SHAMMAS & CANBERRA INSTITUTE OF TECHNOLOGY (Discrimination) - [2012] ACAT 24

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

SHAMMAS & CANBERRA INSTITUTE OF TECHNOLOGY
(Discrimination) [2012] ACAT 24

DT 11/ 18, DT 11/34
Catchwords: Discrimination – discrimination on grounds of race and provision of education services – victimisation – no action incompatible with human rights – civil standard of proof – no discrimination or victimisation

Legislation: Discrimination Act 1991 s7, 8, 18 and 68

Cases:  DeDominico v Marshall [1999] FCA 130
  Prezzi v Discrimination Commissioner [1996] ACTAAT 132
  Edgeley v Federal Capital Press [2001] FCA 379
  Director General of Education v Breen [1982] 2IR93

Waters v The Public Transport Corporation [1991] 173 CLR
IW v The City of Perth [1997] 71 ALJR 943

Tribunal: Ms J. Lennard, Senior Member

Date of Orders:           8 March 2012
Extempore Reasons:  8 March 2012
Written Extempore Reasons:  7 May 2012
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )

DT 11/18, DT 11/34

BETWEEN:
BAN MANSOOR MIKHAEL SHAMMAS
Applicant

AND:

CANBERRA INSTITUTE OF TECHNOLOGY

Respondent

TRIBUNAL: Ms J Lennard, Senior Member

DATE: 8 March 2012

ORDER
1.Applications DT 11/18 and DT 11/34 are dismissed.

