Sumanasekera and IELTS Australia Pty Ltd - [2016] WASAT 69

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: EQUAL OPPORTUNITY ACT 1984 (WA)

CITATION: SUMANASEKERA and IELTS AUSTRALIA PTY LTD [2016] WASAT 69

MEMBER: MR J MANSVELD (SENIOR MEMBER)

HEARD: 4 DECEMBER 2015 WITH FINAL WRITTEN SUBMISSIONS RECEIVED 18 AND 23 DECEMBER 2015

DELIVERED : 23 MAY 2016

FILE NO/S: EOA 27 of 2014

BETWEEN: YASHAS SUMANASEKERA
Applicant
AND
IELTS AUSTRALIA PTY LTD
Respondent

Catchwords:

Discrimination Equal opportunity Direct discrimination Indirect discrimination Requirement or condition Goods and services Impairment Learning disability International English Language Testing System (IELTS) English language proficiency test which aims to assess participants on their ability to read, write, listen to and speak in the English language Whether IELTS is neutral as to the use that is made of its test scores Applicant given significant accommodation to sit IELTS test Whether applicant treated less favourably Whether applicant unable to comply with a requirement or condition Whether requirement or condition was not reasonable having regard to circumstances of the case Applicant failed to prove case Application dismissed

Legislation:

Equal Opportunity Act 1984 (WA), s 3, s 4, s 66A, s 66A(1), s 66A(3), s 66K, s 66K(a), s 66K(b), s 90(2)

Result:

Complaints of discrimination dismissed

Summary of Tribunal's decision:

Mr Yashas Sumanasekera, the applicant in these proceedings, had sat the International English Language Testing System (IELTS) test as part of the suite of requirements for his application for a permanent residency visa. IELTS is an English language proficiency test which aims to assess participants on their ability to read, write, listen to and speak the English language.
In February 2014, Mr Sumanasekera lodged a claim with the Equal Opportunity Commission. He alleged that he had been adversely discriminated against on the ground of an impairment by IELTS Australia Pty Ltd.
Mr Sumanasekera suffered from a learning disability, namely dyslexia, which resulted in him having limitations in his ability to spell and express his ideas in writing. His reading skills were very low compared to his peer group.
Mr Sumanasekera claimed that because of his impairment he was treated less favourably by IELTS Australia Pty Ltd than a person without his impairment.
The Tribunal found that the IELTS test was a standard test and, as such, simply measured the competence of a person in the English language (using a unique 'band score' system). The test did show why, in terms of the scoring system, one person may be more competent than another.
In that respect, the IELTS test, of itself, was not designed to account for a person's disability if as a consequence of that disability they, as with Mr Sumanasekera, had difficulties with say, spelling.
The Tribunal accepted the contention of IELTS Australia Pty Ltd that the IELTS test was one means by which proficiency in the English language was measured, but that the test was neutral as to the use that is made of the particular measure (that is, band scores).
As to the manner in which the IELTS test was conducted, the Tribunal found that Mr Sumanasekera had not demonstrated that he had been treated less favourably than a person without his impairment (his direct discrimination claim). Rather, significant adjustments and accommodation had been given to him by IELTS Australia Pty Ltd on account of his impairment, and his overall band score was evidence of the positive influence that the accommodations had on his test outcomes.
Even if it could be said that to sit the standard IELTS test (rather than one modified for his impairment) was a requirement or condition, Mr Sumanasekera's case failed on several levels (his indirect discrimination claim).
The Tribunal found that Mr Sumanasekera had not demonstrated that he was unable to comply with the requirement or condition given that his overall band scores in the IELTS test had been consistently at or above the level defined in the IELTS literature as a 'good user'.
Mr Sumanasekera had also not shown that the requirement or condition was not reasonable in the relevant sense of being not rational, logical and understandable.
Mr Sumanasekera's complaint was therefore dismissed.

