Saadi v Universities Admission Centre (NSW & Act) Pty Ltd

[2008] NSWADT 255

CITATION:	Saadi v Universities Admission Centre (NSW & ACT) Pty Ltd [2008] NSWADT 255
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Badrel Din Mohammad Saadi RESPONDENT Universities Admission Centre (NSW & ACT) Pty Ltd
FILE NUMBER:	081015
HEARING DATES:	8 April 2008
SUBMISSIONS CLOSED:	8 April 2008
EXTEMPORE DECISION DATE:	8 April 2008
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Application for leave to proceed
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	N/A
REPRESENTATION:	APPLICANT No appearance RESPONDENT K Edwards, barrister
ORDERS:	Leave to proceed is refused.

REASONS FOR DECISION

1 The solicitors for the respondent have requested written reasons of an oral decision delivered on 8 April 2008. Below is a transcript of the reasons for decision given on that day with minor editorial amendments.

2 This is an application by Mr Saadi for permission for his complaints of race discrimination to the Anti-Discrimination Board to go ahead. Mr Saadi did not appear today at the Tribunal despite the fact that he was notified in writing of today’s hearing and given an opportunity to request that he participate by phone. I note that Mr Saadi lives in South Australia and the Tribunal certainly would have entertained any request from him to participate by phone today but none was made.

3 I attempted to contact Mr Saadi by phone on a mobile phone number, however there was no answer and I left a message for him to ring the registry. However, given that he has been given adequate notice of the hearing today there is no breach of procedural fairness in proceeding in his absence. Ms Edwards, represented the University Admission Centre (UAC) and handed up an outline of written submissions. In addition an affidavit of Andrew Stanton, dated 4 April 2008, has been filed and marked as exhibit A.

4 This is an application by Mr Saadi for leave for his complaints of race discrimination to proceed in the Tribunal. He made a complaint to the Anti-Discrimination Board on 23 July 2007 alleging race discrimination in the provision of goods and services against UAC. Following investigation of that complaint the President decided to decline it as lacking in substance and Mr Saadi requested the matters be referred to the Tribunal. Under section 96 of the Ant-Discrimination Act 1977 an applicant is required to obtain leave from the Tribunal before the complaints can proceed.

5 The President accepted those parts of the complaints that related to the period from 23 July 2006 until 23 July 2007. That meant that two applications that Mr Saadi made to UAC came within the period of complaint. They were his application for admission to the University of New South Wales in the Faculty of Aviation to the Bachelor of Aviation (Flying) on or about the 17 August 2006 and an application, again to the University of New South Wales in the Faculty of Aviation to the Bachelor of Aviation (Management) on or about 15 May 2007.

6 The principles on which leave will be granted were set out by the Tribunal in the decision of Xu v Sydney West Area Health Service [2006] NSW ADT 3. I adopt the reasoning and the conclusion in that decision and, in particular, the finding that there must be a substantial reason for leave to be granted including the fact that the complaint has reasonable prospects of success. To have reasonable prospects of success a complaint must include some evidence from which an inference can be drawn linking the alleged treatment with the ground of discrimination. It is not said, in this case, whether it is a complaint of direct or indirect discrimination but it seems much more likely that had Mr Saadi had legal advice he would have characterised his complaint as a complaint of indirect discrimination.

7 If he did so he would need to establish that UAC imposed a requirement or condition on him and that a substantially higher proportion of people, not of his nationality, could comply with that requirement. He would also have to establish that he could not comply with the requirement and that the requirement was not reasonable in all the circumstances.

8 There is no dispute that Mr Saadi is of Sudanese nationality or that UAC is providing a service to students who apply to it for admission to Australian universities. The relevant provision of the Anti-Discrimination Act 1977 is section 19 which provides:

It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race:
(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which the other person is provided with those goods or services.

9 Assuming, for the purposes of this application, that UAC is providing Mr Saadi with services and that it has either refused to provide those services or has placed conditions on the provision of those services, the question would then arise as to whether what has been done amounts to discrimination as defined in section 7(1) of the Anti-Discrimination Act 1977. As I have said, the most favourable characterisation of Mr Saadi’s complaint is that it would come within 7(1)(c) which is known as the indirect discrimination provision. That provision defines indirect discrimination in the following terms:
(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of race if, on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, the perpetrator:

. . .

(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

10 Again, if Mr Saadi had received legal advice he might have characterised the requirement which UAC has imposed on him, as “having a qualification equivalent to the Higher School Certificate in Australia before he is eligible to be considered for admission to an Australian university.” Mr Saadi has a secondary school qualification from a school in Sudan however, that qualification is not assessable by UAC because it is not regarded as being equivalent to the Higher School Certificate. If that is the requirement that has been imposed upon Mr Saadi it may well be that a substantially higher proportion of people not of Sudanese nationality would be able to comply with it than people of Sudanese nationality. It is not in dispute that the third requirement has been met, namely that Mr Saadi cannot comply with the requirement. However, critically, in order to substantiate his complaint Mr Saadi would have to establish that the requirement was not reasonable in all the circumstances.

11 Mr Saadi does not make that claim in his complaint. He merely asserts that because he is a black man from Africa that UAC has discriminated against him. There is no suggestion that UAC has acted unreasonably in failing to regard his Sudanese secondary qualification as not assessable. In any event, it would be highly unlikely if this matter proceeded that the Tribunal would find that such a requirement was unreasonable. That view is based on the affidavit evidence of Andrew Stanton, dated 4 April 2008 in which Mr Stanton outlines the process by which qualifications from countries, including Sudan, are assessed.

12 Consequently, Mr Saadi’s prospects of making out a complaint of indirect discrimination in relation to his secondary qualifications not being assessable are extremely low. Even if that qualification were assessable, Mr Saadi may also have to establish English language proficiency. The certificate which Mr Saadi provided did not meet the standard of English language proficiency as determined by UAC and again, it would be highly unlikely that Mr Saadi would succeed in any claim of indirect discrimination in relation to that requirement. He would have to prove that such a requirement was unreasonable. That issue is also addressed in Mr Stanton’s affidavit. Finally, Mr Saadi talks about an aviation qualification and complains that UAC has lost the original document that he sent to them. That event, even if it did occur, happened before the period of the complaint and consequently cannot be considered. In any case it is not an assessable qualification from UAC’s perspective and Mr Saadi would have to rely on the indirect discrimination provisions in order to make out his case. Again, relying on Mr Stanton’s affidavit my view is that his prospects of making out that complaint are extremely slight.

13 I have attempted to anticipate the way Mr Saadi would have characterised his complaint had he received legal advice. Even based on a characterisation of his complaint as indirect discrimination in the provision of services, the evidence discloses that his prospects of success are slight. Leave for Mr Saadi’s complaint to proceed is refused.