………………………………..
Signed Ms J Lennard
Senior Member

EXTEMPORE REASONS FOR DECISION

The Applicant, Ms Ban Shammas, is a recent arrival in Australia. She began studying at the Canberra Institute of Technology, the CIT, in July 2010. The Applicant was born in Iraq. Her mother tongue is Arabic. English is her second language. She is 45 years old, a mature student in classes with students who are generally younger than she.
Ms Ban Shammas complained to a teacher, CIT Teacher A, in October 2010 that she felt unhappy and uncomfortable about student conduct in the classroom. CIT Teacher A referred the Applicant to the Head of Education. The tribunal notes that the Applicant made no formal complaint in writing, but she did meet with the Head of Education on or about 19 October 2010.
The Head of Education referred the Applicant to the Counsellor. On 26 October 2010 the Counsellor met with the Head of Education and the Applicant. The Head of Education left this meeting after a short time. The meeting commenced at 0920 and ended at noon. The essence of the Applicant’s complaint made in that meeting with the Counsellor at the CIT, and in the meeting with the Head of Education that had taken place earlier, was that she had been subject to harassment by fellow students. She felt uncomfortable in class and she wanted the CIT to investigate a number of complaints. I outline below the major complaints.
The first was that following a conversation with a fellow student, CIT Student A, where the conversation was about the Applicant’s arrival in Australia, her refugee status and her persecution in Iraq, the Applicant noted that a number of people with brown skin and Islamic features were looking at her in what she described as a weird way. The Applicant believed that CIT Student A had discussed the conversation that she had had with the Applicant with other students, and with the CIT staff.
The second complaint was that on 5 August 2010, CIT Student A had spoken to the Applicant about a news report in which an Iraqi woman had committed adultery and had been lashed. The Applicant felt that this conversation was related to her, and upon investigation ascertained that the woman in the news report was Iranian, not Iraqi. The Applicant believed, again, that the conversation had been directed at her.
The third complaint was that also on 5 August, CIT Student A had suggested to the Applicant that the Applicant should undertake an assignment about refugees. The Applicant felt that CIT Student A making this suggestion was a breach of privacy of their private conversation.
The fourth complaint was that CIT Student A had discussed all of the above conversations and information with fellow students. The Applicant was “very offended by the jokes and the students’ gestures”.
The fifth complaint was that on 19 August 2010 two male CIT students had looked the Applicant up and down, assessing her body. The Applicant considered this very offensive and humiliating.
The sixth complaint was that on or about 10 September 2010 a fellow student, CIT Student B, had had a conversation with the Applicant. This conversation concerned the Applicant’s further study and career prospects.
The Applicant alleges that CIT Student B made claims that if the Applicant continued to study she may get a job in the public service or she may become, “a minister in her own country.” The Applicant believes that during this conversation CIT Student B was mocking her, and that, further, after this conversation, he made a joke of this conversation with his fellow students. This caused fellow students to mock and ridicule her.
The seventh complaint was that students laughed when the Applicant entered the classroom.
The eighth complaint concerned students discussing the Applicant’s weight, and regarding her as overweight, and suggested that the Applicant should attend a gym.
The ninth complaint was that some students had expressed opinions about refugees, religion and the Middle East, and that the students expressing these opinions and engaging in these discussions made the Applicant feel isolated and bullied.
The tenth complaint concerns the student presentations as part of their assessment process on hidden cameras and refugees. The Applicant felt that these two particular presentations were aimed at her, or related to her in some way.
The eleventh complaint was that some students had laughed in class when the Applicant began to read as part of a class activity. The final complaint concerned a student who was selling second-hand books cutting some pages from the textbook.
Some of these complaints have to be viewed in the context that the Applicant generally asserted that the content of her private conversations with her husband, which were taking place in her family home, were known to the students. She had identified some instances, such as the presentation on hidden cameras, the presentation on refugees, the conversation about the Iranian woman being lashed, as instances where the content of the conversation she had had in her home was raised by the students in the following days at the CIT.
The Applicant asserted generally that her home was bugged, that ASIO had hidden cameras and microphones in her house and was recording her private conversations and providing information about those private conversations to the CIT staff and/or to the CIT students.
On 9 November 2010 the Applicant had a meeting with the Head of Education and the Counsellor. They told the Applicant that they had investigated her complaints, but felt that there was little more that they could do. The basis for this was that they felt that there was no evidence to support her claims of bullying, harassment or laughing at or mocking her. It is difficult to investigate allegations of looks and feelings. The hidden microphones and cameras in her home were not a matter that CIT could investigate in any event.
The Applicant contends that the CIT:
1.Failed to conduct a proper investigation of her complaints;
2.Failed to resolve the matter; and
3.Effectively excluded or expelled her from the course by suggesting to her that she should complete her course in the flexible learning centre rather than attend full-time classes.
The Applicant further contends that the CIT discriminated against her when a teacher in the flexible learning centre advised her that she would have difficulty obtaining employment because of her poor language skills. The Applicant also contends that after the investigation by the CIT the mocking, laughing and harassment by fellow students continued.
The Applicant made complaints to the Human Rights Commissioner, and these were referred to ACAT. The hearing of the matters 18 and 43 of 2011 was conducted on 15, 16 and 17 February 2012.
The Applicant complains that her human rights have been infringed by the conduct of the CIT staff and students. The Applicant refers to the Human Rights Act 2004 (ACT) at sections 8 (recognition and equality before the law; 10 (protection from torture, inhuman or degrading treatment); and 12 (protection of privacy, and reputation). The Applicant in her statement of facts and contentions assert that the conduct described in paragraphs 23 and 24 below has infringed her human rights.
After the meeting between the applicant, the Head of Education and the Counsellor the Applicant says that she was treated rudely and told by the Head of Education to ‘go away’. This was denied in evidence by the Head of Education. However, even if this was established it does not amount to torture, inhuman or degrading treatment.
The disclosure of private information to the students. This information was alleged to be the information revealed by the Applicant in the meeting referred to above and/or information gathered by recording that meeting or her private conversations in her home. No evidence as to the alleged recordings was provided by the Applicant. No instance of students having access to information about, contained in, or relevant to her complaint to CIT was provided. In evidence the three students from CIT denied knowing of the complaint.
The evidence before the Tribunal did not establish that CIT had acted in a way that was incompatible with Mrs Shammas’s human rights; or, that in making any decisions in relation to her, the CIT had failed to give proper consideration to her human rights.
The Applicant alleges that she has been discriminated against by the respondent. The acts of discrimination contended for by the Applicant are:
1.the failure to properly investigate her complaint;
2.denying her access to classes;
3.expelling her from the CIT;
4.treating her unfavourably after the making of her complaint.