Category: B

Representation:

Counsel:

Applicant: In Person
Respondent: Ms C Sim

Solicitors:

Applicant: N/A
Respondent: The JRT Partnership

Case(s) referred to in decision(s):

Abela v State of Victoria [2013] FCA 832
Australian Medical Council v Wilson (1996) 68 FCR 46
Brackenreg v Queensland University of Technology [1999] QADT 11
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Edoo v Minister for Health [2010] WASAT 74; (2010) 72 SR (WA) 16
Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99
Laurent v Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165
Tanious v Australian Medical Council Ltd [2015] NSWCA 189
Walters and Others v Public Transport Corporation (1991) 173 CLR 349
Williams and Commissioner of Police [2005] WASAT 349

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These proceedings arise in the Tribunal's original jurisdiction under the Equal Opportunity Act 1984 (WA) (EO Act).
On 17 February 2014, Mr Yashas Sumanasekera (applicant) lodged a complaint (complaint) with the Equal Opportunity Commission of Western Australia (EOC) alleging discrimination by IELTS Australia Pty Ltd (respondent).
The complaint alleges discrimination on the ground of impairment in the area of goods and services.
The EOC accepted the complaint as one of what is commonly called direct discrimination.
The impairment is a learning disability, namely dyslexia.
On 10 July 2014, the EOC dismissed the complaint. On 31 July 2014, the applicant gave the EOC written notice pursuant to s 90(2) of the EO Act requiring the Commissioner for Equal Opportunity to refer his complaint to this Tribunal. On 22 August 2014, the referral from the EOC was filed with the Tribunal.
The complaint was referred to mediation in the Tribunal on 16 October 2014, and 20 April and 25 June 2015. Mediation was not successful and the complaint was listed for a final hearing on 4 December 2015.
The applicant attended the hearing in person. The respondent was represented by counsel and appeared by telephone.
Neither the applicant nor the respondent called any witnesses.
At the hearing on 4 December 2015, the applicant and the respondent were invited to file written submissions on the alternative basis that the complaint may be one of what is commonly called indirect discrimination.
The applicant's submission was filed on 18 December 2015 and the response of the respondent was filed on 23 December 2015. These submissions (and associated documents) are detailed below.
The decision was reserved.
I have decided to dismiss the complaint. My reasons for this are as follows.

The EO Act

3. Objects

…
impairment in relation to a person, means one or more of the following conditions ‑
(a)any defect or disturbance in the normal structure or functioning of a person's body; or
(b)any defect or disturbance in the normal structure or functioning of a person's brain; or
(c)any illness or condition which impairs a person's thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour,

whether arising from a condition subsisting at birth or from an illness or injury and includes an impairment ‑
(d)which presently exists or existed in the past but has now ceased to exist; or
(e)which is imputed to the person;

…
66A. Discrimination on ground of impairment
(1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of impairment if, on the ground of ‑
(a)the impairment of the aggrieved person; or
(b)a characteristic that appertains generally to persons having the same impairment as the aggrieved person; or
(c)a characteristic that is generally imputed to persons having the same impairment as the aggrieved person; or
(d)a requirement that the aggrieved person be accompanied by or in possession of any palliative device in respect of that person's impairment,

the discriminator treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person who does not have such an impairment.
(1a)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of impairment if, on the ground of ‑
(a)the impairment of; or
(b)a characteristic that appertains generally to persons having the same impairment as; or
(c)a characteristic that is generally imputed to persons having the same impairment as,

any relative or associate of the aggrieved person, the discriminator treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person who does not have such an impairment.
(2)For the purposes of subsection (1) or (1a), circumstances in which a person treats or would treat another person who has, or has a relative or associate who has, an impairment are not materially different by reason of the fact that different accommodations or services may be required by the person who has an impairment.
(3)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of impairment if the discriminator requires the aggrieved person to comply with a requirement or condition ‑
(a)with which a substantially higher proportion of persons who do not have the same impairment as the aggrieved person comply or are able to comply; and
(b)which is not reasonable having regard to the circumstances of the case; and
(c)with which the aggrieved person does not or is not able to comply.

(4)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person who is blind, deaf, partially blind or partially deaf (in this subsection referred to as the aggrieved person) if the discriminator treats the aggrieved person less favourably on the ground of the fact that the aggrieved person possesses, or is accompanied by, a guide dog or hearing dog, or on the ground of any matter related to that fact, whether or not it is the discriminator's practice to treat less favourably any person who possesses, or is accompanied by, a dog, but nothing in this Act affects the liability of the aggrieved person for any injury, loss or damage caused by the guide dog or hearing dog.

…
66K. Goods, services and facilities
(1)It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's impairment ‑
(a)by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b)in the terms or conditions on which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c)in the manner in which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

(2)This section does not apply to discrimination against a person on the ground of impairment in relation to the provision of a service or facility where, in consequence of the person's impairment, the person requires the service to be performed or the facility to be made available in a special manner that without unjustifiable hardship ‑
(a)cannot be provided by the person providing the service or making the facility available; or
(b)cannot be provided by the person providing the service or making the facility available except on more onerous terms.

