TGD v Australian National University - [2019] ACAT 81

ACT CIVIL & ADMINISTRATIVE TRIBUNAL 
TGD v AUSTRALIAN NATIONAL UNIVERSITY (Discrimination) [2019] ACAT 81

DT 1/2019
Catchwords: DISCRIMINATION – referral of complaint by Human Rights Commission – complaint of direct and indirect discrimination on the ground of disability and association with a person who has an attribute of disability in the areas of education and provision of goods, services or facilities – complaint of victimisation – respondent’s application to strike out parts or the whole of the application as lacking substance, foredoomed to fail and lacking any reasonable prospects of success

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 32
Discrimination Act 1991 ss 4AA, 5AA, 8, 18, 68, 121A
Human Rights Commission Act 2005 ss 42, 43, 53C, 53CA, 53E, 78

Subordinate
Legislation cited: Disability Standards for Education 2005

Cases cited:Cheluvappa v University of Canberra [2018] ACAT 108
Complainant 201823 v Insurance Australia Group Ltd trading as NRMA [2019] ACAT 64
Cooley and Australian National University [2007] ACTDT 2
Gindy v Chief Minister & ACT Government and Ors [2011] ACAT 67
Jamieson Mary v The Australian Workers Union & Another [1999] VCAT 628
Liu v The University of Melbourne [2002] VCAT 896
Mewett v University of Canberra [2018] ACAT 61
Puri v Iconic Markets and Events Pty Ltd ACN 610 470 114 [2019] ACAT 28
Shammas v Canberra Institute of Technology [2014] ACAT 2
The State Electricity Commission of Victoria v Andrew Rabel and the President & Members of the Equal Opportunity Board [1996] VSC 78

Tribunal:Presidential Member E Symons
Date of Orders:  6 September 2019
Date of Reasons for Decision:      6 September 2019AUSTRALIAN CAPITAL TERRITORY           )
CIVIL & ADMINISTRATIVE TRIBUNAL        )          DT 1/2019

BETWEEN:
TDG
Applicant

AND:
AUSTRALIAN NATIONAL UNIVERSITY
Respondent

TRIBUNAL:Presidential Member E Symons

DATE:6 September 2019
ORDER
The Tribunal orders that:

1. The strike out application is allowed.
2. Upon being satisfied that the referral from the Human Rights Commission is lacking in substance it is dismissed pursuant to section 32(2)(b) of the ACT Civil and Administrative Tribunal Act 2008.
3. The hearing listed on 10, 11 and 12 September 2019 is vacated.
…………………………………..
Presidential Member E Symons

REASONS FOR DECISION

Summary

1. In these reasons a reference to the ‘tribunal’ or ‘ACAT’ refers to the ACT Civil and Administrative Tribunal generally and ‘Tribunal’ refers to the member hearing this matter.
2. On 20 February 2017 TDG (applicant) enrolled in a double degree, Bachelor of Advanced Computing and Bachelor of Economics, at the Australian National University (respondent or ANU). In mid-2017 he was diagnosed with a disability which he registered with ANU Access and Inclusion (A&I) who issued him with an Educational Access Plan (EAP). This EAP and subsequent EAPs were prepared on the basis of medical information available to the respondent at the relevant time.
3. In semester 2 2017 and on 30 July 2017 the applicant learnt that his grandfather, who lived overseas, was hospitalised and had limited time to live. The applicant dropped one unit of study and sought course adjustments from the course convenors for the submission of tutorial-based assignments and consideration for an extension or remote submission for two of his other units of study so he could travel overseas to see his grandfather. He was overseas from about 13 August 2017 to 21 August 2017. Both course convenors approved remote submissions.
4. The applicant’s application for a deferred examination in his units was initially approved and ‘Special Exam Arrangements’ was added to his EAP on 25 August 2017. Subsequently the respondent advised the applicant of the respondent’s decision not to hold deferred examinations for two of his units of study. This followed advice from one of the course convenors to the applicant that the mid-semester exam was both optional and redemptive and that there was a mechanism in place to ensure that he was not penalised by missing the mid-semester exam as the assessment weight of that exam would be shifted to the final exam.
5. The applicant complained to Associate Dean of Education – CBE, Dr Bronwen Whiting, about this decision. On 5 October 2017 Dr Whiting advised him of her decision to allow the deferred exam for one of the units of study as the previous information around the status of that exam was unclear. Dr Whiting declined to approve the scheduling of a deferred examination for another unit on the basis that the mid-semester exam was optional and redeemable. The applicant subsequently dropped the remaining courses he was enrolled in in semester 2.
6. On 16 February 2018 the applicant made a discrimination and victimisation complaint to the Human Rights Commission (HRC) and when the HRC closed the complaint on 23 October 2018 the applicant requested his complaint be referred to the tribunal.
7. The applicant sought relief in the tribunal for unlawful discrimination against him by the respondent on the basis of his having a protected attribute, a disability, and his association with a person who has a protected attribute, namely a disability, in the area of education and in the provision of goods, services or facilities. He alleged the unlawful discrimination comprised a number of unlawful acts under the Discrimination Act 1991 (Discrimination Act).
8. In his submissions to the respondent’s application for interim and other orders filed 25 July 2019 (strike out application) the applicant added the protected attribute of ‘family responsibilities’ to his unlawful discrimination claim.
9. The respondent filed the strike out application on 12 June 2019 in which it sought that orders 3 to 8 sought by the applicant in the document he filed pursuant to directions dated 1 April 2019 be dismissed on the grounds that those proposed orders:
… are not in relation to unlawful acts that may be found by the Tribunal… do not provide ‘redress’… The applicant is not currently enrolled in a course… Orders 3, 4 and 6 are uncertain and not reasonable… Order 5 is speculative and unreasonable… the Applicant has failed to identify any loss or damage to support order 8.
In the alternative, the respondent sought that the application be dismissed as foredoomed to fail, having no arguable case, lacking substance, lacking any reasonable prospect of success and being misconceived.
10. The reasons below explain why the Tribunal has granted the respondent’s strike out application and dismissed the applicant’s substantive application.
11. In summary, the Tribunal found that the applicant’s application was lacking in substance; it lacked any reasonable prospects of success and was foredoomed to fail. The application disclosed no prima facie case of unlawful discrimination or victimisation.