Amongst the allegations relating to the unfavourable treatment were that the meetings in the Counsellor’s rooms were recorded, that the Counsellor and Head of Education were passing information about what happened in that meeting to other people on campus, the comments by the teacher in the flexible learning centre about her job prospects, and that there was a deliberate and retaliatory act to give her withdrawn grades rather than pass grades in two subjects.
The Applicant alleged that the discrimination was on the grounds of her race or her age. The relevant legislation is the Discrimination Act 1991(ACT).
The relevant provisions of the Discrimination Act are s 7, s 8, s 18 and

s 68. ACAT has confined consideration in this decision to the conduct of the CIT. The conduct of the students was in evidence before ACAT, and the reaction by the Applicant is relevant. So, the conduct of the students, and the reaction to that conduct by the Applicant, is relevant as background, but the fact that any of the students did, or did not do, the things alleged cannot be attributed to the CIT.
It is the discrimination around the allegation of failure to properly investigate, and the then unfavourable treatment or the denial of access to facilities that the Tribunal has focused upon. It is the conduct of the CIT, the cause of the conduct of the CIT, and the effect of the conduct of the CIT that has to be focussed upon, not the question of whether or not the acts that the students are alleged to have done occurred or did not occur. Thus, in considering whether the conduct of CIT amounts to discrimination, the Tribunal has proceeded as if those incidents of student conduct alleged were established by the Applicant, but without so finding. The Tribunal however notes that the three student witnesses denied the alleged incidents of mocking, insulting, laughing at, looking strangely at or discussing the Applicant. There is no evidence before the Tribunal to support the allegations made by the Applicant.
Section 8 of the Discrimination Act 1981 provides,
“For this Act a person discriminates against another person if:

a) The person treats, or proposes to treat, the other person unfavourably because the other person has an attribute referred to in s 7; or
b) The person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging people because they have an attribute referred to in s 7.”

Section 7 of the act sets out the grounds and provides, “This Act applies to discrimination on the grounds of any of the following attributes”. At subparagraph (h), race, and at subparagraph (l), age are mentioned, and they are the two grounds on which the Applicant relies.
Section 18 is under the heading of “Discrimination in Other Areas – Education”, and provides at 18(2),
“It is unlawful for an educational authority to discriminate against a student:

a)       By denying the student access, or limiting the student’s access, to any benefit provided by the authority; or
b)       By expelling the student; or
c)        By subjecting the student to any other detriment.”