Documents filed by the parties

Both the applicant and the respondent filed with the Tribunal a statement of issues, facts and contentions, a final submission and a bundle of documents upon which they relied.
The Tribunal also relied on the referral material filed with the Tribunal by the EOC on 22 August 2014.

The applicant's impairment

The Tribunal has before it a number of documents that refer to the applicant's diagnosis of dyslexia. It is common ground that the applicant has such an impairment. In chronological order they are as follows:
•An Intellectual and Learning Assessment by Jennifer Finemore, psychologist, with assessments having been undertaken on 12 and 26 September 2006 and the subsequent report updated on 6 December 2006 (2006 report).
•A 'to whom it may concern' statement dated 13 October 2006 by Jennifer Finemore, psychologist (2006 report).
•An assessment report dated 23 September 2014 by Jennifer Finemore, psychologist (2014 report).
•A letter dated 30 January 2014 to the respondent from Dr Yure Pavic, a general practitioner.
The applicant also filed a number of academic articles on dyslexia and its impact on learning, particularly in children.
In her 2006 report, the psychologist, Ms Finemore, assessed the applicant as having a severe form of learning disability, referred to as dyslexia.
In one of the academic articles filed by the applicant, 'dyslexia' is defined as follows:
According to standard definitions, dyslexia is a disability in learning to read, spell and write despite normal intellectual capacity and educational resources, as well as adequate sociocultural opportunities. (S. Heim et al: 'Large‑scale neural correlates of developmental dyslexia'; European Child & Adolescent Psychiatry (2004) Vol 13, No 3)[.]
The psychologist states that the applicant's ability to spell and express his ideas in writing is extremely limited and his reading skills are very low compared to his peer group.
In her 2014 report the psychologist confirms her 2006 assessment that the applicant has severe dyslexia. Ms Finemore says this is a permanent condition presenting ongoing problems with reading, spelling and writing. The psychologist states that the applicant has no difficulties in understanding oral language and expressing his ideas in words.
In her 2014 report the psychologist describes a core characteristic feature of dyslexia as an inability to learn and remember phonics which she says are the letter/sound rules of language.

Adjustments or accommodation for dyslexia

In her 2006 report the psychologist recommends the following adjustments or accommodation for the applicant which may assist the applicant 'in his academic studies' (page 12 of the report):
•extra time to complete exams (20 minutes per hour should be allowed for reading and writing time during examinations);
•a reader and a scribe should be provided;
•tutoring should be provided on appropriate assistive technology programs;
•the use of assistive technology in exams would be desirable;
•assistance from an academic skills advisor or tutor to assist with comprehension of the assessment tasks and planning of work;
•where possible, lecture notes should be provided before lectures;
•where possible, access to audio or videotapes of lectures and tutorials so that the applicant can listen to the information again after the class; and that
•the applicant may find oral examinations a better way to demonstrate his knowledge rather than written exams.
As part of the applicant's 'learning strategies', the psychologist recommends, inter alia, the use of spell check software to improve spelling skills, and word prediction or word completion software programs.
In her 2014 report the psychologist refers directly to the applicant sitting the IELTS test and recommends the following adjustments or accommodation be provided specifically for that test:
•an extra 30 minutes per hour for reading and writing time;
•a computer that is spell check enabled;
•breaks during examination times chosen by the applicant;
•each of the four modules (reading; writing, listening and speaking) should be scheduled on different days; and
•the use of assistive technology software to read the exam paper to the applicant.
The applicant's general practitioner, Dr Pavic, refers to the 2006 diagnosis made by the psychologist and opines that the applicant requires a significantly longer period of time with writing, reading and verbal testing.
The respondent accepts that the applicant suffers from dyslexia which results in persistent problems with reading, spelling and writing.

The International English Language Testing System (IELTS)

The claim of the applicant in these proceedings concerns his ability to sit for the IELTS test.
The respondent has filed with the Tribunal comprehensive material describing IELTS, its development, the standard testing process and its worldwide use. It is said to be recognised and accepted by over 9,000 organisations internationally, including universities, employers, professional bodies, and immigration and other government agencies.
The respondent describes IELTS as an English language proficiency test which aims to assess participants on their ability to read, write, listen to and speak the English language. Participants are graded on their performance in the test using scores from one to nine (bands) for each part of the test comprising four modules ‑ listening, reading, writing and speaking. Results from the modules produce an overall 'band score'.
The bands are characterised in the following way:
•Band 9: Expert user;
•Band 8: Very good user;
•Band 7: Good user;
•Band 6: Competent user;
•Band 5: Modest user;
•Band 4: Limited user;
•Band 3: Extremely limited user;
•Band 2: Intermittent user; and
•Band 1: Non‑user.
The bands system is designed to measure scores in a consistent manner and is said to be not dependent on where and when the test is taken.
None of this material is disputed by the applicant.