Chronology

12. The Tribunal sets out below the chronology of relevant events relied on by the applicant up to his lodging of his complaint with the HRC as determined from the documentation filed with the tribunal.
13. On 20 February 2017 the applicant enrolled in a double degree, Bachelor of Advanced Computing and Bachelor of Economics, at the Australian National University.
14. In semester 1, 2017 the applicant dropped an introductory computing course (COMP1100) due, he said, “to feeling overwhelmed by the content”. He attended counselling and was referred by ANU Health Services to a medical specialist who confirmed and re-established a diagnosis of a medical condition, a disability, which had previously been diagnosed when the applicant was a child.
15. Prior to the commencement of semester 2, 2017 the applicant registered the disability with ANU A&I who issued him with an EAP.
16. In semester 2 2017 the applicant enrolled in four courses, COMP1100 (Programming as Problem Solving) in the College of Engineering and Computer Science (CECS) and ECON1102 (Macroeconomics), ECON2101 (Microeconomics) and EMET1001 (Foundations of Economic and Financial Models) in the College of Business and Economics (CBE) with his EAP.
17. The course outline for ECON1102 was released on 10 July 2017, two weeks before the first day of semester 2, 2017, and updated twice on 22 August 2017 and 28 September 2017.
18. The course outline for COMP1100 was released on 16 July 2017, eight days before the first day of semester 2, 2017 and updated on three occasions, lastly on 31 October 2017 to reflect changes to assessment dates.
19. The course outline for EMET1001 was released on 24 July 2017, the first day of semester 2 2017, when it became available to all students.
20. On 30 July 2017 the applicant learned that his grandfather and former guardian, who lived overseas, had been hospitalised and had limited time to live. The applicant dropped ECON2101 and planned to visit his grandfather.
21. Around this time the applicant began communicating with his remaining course convenors to make arrangements for his planned absence.
22. On 7 August 2017, the applicant requested adjustments for submission of tutorial-based assignments for EMET1001 and ECON1102 and consideration for an extension or remote submission in each unit. For COMP1100 the applicant arranged with his tutor, Mr Steven Han, for a copy of the lab environment to be installed on his laptop.
23. On 7 August 2017, the EMET1001 course convenor, Mr Damien Eldridge, refused the applicant’s request for an extension and approved remote submission by email directly to the head tutor. The ECON1102 convenor, Mr Cameron Gordon, told the applicant to arrange remote submission with CBE administration. On 8 August 2017 the ECON1102 course convenor approved remote submission.
24. On 12 August 2017, the applicant emailed Mr Damien Eldridge informing him that the tutor had not responded and that he, the applicant, was about to depart on the overseas travel and would not be able to submit his assignment by the deadline because he would be 28 hours in transit.
25. The applicant was overseas from 13 August 2017 to 21 August 2017.
26. On 16 August 2017 the EMET1001 course convenor sent an email to the applicant stating:
… However, I am unwilling to offer a deferred mid-semester exam. Doing so would be unfair on the other students in the class who do not have this option. …
27. On 16 August 2017, the applicant received an email from the A&I Student Access and Success Officer, Mr Philip North, who had reviewed the correspondence between the EMET1001 course convenor and the applicant and stated “… I strongly suggest making an official application for deferral of assessment of your mid-sem.”
28. On 25 August 2017 the applicant received an automatically generated email on behalf of the “Registrar Division of Student Administration” stating that his application for a deferred examination had been approved for ECON1102, EMET1001 and COMP1100 and that the relevant Colleges had been advised of his approved deferred examinations.
29. Around 25 August 2017, the respondent added Special (Alternative) Exam Arrangements (SAEs) for all exam formats, timetable exams, mid semester exams, in-class tests and quizzes, supplementary exams and deferred exams to the applicant’s EAP.
