the statement she made. She put that statement at the time and she put the condition at the same time. That’s the tort [thought?] and the intention of her.[60]
[60] Transcript of proceedings 10 May 2022, page 39 (lines 13-22)
The Tribunal is not required to speculate about what Professor Gerard may have meant by those words if she said them. Her subjective intention is irrelevant. The issue the Tribunal must decide is whether the words attributed to Professor Gerard reasonably would be understood by a person in Mr Pojohishgar’s position to mean that he:
(a)is not an Australian citizen (or does not belong to this country) and should not be treated as such;
(b)is not ‘equal’ to Professor Gerard’s ethnic origin or background; and/or
(c)is not entitled to practice criminal law or finish criminal law?
The meaning of the spoken words is a question of fact. It must be determined objectively. The context in which the words were spoken is important.
I have reproduced Mr Pojohishgar’s evidence about what happened and what was said at the meeting earlier in these reasons.[61] The subsequent email exchange between Mr Pojohishgar and Professor Gerard provides further contextual evidence.[62]
[61] See [71]
[62] See [73], [74] and [78]
The context was that Mr Pojohishgar hoped to persuade Professor Gerard that he had been treated unfairly in the marking of his assessments and that he should be graded a pass, to allow him to continue the course without having to repeat the subject again. He clearly was interested in the subject, as appears from an email to Dr Krone on 15 January 2021, where he wrote:
In the last five year of my study, I have not studied any subject with enthusiasm, accuracy compared to the subject of criminal law and procedure...
…I hope I can use this knowledge to achieve more justice and legality in our civilised society.[63]
[63] Exhibit A1, document 11
It is important that the meeting ended on an apparently constructive note, where according to Mr Pojohishgar’s evidence, he acceded to Professor Gerard’s request that he prepare a written submission substantiating his complaints of unfair marking.
In that context it would be perfectly understandable for Professor Gerard to thank him for his interest in the subject, whether she referred to it as ‘Australian Criminal Law’ or ‘Criminal Law and Procedure’.[64]
[64] I note for the record that Ms Hercok, who appeared for the University, informed that the textbook for the subject is called ‘Australian Criminal Law’
I am not persuaded that the words “Thank you for being interested in Australian Criminal Law” can reasonably be understood to convey any of the meanings that Mr Pojohishgar asserts. The words do not refer to Mr Pojohishgar’s status as an Australian citizen, nor to his or Professor Gerard’s ethnic background, and there is no evidence that either of those subjects were even mentioned at the meeting. While his progression in Criminal Law and Procedure was discussed, the words in question say nothing about his prospects of finishing the course or practising criminal law in the future.
I should add that there is not a scintilla of evidence that would enable the Tribunal to decide, in the absence of any other explanation that, if the words were spoken, they were spoken because of Mr Pojohishgar’s race.
I am satisfied that the complaint is groundless and must be dismissed.
Claim 4: complaint about direct discrimination against the Associate Dean and the University Student Appeals Committee
Mr Pojohishgar made a complaint about direct discrimination by the Associate Dean in dismissing his formal grievance application on the grounds of academic judgment, and by the University Student Appeals Committee in dismissing his appeal from the Associate Dean’s decision.
Mr Pojohishgar conceded that there was no evidence that either decision was made because of his race.[65]
[65] Transcript of proceedings 10 May 2022, pages 39-41
As a result I dismissed the complaints under section 32(2)(b) of the ACAT Act on the grounds that they lacked substance.[66]
Conclusion
[66] Transcript of proceedings 10 May 2022, ruling at page 46
Mr Pojohishgar has failed to satisfy the onus of proof in section 53CA(2) of the HRC Act in relation to any of his complaints about direct and indirect discrimination by the University, so as to give rise to a rebuttable presumption that discrimination has occurred. The minimum evidentiary threshold that would require the University to go into evidence has not been reached. I dismissed some of the complaints by the orders made on 10 May 2022. The appropriate order in those circumstances is to dismiss the remainder of the application.
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Senior Member M Orlov
| Date(s) of hearing: | 10 & 11 May 2022 |
| Applicant: | In person (10 May 2022 only) |
| Solicitors for the Respondent: | Ms R. Hercok and Ms L. Pinkerton (authorised representatives) |
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