The accommodations given by the respondent to the applicant

The dispute between the applicant and the respondent concerns the extent to which accommodation should be given to the applicant when he has sat for the IELTS test.
Over a period of time, the applicant and the respondent have had extensive communications about this matter. The outcomes of these communications are reflected as follows.
On 4 July 2014, the respondent advised the applicant that the following adjustments would be allowed, based on the medical evidence of his impairment then available:
•a private test room with individual invigilation;
•a modified version of the listening CD;
•a word processor with the spellcheck functionally disabled;
•50% additional time to complete each of the four test modules; and
•supervised breaks between tests.
On 18 September 2014, the respondent confirmed the accommodations given in the July 2014 letter (above), with the addition of an alternative to the supply of a word processor; that being the assistance of a copier ‑ namely, someone to help the applicant transfer his answers as written by him on the test paper to the answer sheet.
On 7 October 2014 and 10 February 2015, the respondent confirmed the accommodations earlier given.

On 25 March 2015, the respondent advised the applicant that an additional accommodation had been approved. The IELTS test would now be run over four separate sessions. As a consequence, the particular accommodation 'supervised breaks between tests' was no longer required and was removed.
By way of a Tribunal order made by consent on 25 June 2015, the applicant and the respondent had agreed to the following accommodations:
•the IELTS test would be taken over four separate days;
•there would be additional time to sit each module of the test;
•there would be additional breaks at the end of each module; and
•a reader would be made available to read the questions aloud (apart from during the reading test) and to ask questions about spelling.
However, the respondent did not agree to the further accommodations requested by the applicant. These were:
•removing words from the test which rely on phonics;
•providing a reader to read the applicant's answers aloud to him; and
•allowing the applicant breaks during the tests when he needed them.
In his statement of issues, facts and contentions, the applicant refers to another accommodation which has not been agreed to by the respondent, that being:
•allowing the applicant to use a 'spellchecker' during the tests.

The case presented by the applicant

The applicant says that he has sat the IELTS test eight times between 7 February and 27 June 2015. He has been undertaking the IELTS test in order to satisfy one of the requirements of a permanent resident visa for which he has applied from the Commonwealth Department of Immigration and Border Protection.
The applicant states that he is disadvantaged when taking the IELTS test because of the effects of his dyslexia. Although he has been provided with some adjustments and accommodations, the applicant maintains this is not sufficient because he is still required to sit the standard IELTS test.
The applicant submits that the respondent should provide a test suitable for the dyslexic community taking into account the impairments or disabilities inherent in that condition.
The applicant submits that the IELTS test should be modified so that it does not test the characteristics of dyslexia which includes an impaired ability to read and write. He states that although people with dyslexia do not perform well in reading and writing, they can be very fluent in English. He points to his own high score (8.5/9) in the speaking module of the IELTS test as evidence in support of this contention.
The applicant submits that if he is required to sit the standard IELTS test, he should then be permitted to use a computer with an enabled spellcheck, or a scribe who will write the answers as spoken by the applicant. Poor spelling is a characteristic of dyslexia and which the applicant characterises as the 'main symptom of my disability' (EOC referral material at page 71).
The applicant states that difficulty in reading is another deficit found in people with dyslexia and therefore that he should be allowed to use a reader during the IELTS test.
The applicant contends that the accommodation of a spell check or a reader would simply help him verify if any mistakes were present and would not give him an unfair advantage. He asserts that if a spell check or a reader were permitted for a person without dyslexia but who had a poor command of English, that person might be assisted in correcting some spelling errors but would not be assisted in correctly structuring a sentence.
The applicant submits that because he has not been given the full range of adjustments and accommodations as recommended by the psychologist, the respondent has discriminated against him because of his dyslexia.
The applicant states that he will not sit for any further IELTS test until all of the accommodations that he has asked for are provided by the respondent.