30. On 1 September 2017, the Dean of Students, Associate Professor Paula Newitt, informed the applicant in an email that she had requested that COMP1100, ECON1102 and EMET1001 course convenors hold the deferred mid-semester examinations between 14 and 20 September 2017.
31. Around the same date Student Administration advised the applicant of the decision not to hold deferred mid-semester examinations for ECON1102 and EMET1001 as an optional and redeemable assessment.
32. After receiving the automatically generated email approving the applicant’s application for deferred mid-semester exam (see [28] above), on 6 September 2017 the EMET1001 course convenor, Mr Damien Eldridge, sent two emails to the applicant. In the first email he informed the applicant that, “after further consideration, he had decided to stick with his original decision not to grant a deferred exam.” In this email and the second email, both of which were copied to the Dean of Students, he reiterated that the EMET1001 mid-semester examination was both optional and redemptive and stated:
There is already a mechanism in place to ensure that you are not penalized by missing the mid-semester exam. The assessment weight of that exam will be shifted to the final exam. As this is the solution that is available to all students in the course, I don’t think it would be fair to deviate from it.
33. On 21 September 2017 the applicant submitted a complaint to the CBE Associate Dean, Dr Bronwen Whiting. In an email dated 21 September 2017 the applicant noted that one of the course outlines he received prior to making application for a deferred exam described the mid-semester exam for ECON1102 as “compulsory and redeemable.”
34. On 5 October 2017 the Associate Dean advised the applicant of her decision to allow the deferred exam for ECON1102 “given the information around the status of the mid-semester exam in 1102 was unclear, and in fact changed during the semester.”
35. The Associate Dean declined to approve the scheduling of a deferred examination for EMET1001 on the basis that that exam was optional and redeemable.
36. By email dated 11 October 2017 to Associate Director of CECS, Dr Uwe Zimmer, the applicant complained about the behaviour of a head tutor of unit COMP1100, Mr Stephen Han. Dr Zimmer responded to this email on 12 October 2017. He stated in his reply:
…this is still very hard to read. There are many judgemental statements in there without any evidence or documentation. It also opens right away with a false accusation (I immediately cross-checked on Piazza myself and found this to be wrong):
“After the lab, I asked Steven why he censored all of my posts on Piazza.”
Can I ask you to write your concerns in a consistent, fact-oriented manner which follows basic reporting principles or not mixing sentiments and judgemental formulations (e.g. ‘unidirectional fault-finding suggestions”, “Gestapo” etc. pp.) with observations.
If you want me to respond to a concrete issue, I need to understand what your actual observations were.
37. The applicant sent a further email about Mr Han to Dr Zimmer on 12 October 2017 and in his reply Dr Zimmer stated:
…
Your tone is extremely hostile to me personally and I can only take note of this fact. I’m disappointed that you currently do not appear to be able to communicate facts in a open and non-judgemental way. Based on the context information which you provided, I can only assume that this related to your current state/condition. I would recommend that you take full advantage of counselling and support services which we provide at the ANU to help your situation.
You do not appear to have expectations that the school or college will respond in a for-you satisfactory way to your accusations, as you apparently escalated this and/or other issues to multiple higher authorities and related bodies. This is fine.
It saddens me to see you in your current state/condition and I need to strongly recommend that you look after your own health first. Your career and academic progression is of significantly less importance than your immediate health. If you want me to help you arrange for a late withdrawing-without-failure based on health grounds, you just need to ask for this explicitly.
Best – Uwe (errors in original)
38. The applicant subsequently withdrew from all units in semester 2, 2017.