Section 68, under the heading “Other Unlawful Acts” deals with victimisation and provides, “It is unlawful for a person to subject someone else to any detriment because the other person has made a discrimination complaint.”
The Tribunal deals with some preliminary legal issues before considering the legislation. The first is the question of the onus of proof. There is nothing express in the Discrimination Act that says who bears the onus of proof, and it is important to turn our minds to this because very often in discrimination matters the facts are really important; something either happened, or it did not happen. If the evidence established the conduct alleged, the next step is to consider whether that conduct happened because of the grounds alleged.
In discrimination cases ACAT takes the view that the Applicant must take responsibility for the presentation of the case. The Applicant, in this case, makes assertions and allegations about the conduct of CIT. The Applicant must produce evidence that would, in the absence of any other material, establish to the satisfaction of ACAT that the conduct occurred. The respondent does not have to prove the conduct did not occur, but often will, and of course should, bring evidence in rebuttal. De Dominico v Marshall [1999] FCA 130.
Then we come to the standard of proof. Generally speaking this is the civil standard, the balance of probabilities. That is, the tribunal has to decide what was more likely to have happened: not in a broad sense, but looking at each one of the allegations, is it more likely or not that that allegation is made out? The Briginshaw test is often mentioned in discrimination matters, and ACAT takes the view that this test does not impose a higher standard of proof, but it does serve as a warning to decision makers to be careful of the evidence upon which they rely to make findings on the balance of probabilities, when these findings have very serious consequences for the person against whom they are made.
So, while it is not necessary to impose a higher standard of proof, the evidence produced by the Applicant must be able to establish that the conduct did occur, and the evidence produced by each party has to be treated and examined by any decision maker thoroughly and appropriately.
ACAT is not bound by the rules of evidence, and in the case of unrepresented litigants some latitude in procedures and evidence is allowable. In this case, there was, with the indulgence of the Respondent, a great deal of latitude and a great deal of assistance given by the Tribunal to the Applicant.
The tribunal has to be extremely careful in assessing the evidence: the evidence must be given weight, and the weight will rely on the substance, the source, and the relevance to the issues before the tribunal and the probative nature of the evidence.
So, while we might have a lot of allegations, we had a lot of witnesses, we had a lot of documents, those documents and those witness statements have to be appropriately examined and they have to be given weight, and the Tribunal must consider particularly the relevance and probative nature of the evidence.
The evidence before the tribunal consisted of documents and witnesses. The documents included the matters that are exhibits 1 to 25. The facts and contentions from the Applicant were also used by the tribunal, not as proof of what they contend, but in order to identify the range of the allegations, to help to clarify the case being made by the Applicant and on the day of final submissions, to assist the Applicant to move through all of the issues that she had raised.
The Tribunal received evidence from witnesses: CIT Teacher A, the Head of Education, the Counsellor, CIT Teacher B and CIT Teacher C, all of whom were staff from the CIT, and CIT Student B, CIT Student A, and CIT Student C, who were students at the CIT. ACAT observes that the Applicant gave a great deal of evidence in the presentation of her case, although she was not formally a witness. Much of her ‘evidence’ was about her feelings and reactions rather than about facts or events.
So, now we come to the area that the Tribunal needs to consider in this case. This is an allegation of discrimination. We then must look at what is discrimination. Section 8(1)(a) of the Discrimination Act 1991 tells us what must be established, and what must be established is that the respondent had dealt with the Applicant in a manner that was unfavourable to the Applicant and that that dealing, that unfavourable dealing, had occurred because of an attribute of the Applicant. In this case it had to be because of her age or because of her race.
Both the cases of Prezzi [1996] ACT AAT 132 (8 February 1996) and Edgeley v Federal Capital Press [2001] FCA 379 ( para 13) were referred to by the Tribunal. It is important to note that the ACT legislation imposes an objective test. This is not a comparison, it does not ask, “Were you treated less favourably than others?” It asks, “Was the Applicant treated unfavourably?” So the question is, was the treatment unfavourable? Was it unfavourable to the Applicant, and was the unfavourable treatment afforded to the Applicant on the grounds alleged? In this case because of her age or because of her race?
The Applicant complains that the unfavourable treatment was a failure by the CIT to investigate the complaint made to the Head of Education in a proper and appropriate manner. That is the core issue in the first part of the discrimination action. The Applicant submitted that:
1.The students’ evidence was that there were no approaches made by the CIT staff to the students after the Applicant had made her complaint. She says this shows that there was not a proper investigation. A proper investigation would have included approaching the students.
2.The particulars and the concrete nature of some of her complaints were not addressed. There was no investigation of laughing in class, of the hidden cameras and the refugee presentations, of the mocking, of the weird looks by brown skinned Islamic featured men. These were not followed up by the Head of Education or the CIT staff.
3.This failure was not in accordance with the CIT’s internal policy.
4.A complaint about bullying that was made by another student was handled differently, and she compares the way her complaint was handled to the way that other complaint was handled.
5.The students’ conduct did not alter after the investigation. So, from her point of view, the matter was not resolved.

The Applicant submitted to the Tribunal that each and all of these amounted to a failure to properly investigate.
The evidence of the Head of Education was that:
1.The student handbook sets out procedures for investigating informal complaints, and that those procedures were followed. The Head of Education noted that there was no written complaint and so he was following the informal complaint procedure.
2.He had spoken to the classroom teachers involved. He had asked them had they observed anything untoward in relation to the student conduct directed towards the Applicant. All three had indicated that they had not observed this. The three classroom teachers confirmed this in their evidence.
3.After his initial meeting with the Applicant he formed the view that the student counselling services should be involved, that it was appropriate for them to be involved, and he arranged for the Applicant to attend a session with the Counsellor.
4.Most of the conduct complained of by the Applicant could not properly be investigated further in any manner that would not involve a breach of confidentiality.
5.The CIT could not investigate looks, private conversations or activity not related to the CIT.