The case presented by the respondent

The respondent contends that the IELTS test is a paper‑based assessment of the English language proficiency of an individual. People who sit the test are assessed on their ability to read, write, use, listen to and speak the English language. A person's spelling is part of that assessment.
The respondent further contends that allowing the use of a spell check and a grammar check would mask the English language proficiency of the person sitting the test and would defeat the purpose of the test.
The respondent states that this would also be the case if the IELTS test was modified to remove phonemes (components of language) as the applicant seeks.
The respondent also submits that because the applicant is sitting the IELTS test as part of a suite of requirements for a visa application, the test itself is not the issue; rather, it is the use to which the test is put by the relevant body ‑ in the applicant's case, the Department of Immigration and Border Protection.
The respondent states that it is not responsible for determining the requirements (including test scores) for any visa application. Such requirements are set by the Department of Immigration and Border Protection and are outside the control of the respondent.
The respondent submits that the matter in issue is not that accommodation has not been provided to the applicant. Rather, the issue is the extent of the accommodation already provided and whether it was reasonable and adequate in light of the applicant's impairment.
The respondent contends that it has provided suitable adjustments for the applicant for his IELTS testing based on medical evidence submitted by the applicant from time to time. The specific accommodations are:
•50% additional time in each of the listening, reading, writing and speaking modules;
•a private test room with individual invigilation;
•a Mac computer with spellcheck disabled, or alternatively the assistance of a copier (someone to help transfer the applicant's answers as written by him on the test paper to the answer sheet);
•additional breaks at the end of each module;
•a modified version of the listening CD; and
•the IELTS test to be run over four separate sessions.
The respondent submits that by modifying the test conditions (that is, the accommodations), the applicant has been afforded equal opportunity to sit the IELTS test as compared to people without his particular impairment.
The respondent states that the applicant's results in the IELTS test are consistently at overall band scores of 7.0 or higher, with some individual band score variation. Importantly, this is higher than the average overall band score for participants from Sri Lanka (the applicant's country of origin), which was 6.4 in 2013.
The respondent submits that with the accommodations given to him, the applicant is capable of achieving results in the IELTS test demonstrating competence in English and that he is close to reaching the levels required for immigration purposes by the Department for Immigration and Border Protection.
The respondent questions the Tribunal's 'jurisdiction' to require that the IELTS test be rewritten (as the applicant contends that it should be) and submits that there is relevant authority that matters of academic or pastoral judgment are not matters in which courts are willing to take jurisdiction (citing Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 and Tanious v Australian Medical Council Ltd [2015] NSWCA 189).