The complaint to the HRC

39. The applicant complained to the HRC on 16 February 2018. In his complaint he identified eight allegations of unlawful discrimination, namely:
Complaint 1 – CBE and CECS lack of course outlines;
Complaint 2 – Non-implementation of Education Access Plan;
Complaint 3 – COMP1100 (CECS) Ad-hoc assessment;
Complaint4 – COMP1100 Punishment for Course Criticism (A) – Cessation of course feedback;
Complaint 5 – COMP1100 Punishment for Course Criticism (B) – Yelling Incident and Dismissal from Course Representative Role;
Complaint 6 – [Damien Eldridge, course convenor for EMET1001], and ANU CBE Escalation Repeat Obstructions and Discrimination;
Complaint 7 – COMP1100 (CECS) [Steven Han] Harassment and CECS Complaints Escalation; and
Complaint 8 – ANU Registrar, CBE Complaint Escalation - > CECS Interjection (Victimisation)
40. It is apparent from the complaint that the applicant believed that the respondent had discriminated against him in the areas of education and provision of goods, services and facilities based on his having the following protected attributes, disability and association with a person who has, in this case, a disability and family responsibilities. He also alleged he had been victimised.
41.         By letter dated 11 July 2018 to the HRC the applicant alleged the respondent discriminated against him on the basis of disability, family responsibilities and age and amended his complaint to include three allegations of unlawful victimisation, namely:
•   •         Victimisation by conspicuously delaying or obstructing numerous   administrative matters.
•   •         Victimisation by attempting to invoke unwarranted punitive actions rather than commencing formal complaint procedures as repeatedly requested by ANU CECS and ANU HR.
•   •         Victimisation by rejecting my application for a degree program transfer for which I exceed all requirements as well as reneging a binding approval notice already received for said transfer application.
42. The Commission closed the applicant’s complaint on 23 October 2018 under section 78(2)(f) of the HRC Act on the basis that “the commission considers that conciliation is unlikely to succeed”. On 19 December 2018 the applicant requested that the Commission refer his complaint to the Tribunal. Pursuant to section 53A of the HRC Act the Commission referred the complaint to the Tribunal on 16 January 2019.

Legislation

43. In its strike out application the respondent relied on section 32 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) which provides:
Dismissing or striking out applications
1.    (1)       This section applies if the tribunal considers that an application, or part of an application is––
(a)frivolous or vexatious; or
(b)lacking in substance; or
(c)otherwise an abuse of process; or
(d)made by a person who has been dealt with by a court or tribunal in Australia as frivolous or vexatious.
(2)     The tribunal may, by order, do 1 or more of the following:
(a)refuse to hear the application or part of the application;
(b)dismiss the application or part of the application;
(c) direct that the person who made the application not make a subsequent application to the tribunal of the kind stated in the direction—
(i)within a stated period of time; or
(ii)without the leave of the tribunal.
NoteIf the application is for review of a decision under the Heritage Act 2004, the Planning and Development Act 2007 or the Tree Protection Act 2005, the tribunal may also order the applicant to pay costs (see s 48 (2) (d)).
(3)     The tribunal may make an order under subsection (2) on its own initiative or on application by a party.
(4)     The tribunal may vary or revoke a direction given under subsection (2)(c)—
(a)on its own initiative; or
(b)on application by the person who is the subject of the order.
NoteThe tribunal must observe natural justice and procedural fairness (see s 7).
44. The meaning of discrimination is found in section 8 of the Discrimination Act which provides:
Meaning of discrimination
1.    (1)       For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.
2.    (2)       For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.
3.    (3)       For this section, a person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes.
4.    (4)       However, a condition or requirement does not give rise to indirect discrimination if it is reasonable in the circumstances.
5.    (5)       In deciding whether a condition or requirement is reasonable in the circumstances, the matters to be taken into account include—
a.(a)       the nature and extent of any disadvantage that results from imposing the condition or requirement; and
b.(b)       the feasibility of overcoming or mitigating the disadvantage; and
c.(c)       whether the disadvantage is disproportionate to the result sought by the person who imposes, or proposes to impose, the condition or requirement.