The Counsellor also gave evidence. ACAT notes that the Counsellor is the head of student counselling, and that her CV was tendered and we received evidence as to her qualifications and experience as a counsellor and as a psychologist. She noted in her evidence, in relation to the Applicant’s emotional or mental state, that the Applicant had, during the meeting with her, exhibited signs of paranoid thinking; namely, that the Applicant believed that events were related to her without any rational basis for that belief.
Further, the Counsellor stated that many of the incidents complained about by the Applicant exhibited examples of what the Counsellor referred to as, “ideas of reference”. That is, that random events took on an added personal significance to the Applicant, and she gave as examples of those the news article about the Iraqi or Iranian woman who was lashed, and CIT Student B laughing in class, or when talking to another person.
The Counsellor gave evidence that the Applicant saw these as significantly related to her and to her personal circumstances when, in all the circumstances, this was unlikely. The Counsellor gave evidence that her aim was always to attempt to resolve the issues for the Applicant, and the key thing being to ensure that she completed her course; that the CIT wanted to put in place a procedure that would allow her to complete the course, and that had been the Applicant’s wish expressed in the counselling session.
The Counsellor further noted that many of the incidents complained of could not be directly investigated. CIT staff could not, for instance, approach brown skinned Islamic featured male students and ask whether any particular student had looked in a weird way at the Applicant, without revealing both that there had been a complaint made, and the Applicant’s identity. In the Counsellor’s view, this would have been counter-productive and not have solved the problem.
The Tribunal finds, taking into account that evidence of both the Applicant and the respondent, that the Applicant has not established any failure to investigate her informal complaint. On the facts, it was investigated. On the facts, it was investigated as thoroughly as it could be given the nature of the complaints and the informal nature of the process. Further, the Tribunal finds that the method and extent of the investigation was appropriate and proper to the circumstances.
If the Tribunal is not correct in this finding, and if it should be that the investigation was not adequate, then the next step for the Applicant would be to establish that the conduct of the CIT, in failing to properly investigate the complaint, was because of her race or because of her age. No evidence was produced, nor was any submission made beyond the assertion that since the student conduct complained of by the Applicant was motivated by race, the failure to investigate it must also be so motivated.
The Applicant must establish a direct causal link between the unfavourable treatment and the attribute of the complainant; in this case, age and race. It is not necessary to establish that the Respondent intended to discriminate, but it is necessary to establish that the grounds, or the reasons for the conduct, were there, and that it was relevant.
I refer to several cases that give some clarification and explanation. The first is the Director General of Education v Breen [1982] 2 IR 93, where, at 95, Street CJ stated,
To amount to discriminatory conduct prohibited by the act, the characteristic which will provide the ground must have approximate bearing upon the act charged as discrimination. Moreover, the characteristic must have a causally operative affect upon the decision to commit, or the committing, of the act of discrimination.

In Waters v The Public Transport Corporation [1991] 173 CLR 349, the court said, at 400,
The words ‘on the ground of the status or by reason of the private life of the other person’ in the legislation require that the act of the discriminator be actuated by the status or private life of the person alleged to be discriminated against. The words ‘on the ground of’ or ‘by reason of’ require a causal connection between the act of the discriminator which treats a person unfavourably, and the status of, or private life of the person who is the subject of the act.