Discussion of the issues in the case

I am satisfied, and it is not disputed by the respondent, that the applicant has an impairment as defined in s 4 of the EO Act. The impairment is the applicant's dyslexia which is characterised as a learning disability.
Section 66K of the EO Act provides that it is unlawful for a person to discriminate against another person on the ground of the person's impairment in the provision of goods, services and facilities.
The applicant bears the onus of proof in establishing his claims of discrimination. The standard of proof is the balance of probabilities but in cases of alleged discrimination, the seriousness of the allegations requires the Tribunal to adopt the approach taken in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 when assessing the strength of the evidence: see Abela v State of Victoria [2013] FCA 832 and Edoo v Minister for Health [2010] WASAT 74; (2010) 72 SR (WA) 16 (Edoo) at [53] and [54].
In the requirements for his visa application, the applicant has sat the IELTS test to assess his English language proficiency. The applicant has paid a fee to participate in the IELTS test.
It is not in dispute that the IELTS test is the provision of 'goods or services' for the purposes of the EO Act.
I accept that the IELTS test is an assessment of a person's proficiency in the English language in the areas of reading, writing, speaking and listening.
I also accept that the IELTS test is a standard test and, as such, simply measures the competence of a person in the English language (using a 'band score' system). It is not a test of why one person may be more competent than another in terms of the scoring system.
In that respect, the IELTS test, of itself, is not designed to take account of a person's disability if, as a consequence of that disability, that person, as with the applicant, has difficulties with, say, spelling.
I accept the respondent's contention that the IELTS test is one means by which proficiency in the English language is measured, but that it is neutral as to the use that is made of the particular measure (band scores).
In my view, therefore, the IELTS test, of itself, is not discriminatory. However, the use to which others might use test data could potentially raise allegations of discrimination. But such matters are not before the Tribunal.
The respondent has allowed certain adjustments which have modified the conditions under which the IELTS test is provided to the applicant.
What the applicant is seeking are additional adjustments, in particular: a spell check enabled computer (or a scribe); the removal of phonemes, or the use of a reader. Such claims, if acceded to, would, in my view, modify the IELTS test itself, which I am not convinced can be the subject of a discrimination claim in this jurisdiction.
To sustain a complaint of what is commonly called 'direct discrimination', the applicant has to show in the first place that because of his impairment, the respondent has treated him less favourably than the respondent treats, or would treat, a person without his impairment in the same circumstances, or circumstances that are not materially different (s 66A(1) of the EO Act). The other elements to sustain a claim of discrimination are set out in Laurent v Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165 where Pritchard DCJ (as her Honour then was) summarised the elements of a successful claim under s 66A(1) of the EO Act. Her Honour's observations have been frequently cited in the Tribunal. Her Honour said, at [32], that the applicant must show that:
a)he suffered from an impairment;
b)the Commissioner treated him less favourably than in the same circumstances or in circumstances that are not materially different, the Commissioner treats or would treat a person without such an impairment; and
c)he was treated less favourably on the basis of that impairment ‑ that is, there is a causal connection between the ground of discrimination alleged and the decision or act complained about;
•it is not necessary for the impairment to be the sole or a dominant or substantial ground for the relevant conduct ‑ it is enough if it is one of the grounds for the conduct;
•proof of a deliberate intention to harm or discriminate against a person is not necessary, but the act which constitutes discrimination must nevertheless be advertent and done with the knowledge of the impairment.
See also Williams and Commissioner of Police [2005] WASAT 349 at [35] ‑ [38] and the cases cited therein, and see also Edoo at [78] ‑ [80].
In Edoo at [160] ‑ [162] (internal citations omitted), the Tribunal said:
[An applicant] must prove on the balance of probabilities that the respondent treated him 'less favourably' than the respondent would have treated another person without an impairment in the same or not materially different circumstances … The expression 'less favourably' in s 36 of the EO Act bears its ordinary meaning. It calls for the Tribunal to apply its judgment to the facts found to be proved in the particular case …
To determine whether a person has been treated 'less favourably' it is necessary to identify another person in 'circumstances' which are 'the same' or 'not materially different' from the aggrieved person (a comparator) and to determine whether the manner in which the aggrieved person was treated was less favourable than the manner in which the comparator was, or would be, treated …
It is not necessary to identify an actual person in comparison with whom a complainant is less favourably treated. It may be that the comparator is hypothetical … Nevertheless, the factual foundation for conclusions about the way in which the comparator is, or would be, treated, must be established.
The applicant has not demonstrated that he has been treated less favourably in any relevant way. In fact, significant accommodation has been given to him by the respondent on account of his impairment and I accept that his overall band score is evidence of the positive influence that the adjustments have had on his test outcomes.
In this regard, the applicant resembles the complainant student in Brackenreg v Queensland University of Technology [1999] QADT 11. There, the Tribunal noticed the special adjustments made for the student and concluded, at page 18:
The evidence does not disclose discrimination as alleged during the period of the complainant[']s studies with the [respondent University]. The complainant was not treated unfavourably due to her disability, on the contrary she was treated more favourably than other students.
For broadly the same reasons, I am not satisfied that a complaint of what is commonly called 'indirect discrimination' has been made out.
In respect of a claim of indirect discrimination, the applicant must establish four separate matters if he is to prove indirect discrimination: firstly, he must show that the respondent requires him to comply with a requirement or condition; secondly, that a substantially higher proportion of persons without his impairment has complied, or is able to comply, with the requirement or condition; thirdly, the requirement or condition must not be reasonable having regard to the circumstances of the case; and, fourthly, the requirement or condition must be one with which the applicant has not complied, or is not able to comply with (s 66A(3) of the EO Act).
Even if it could be said that to sit the standard IELTS test (rather than the test that he seeks) is a requirement or condition using those terms in the way in which the terms should be used (cf Walters and Others v Public Transport Corporation (1991) 173 CLR 349), the applicant's case must fail on several levels.
The applicant has not demonstrated, in my view, that he is unable to comply with that assumed requirement or condition, given that his overall band scores in the IELTS test have been consistently at or above the level defined in the IELTS literature as that of a 'good user'.
Given what I have already said about the character or nature of the IELTS test, the applicant has also not shown that the requirement or condition is not reasonable 'in the sense of being not rational, logical and understandable': Australian Medical Council v Wilson (1996) 68 FCR 46 at [61] and [62].
The applicant's complaint is therefore dismissed.

Order

For the reasons given, the Tribunal makes the following order:
1.The complaint is dismissed.

I certify that this and the preceding [83] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J MANSVELD, SENIOR MEMBER