45. Section 18(2) of the Discrimination Act makes it unlawful for an educational authority to discriminate against a person by “(a) denying the student access, or limiting the student’s access, to any benefit provided by the authority or (c) subjecting the student to any other detriment.”
46. Section 68 of the Discrimination Act deals with victimisation. It provides:
Victimisation
1.    (1)       It is unlawful for a person (the first person) to subject, or threaten to subject, another person (the other person) to any detriment because—
a.(a)       he other person, or someone associated with the other person—
i.(i)        has taken discrimination action; or
ii.(ii)       proposes to take discrimination action; or
a.(b)       the first person believes the other person, or someone associated with the other person—
i.(i)        has taken discrimination action; or
ii.(ii)       proposes to take discrimination action.
1.    (2)       In this section:
discrimination action means any of the following:
a.(a)       begin a proceeding in the ACAT or a court in relation to this Act;
b.(b)       make a discrimination complaint;
c.(c) participate in or assist with, a criminal investigation in relation to an offence under the Criminal Code, section 750 (Serious vilification);
d.(d) give information or produce a document or other thing to a person exercising a function under the HRC Act in relation to a discrimination complaint;
e.(e) give information, produce a document or other thing or answer a question when required under the HRC Act in relation to a discrimination complaint;
f.(f)       give evidence or produce a document or thing to the ACAT or a court in relation to this Act;
g.(g)       reasonably assert any rights that the other person, or someone else, has under this Act;
h.(h) claim that a person has committed an act that is unlawful under this Act, or is an offence against the Criminal Code, section 750, other than a claim that is false and not made honestly;
i.(i)        do anything else in accordance with this Act.
discrimination complaint means a complaint under the HRC Act about an unlawful act.
HRC Act means the Human Rights Commission Act 2005
47. Section 121A of the Discrimination Act refers to acts and omissions of representatives and provides:
Acts and omissions of representatives
1.    (1)       This section applies to the doing of an unlawful act (conduct).
Note 1A complaint may be made about an unlawful act (see Human Rights Commission Act 2005, s 42 (1) (c)).
Note 2Doing an act—see s 4A.
(2)     Conduct engaged in on behalf of a person by a representative of the person is taken to have been engaged in by the person if the conduct was within the scope of the representative's actual or apparent authority.
(3)     However, subsection (2) does not apply if the person establishes that the person took all reasonable steps to prevent the representative from engaging in the conduct.
(4)     In this section:
representative, of a person, means an employee or agent of the person
48. Section 42(1)(c) of the Human Rights Commission Act 2005 (HRC Act) provides that a complaint about an unlawful act under the Discrimination Act may be made under the HRC Act. Section 43(1)(a) of the HRC Act provides that a complaint may be made to the Commission under the HRC Act by a person aggrieved by the act or service.
49. Section 53CA of the HRC Act refers to the onus of establishing a discrimination complaint and provides:
1.    (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.(a)       treating, or proposing to treat, the other person unfavourably because of a protected attribute of the other person (direct discrimination ); or
b.(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 ).
1.    (2)       It is a rebuttable presumption that discrimination has occurred if the complainant—
a.(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, an effect of disadvantaging the other person; and
a.(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.
1.    (3)       The presumption under subsection (2) is rebutted if the person complained about establishes that—
a.(a)       for a complaint about direct discrimination—the treatment is not because of a protected attribute of the other person; or
b.(b)       for a complaint about indirect discrimination—the effect of disadvantaging a person is not because of a protected attribute of the other person.
NoteThe onus of establishing an exception or exemption to discrimination is on the person seeking to rely on it (see Discrimination Act 1991, s 70).
1.    (4)       In this section:
protected attribute means a protected attribute under the Discrimination Act 1991
50. Section 53E of the HRC Act sets out the matters to be considered and the kinds of orders the tribunal can make. It provides:
53E Kinds of orders—unlawful acts under the Discrimination Act
1.    (1)       This section applies if—
a.(a)       the commission refers a complaint to the ACAT under this division; and
(b)the ACAT is satisfied that the person complained about engaged in an unlawful act.
1.    (2)       The ACAT must make 1 or more of the following orders:
a.(a)       that the person complained about not repeat or continue the unlawful act;
b.(b)       that the person complained about perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act;
(c)unless the complaint has been dealt with as a representative complaint—that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.
(3)     In making an order under subsection (2) (c), the ACAT must consider—
(a)the person's right to equality before the law and the impact of the discrimination on the enjoyment of that right; and
(b)the inherent dignity of all people and the impact of the discrimination on the person's dignity; and
a.(c)       the public interest in ensuring an appropriate balance between the right to equal and effective protection against discrimination and equality before the law without distinction or discrimination and other human rights; and
b.(d)       the nature of the discrimination; and
c.(e)       any mitigating factors.
Examples—par (b)—impact of discrimination
distress, humiliation, loss of self-esteem, loss of enjoyment of life
Example—par (c)—other human rights
freedom of expression
Examples—par (d)
serious or repeated discrimination, intentional or malicious discrimination, discrimination on the grounds of 2 or more protected attributes under the Discrimination Act 1991
Examples—par (e)
a public apology, systemic changes to protect against further discrimination
(4)     The commission may, with the ACAT's consent, intervene in a complaint to make submissions about an order under subsection (2) (c).
(5)     In this section:
representative complaint means a complaint that is dealt with by the commission as a representative complaint under section 71.