Further, in the case of IW v The City of Perth [1997] at 71 ALJR 943, the court said,
All that need be shown is that the alleged discriminator has acted on the ground of whatever the relevant ground is. That involves an objective characterisation of the discriminator’s ground for its conduct for which subjective intention can be relevant, but not decisive.
There is nothing in the evidence that was before me that would show that if it was found that the investigation by the CIT was not proper and was not thorough, that the conduct was in any way motivated or caused or actuated by either the age or the race of the complainant. The Applicant has not established the necessary causal connection.
Nevertheless, the Tribunal moves on to consider the section 18(2) complaint; that is, that the CIT denied the Applicant access to classes, expelled her, or subjected her to other detriment. The Applicant asserts that the CIT discriminated against her by limiting and/or preventing her from doing further study in the full time class. She states that the Head of Education was rude to her and told her to go away. She further states that he proposed that she, “Complete my course flexibly to avoid such unpleasant behaviour.”
The Applicant gave evidence that she had completed her Certificate IV/studies at the end of 2010, that she had continued to study further , that she had passed two further subjects in semester II of 2011 and was currently still enrolled at the CIT. The Head of Education denied the Applicant’s assertion that she was refused access to the classes.
Both the Head of Education and the Counsellor gave evidence that the option of completing her course through the flexible learning centre was made because the Applicant stated she was not comfortable in the classroom and that the conduct of the students caused her embarrassment and concern. In the flexible learning centre students are able to work at their own pace; there is a teacher available to assist them on a one to one basis. The Head of Education denied speaking rudely or telling the Applicant to go away. This was confirmed by the evidence of the Counsellor.
CIT Teacher B gave evidence that the Head of Education had asked him what could be done to assist Ms Shammas to complete her studies outside of the classroom. This may have been interpreted by the Applicant as an attempt to push her in one direction or the other. All of this conduct may have been so interpreted by the Applicant. The Tribunal takes into account the rational and sensible explanation that this was proposed as an alternative. There is no evidence before the Tribunal that any teachers have been instructed not to allow Ms Shammas into the classroom, there is no evidence of a letter or an instruction to Ms Shammas herself that she was not to go to the classroom.
There is evidence that this was seen by both the Head of Education and the Counsellor as a way of allowing her to achieve her aim of completing her studies. It was a way of allowing her to achieve that aim in the absence of the students whose conduct was causing her such distress. Further the evidence of CIT Teacher B was that the Head of Education has requested CIT Teacher B to do what he could to assist Ms Shammas. None of the evidence points to a refusal to assist or a refusal to teach or a refusal of access to any classes. CIT Teacher B gave uncontested evidence that the Applicant did complete one class in the flexible learning centre.
The Tribunal finds, as a matter of fact, that CIT has not expelled the Applicant, and that the CIT has not excluded the Applicant from classroom learning. The Tribunal repeats the comments made above as to the causal link. Should the Tribunal be wrong about that, there still needs to be the causal connection made to race and/or age. There was no evidence and nothing beyond a mere assertion that this must be the case.
It is not sufficient to say that, “I am an older student and I am of a particular race, and therefore any unfavourable treatment must be on those grounds.” A lot more than that has to be established. It has to be established as more likely than not at the very least, and there is nothing here, no evidence put forward by the Applicant, for the Tribunal to look at.
Nevertheless, the Tribunal moves on to section 18(2)(c), any other detriment, and section 68, victimisation. The Applicant alleges that CIT Teacher B conducted himself in a manner that made her feel unwelcome in the flexible classroom, and that he had told her that she would not be able to obtain any administrative or accounting jobs because of her language skills. There seems to be, in the assertions of the Applicant, something that would indicate that, she had believed that CIT Teacher B was telling her to get a job and to stop studying. There is nothing, except for that mere assertion, to support that.
The Applicant alleges that the conduct amounted to victimisation because she had made a complaint. Further, Ms Shammas gave evidence that her results in two subjects were recorded incorrectly as incomplete. She asserts that this was a deliberate act by CIT Teacher C. Again, this is alleged to be an act of victimisation because she had made a complaint.
CIT Teacher B confirms that he had this conversation with the Applicant on 24 March. He says that the Applicant initiated the conversation. He says that during that conversation, he encouraged her to continue studying in her chosen subject. He said he believed she had an affinity for those subjects. He said that she was a good student, that he had no trouble with her ability to handle the work, that she worked hard and that she was competent.
He did say that he had said to her that she may have had difficulty in gaining a high level job because these required a thorough understanding of, and a high level of competency in, English. He made a comparison to how he would fare if he was in France trying to get a job. ACAT believes, without wishing to be rude, that this may have been a fairly well meant but clumsy attempt to assist the Applicant. The Applicant has interpreted the example in a way that was not intended.

In giving his evidence CIT Teacher B seemed to have been at a loss to understand why the conversation had been interpreted by the Applicant in the way she indicated. He impressed as a person who is a credible witness. He was trying his best to remember things that had happened a while ago, and while it is possible to understand how the Applicant may have interpreted the conversation in the way that she did, there are no grounds for believing that there was any malice present.
The Tribunal does not accept that the conversation was meant to discourage her and, far from finding that the conversation was motivated by some notion of victimisation, views it as consistent with an attempt to comply with the Head of Education’s request to do everything he could to assist Ms Shammas to finish the course.
CIT Teacher C and the Head of Education both gave evidence relating to the incorrect recording of the Applicant’s results. The documentary evidence consisted of class rosters and marking schedules and requests for updates of results that had been provided. The evidence showed that the correct forms had been completed at the appropriate date, that some of the forms completed on that date had been correctly processed, and some of the forms had not.
Neither of the witness could advance any explanation for the error except that the correctly completed forms were sent by them to the appropriate section of the CIT, but that somewhere along the line they had not been correctly processed. It was common ground between the parties, however, that once the Applicant drew the error to the attention of CIT staff, not only was it corrected, it was corrected promptly.
The Applicant, apart from asserting that the conduct came after her complaints, produced no evidence to support the contention that the conduct was triggered by, motivated by, or, actuated by the fact that she had made a complaint. The recording of the marks was an inadvertent error. The conversation with CIT Teacher B, while it did happen, has been wrongly interpreted. It is not sufficient to say, “This is how it made me feel, therefore, this is the reason” – it is not sufficient to say; “I feel he had that conversation with me because I had made a complaint”. That does not prove that that is the reason for it. We need much more than subjective beliefs, we need some objective evidence.
The Respondent’s evidence was that even if the conversation as alleged was found to have occurred, it should be viewed as an effort to assist the Applicant. The withdrawn results should be seen as nothing more than a clerical error. In the absence of any evidence linking the conduct to the complaint, or pointing to victimisation, the Tribunal accepts the credible alternative explanations of the respondent.