The tribunal proceedings

51. The tribunal stated in Mewett v University of Canberra:
The Tribunal regards complaints referred by the Commission under section 53A as applications made to the Tribunal under section 9 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). The complainant becomes the applicant for the purposes before the tribunal. The person or entity complained about is the respondent. This is consistent with section 53C of the HRC Act which provides that the parties to tribunal proceedings on a complaint referred to the tribunal, are the complainant and the person complained about.
52. On 1 April 2019 the tribunal directed the applicant file a document setting out the orders he asked the Tribunal to make. The applicant filed a document on 15 April 2019 in which he sought the following orders (Proposed Orders):
1.1. The respondent has engaged in an act of ‘direct’ discrimination under sections 8(2) and 18 of the Discrimination Act 1991 against the applicant on the basis of his disability and family responsibilities.
2.2. In the alternative, the respondent has engaged in an act of ‘indirect’ discrimination under sections 8(3) and 18 of the Discrimination Act 1991 against the applicant on the basis of his disability and family responsibilities.
3.3. Upon the applicant providing medical evidence in support of reasonable adjustments for his disabilities, the respondent will prepare and implement an Education Access Plan (EAP) and assist the applicant to provide the EAP to Course Convenors, lecturers and tutors with responsibilities to the applicant in the courses that he is enrolled in at least two weeks prior to the courses commencing.
4.4. Upon the applicant providing medical evidence in support of reasonable adjustments for his disabilities, the respondent will provide the applicant with draft course outlines four weeks prior to the commencement of courses that the applicant is enrolled in.
5.5. If the applicant takes on the role of Course Representative in a course or courses, the respondent will not dismiss him without providing him with notice of its intention to do so and inviting him to make representations as to why it should not do so.
6.6. Upon the applicant providing medical evidence that he requires a deferred examination or examinations, the respondent will refer that evidence to its Examination Graduations and Prizes Office for determination and will provide that determination to the Course Convenors for the courses involved. If any Course Convenor disagrees with the determination, it should be referred to the ANU Registrar for decision within seven days.
7.7. The respondent will provide induction and annual refresher training for its staff on discrimination on the grounds of disability; family responsibilities; association with persons with disabilities; and vilification.
8.8. The respondent pay to the applicant an amount to be determined by the Tribunal by way of compensation for the loss or damage suffered by the applicant because of the unlawful act of the respondent.
53. In his submissions filed 25 July 2019, the applicant conceded that Order 5 sought in his Proposed Orders ought to be dismissed.
54. In its response the respondent accepted that the applicant has a disability as defined by section 5AA of the Discrimination Act and opposed the Proposed Orders because:
a.     (a)       in relation to Proposed Orders 1 and 2, the University has not unlawfully discriminated against the Complainant and nor has he been unlawfully victimised;
b.    (b)       In relation to Proposed Orders 3 to 7:
i.(i)        the University has not unlawfully discriminated against the Complainant and nor has he been unlawfully victimised; and
ii.(ii)       the ACT Civil and Administrative Tribunal does not have the jurisdiction to make the Proposed Orders. This is because those orders go beyond what is reasonable for the Tribunal to order the University:
A.(A) not repeat or continue any alleged unlawful act – in all cases, if made, the orders will result in more favourable treatment for the Complainant: see paragraph 53E(2)(a) of the HRC Act;
B.(B) to perform a stated reasonable act to redress any loss or damage suffered by a person – the stated acts do not address loss or damage allegedly suffered by the Complainant, but appear to relate to how the Complaint would like to be treated in the future: see paragraph 53E(2)(b) of the HRC Act.
a.     (c)       in relation to Proposed Order 8, the University has not unlawfully discriminated against the Complainant and nor has he been unlawfully victimised.

Strike out application

55.         In the strike out application filed on 12 June 2019 the respondent sought, in summary:
a.(a) That the proposed orders 3 – 8 sought by the applicant be dismissed on the following grounds:
i.   (i) The orders are not in in relation to unlawful acts that may be found by the Tribunal.
ii.     (ii)       The orders do not provide ‘redress’.
iii.    (iii)      The applicant is not currently enrolled in a course.
iv.   (iv)      Orders 3, 4 and 6 are uncertain and unreasonable.
v.     (v)       Order 5 is speculative and unreasonable.
vi.   (vi)      The applicant has failed to identify any loss or damage to support Order 8.
a.(b) In the alternative, the applicant’s application should be dismissed for lacking substance on the following grounds:
i. (i) The application is misconceived as Orders 3 to 8 are not orders empowered by section 53E(2) of the HRC Act.
ii.     (ii)       The application lacks substance, is foredoomed to fail and lacks any reasonable prospects of success.
iii.    (iii)      Even if the applicant were able to make out an arguable case that the respondent has engaged in unlawful acts (which the respondent denies), there is no arguable case for the Tribunal to make orders responding to any such unlawful acts.
iv.   (iv)      The tribunal has previously found that where a complaint of discrimination and victimisation against a tertiary institution does not make out an arguable case, it should dismissed.

Applicant’s contentions in response to the strike out application

a.56.         In his submissions to the strike out application the applicant contends at [42]:
… the Respondent, through its employees, unlawfully discriminated against him because of his disability through the following acts (or omissions):
(a)     failing, refusing or neglecting to implement his EAPs, including at a time when the Applicant notified the relevant Respondent University course contacts about his need to travel overseas due to his grandfather’s illness. The Applicant’s grandfather subsequently passed away on 4 March 2019;
(b)     failing to take reasonable steps to ensure that the course or programs in which the Applicant was enrolled were designed in such a way that the Applicant is able to participate in the learning experiences (including the assessment and certification requirements) of the course or program, and any relevant supplementary course or program, on the same basis as a student without a disability, and without experiencing discrimination as required by clause 6.2 of the Commonwealth Disability Standards for Education 2005 (Disability Standards).
(c)     subjecting the Applicant to harassing behaviour by the tutor of unit COMP1100, namely Mr Han, and by the Associate Director of the Respondent’s College of Engineering and Computer Science (CECS), namely Dr Uwe Zimmer, because of his disability;
(d)     Dr Zimmer not properly responding to the Applicant’s complaint about Mr Han, and Dr Zimmer suggesting that the Applicant’s complaint lacked merit due to the Applicant’s mental state, and failing, refusing or neglecting to take appropriate action on the Applicant’s complaint; and
(e)     by failing to take reasonable steps to ensure any further adjustment required to be made is made within a reasonable time in accordance with clause 3.7(1) of the Disability Standards.

a.57. The applicant submitted, in support of his contentions, that the respondent’s failure to provide appropriate course outlines prior to the commencement of the semester; its refusal to grant his requests for an extension in submitting assignments in August 2017 and to its refusal to allow him deferred mid-semester examinations impacted on his disability and his family obligations and amounted to unlawful discrimination against him.

Respondent’s submissions in reply to applicant’s submissions in relation to application for interim or other orders

a.58. The respondent contends:
…that the test for the Tribunal to consider for the purposes of the Application is not whether the Respondent has not engaged in an unlawful act, but rather whether on the balance of probabilities, the respondent has engaged in an unlawful act. Based on the evidence and submissions filed by the Applicant, … the Tribunal cannot be satisfied that the Respondent has engaged in unlawful acts. Accordingly, the Proposed Orders cannot be made because they are not in relation to unlawful acts for the purposes of s.53E of the HRC.

The strike out application

a.59.         The parties agreed to the Tribunal determining the respondent’s strike out application on the papers. The Tribunal has considered:
a.(a)        The applicant’s complaint to the HRC lodged on 16 February 2018 with the following attachments:
a.  (i)         Medical report ANU Health Service dated 16 October 2017.
b.  (ii)        Medical report by a specialist dated 18 October 2017.
c.  (iii)       Email from A&I to CBE and CECS and the applicant regarding registration with A&I and attaching applicant’s EAP dated 24 July 2017.
d.  (iv)       An email thread in relation to “Deferred Mid-Semester Exam Request” between 25 August 2017 and 6 September 2017.
e.  (v)        Email from Dean of Students to the applicant dated 1 September 2017 regarding holding of deferred exams.
f.  (vi)       An email thread in relation to ‘Steven X. Han’ between 26 September 2017 and 12 October 2017.
a.(b)       Applicant’s letter to HRC dated 11 July 2018.
b.(c)        Proposed Orders sought by the applicant.
c.(d)       Respondent’s response to the applicant’s complaint.
d.(e)        Respondent’s application for interim or other orders and attachment.
e.(f)        Applicant’s submissions to application for interim or other orders and Attachment.
f.(g) Disability Standards for Education 2005 plus Guidance Notes.
g.(h)        Respondent’s submissions in reply to applicant’s submissions in relation to application for interim or other orders.

a.60. This is the Tribunal’s decision.

The Tribunal’s powers

a.61.         In Gindy v Chief Minister & ACT Government and Ors (Gindy) the tribunal stated in relation to its powers:
13.    The tribunal is a creature of statute. This statement, while trite, encapsulates a proposition that underpins each action the tribunal takes. The tribunal may only do things, make decisions and exercise powers, which a law specifically authorises it to do. It is recognised that a statutory decision-making body may do things that are, by implication, necessary to give effect to an express power, but the Tribunal must be able to ground its actions on an express power.
14.    The importance of this fundamental principle has been reinforced in relation to this tribunal recently by his Honour Refshauge J in the matter reported as The Appellants v The Law Society of the ACT and the Legal Practitioner [2011] ACTSC 133.