Other matters

The Tribunal makes no finding as to whether the conduct of the students, as alleged by the Applicant, occurred. However, the three student witnesses denied that they had ever mocked, harassed, laughed at or breached the privacy of the Applicant. There may have been laughing and smiling and talking among the students, the students may have looked at the Applicant, however the Applicant has provided no evidence that any mocking or ridicule occurred. It is strongly denied by each student. CIT Student B conceded that he had spoken to the Applicant at the bus stop, but he vehemently denied following her and disputed the Applicant’s version of the content of the conversation
The three students deserve the thanks of the Tribunal for coming here under what was, obviously, stressful and difficult circumstances for them. They each expressed a desire not to be here. Nevertheless, they responded to the subpoenas. ACAT is of the view that they all gave honest evidence and that they recalled things that had happened a while ago, to the best of their ability. So, while no finding is made about the events alleged, the Tribunal notes that all of the applicant’s allegations were denied.
Ms Shammas was, throughout this process, including during the direction hearings, largely unrepresented. The Tribunal notes that from time to time she had some legal advice. The Tribunal has a statutory duty to assist an unrepresented litigant to prepare and present their case. The Tribunal, with the indulgence of the respondent, gave a great deal of assistance to the Applicant and allowed her a great deal of latitude in her submissions and evidence. ACAT thanks the respondent for that indulgence.
The submissions made by Ms Shammas were relevant and focussed on the context of her allegations. ACAT used her facts in her submissions to draw together what was just summarised as her complaints, and the grounds of her complaints.
The tribunal observes that Ms Shammas has persisted in her views and beliefs in relation to strongly contested factual allegations, such as whether the conversation with CIT Student B took place and what the content of it was. The Applicant has consistently repeated her assertions without any amendment, without any apparent reaction to the evidence, and without any real consideration of the witness’ contrary oral evidence.
The respondent has produced medical records and evidence relating to Centrelink applications which show several diagnoses of paranoid delusions. The Tribunal cannot make any finding about that. The Tribunal notes that the Applicant objected to one of the assessments.
The Applicant’s belief that student conduct is being directed towards her, as well as her sustained assertions that ASIO is conducting a surveillance operation at her home and that ASIO is passing information about her to the CIT for use against her; the Applicant’s belief is that she has been subject to harassment, mocking conduct and weird looks are in ACAT’s view, strongly and genuinely held by the Applicant, but that is not sufficient to establish any of the conduct as a matter of fact.
The medical evidence and the other evidence referred to may provide a credible alternate explanation for the beliefs of the Applicant. No evidence concretely supports her assertions. Even if her factual assertions were to be established, there is nothing to establish several things; first of all, most of this harassing and mocking conduct was not engaged in by the CIT or its staff, but students. In many cases, it is unidentified students, and CIT is not responsible for them, they are not their agents.
The other thing is that even if the conduct was established, and even if there was a failure to properly respond, and even if it could be argued that there was unfavourable treatment after the complaint, there is nothing to establish that any of the treatment or conduct by CIT was motivated by or connected to the race or the age of the Applicant, and there is no evidence to establish that any of the conduct was motivated by revenge or by the fact that a complaint has been made. The only conduct that ACAT can see was motivated by the complaint, involved efforts made to assist the complainant to reach the end of her studies and to complete her studies.
The Tribunal therefore orders that Applications DT11/18 and DT11/34 be dismissed.
………………………………..
Ms L. Crebbin, General President
For and on behalf of
Ms J. Lennard, Senior Member

PUBLICATION DETAILS

FILE NUMBER:	DT 11/18, and DT 11/34
PARTIES, APPLICANT:	Ban Shammas
PARTIES, RESPONDENT:	Canberra Institute of Technology
SOLICITORS FOR RESPONDENT	ACT Government Solicitor
TRIBUNAL MEMBERS:	Ms J. Lennard, Senior Member
DATES OF HEARING:	9,10,15, 16, 17 February 2012 5 March 2012
PLACE OF HEARING:	ACAT Canberra