Issues

a.62.         The Tribunal has adopted the issues for determination of the strike out application as set out by the applicant:
1.    36.1.    whether the Applicant’s Orders should be dismissed on grounds that:
a.(a)       the orders sought are not in relation to unlawful acts that may be found by the Tribunal;
b.(b) the orders sought are not orders within the scope of section 53E of the HRC Act because:
i.(i)        the orders are based on hypothetical circumstances; and
ii.(ii)       the orders do not provide ‘redress’;

1.    36.2.    whether orders 3, 4 and 6 of the Applicant’s Orders should be dismissed on grounds that they are uncertain and unreasonable;
2.    36.3.    whether order 5 of the Applicant’s Orders should be dismissed on grounds that it is speculative and unreasonable;
3.    36.4.    Whether order 8 of the Applicant’s Orders should be dismissed on grounds that the Applicant has not identified any loss or damage to support order 8;
4.    36.5.    whether the [substantive] Application should be dismissed for lacking substance on grounds that
i.i. the Applicant’s Orders are not empowered by subsection 53E(2) of the HRC Act and are misconceived; and
ii.ii.         with respect to the orders sought, the application lacks substance, is foredoomed to fail, and lacks any reasonable prospects of success.

Consideration

63. The applicant confirmed, at the directions hearing on 18 February 2019, that the relevant complaint was confined to his initial complaint to the HRC and his letter to the HRC dated 11 July 2018.
64. The onus of proof is on the respondent as it has applied for the dismissal or strike out of the applicant’s application.
65. The Tribunal agrees with the respondent that the test to be applied by the Tribunal is whether, on the balance of probabilities, it can be satisfied that the respondent has engaged in an unlawful act and not, as the applicant submitted, whether the Tribunal cannot now be properly satisfied, on the balance of probabilities, that the respondent has not engaged in unlawful conduct.
66. In Cheluvappa v University of Canberra (Cheluvappa) the tribunal referred to a decision of the Victorian Court of Appeal in State Electricity Commission of Victoria v Andrew Rabel and the President & Members of the Equal Opportunity Board (Rabel) where that court considered the approach to be taken in applications for summary dismissal in a discrimination matter. The tribunal stated at [39]:
In Rabel, the Court of Appeal set out the principles for considering an application to strike out or dismiss a complaint at a preliminary stage of the proceedings in the context of a discrimination matter. The principles were summarised by the Victorian Civil and Administrative Tribunal (VCAT) in Jamieson Mary v The Australian Workers Union & Another (Jamieson Mary) as follows:
(1)Section 109 (Victorian Equal Opportunity Act 1995) permits an application to be made by the respondent at a preliminary stage; s75 (VCAT Act 1998) permits an order to be made at any time including on the Tribunal's own initiative. The procedure to be adopted is in the Tribunal's discretion. The proceeding may be determined on the pleadings and submissions alone, or by allowing the parties to put forward further material, including affidavits and oral evidence.
(2)If in a proceeding a complainant indicates to the Tribunal that the whole of their case is contained in the material put before the Tribunal, the Tribunal is entitled to determine the matter by asking whether, on all the material before it, there is a question of real substance to go to a full hearing.
(3)However, if a complainant indicates that there is other evidence they can call to support their claim and the Tribunal does not permit that evidence to be called, the Tribunal cannot determine the matter on the basis that the complainant's material contains the whole of their case.
(4)A proceeding to dismiss or strike out a complaint is similar to an application to the Supreme Court in civil proceedings for summary dismissal. Both are designed to prevent abuses of process. However, it is a serious matter for the Tribunal, in an interlocutory proceeding which will generally not involve the hearing of oral evidence, to deprive a litigant of the chance to have their complaint heard in the ordinary course.
(5)In an application, the respondent bears the onus of showing that the complainant's case ought not be allowed to proceed. In a s75 hearing where the Tribunal proceeds on its own initiative the Tribunal must be satisfied on all the material before it that the complaint should not be allowed to proceed.
(6)For a dismissal or strike out to succeed, a respondent must show, or the Tribunal when proceeding on its own initiative must be satisfied, that the complainant's case is obviously hopeless and untenable or that it could on no reasonable view justify relief. The Tribunal's power to dismiss or strike out a complaint should however be exercised with caution and consistently with the objectives of the Act.
(7)In dealing with a dismissal or strike out matter a clear distinction must be drawn between the complaint or claim itself and the evidence which is to be given in support of it. A complaint cannot be dismissed or struck out as lacking in substance merely because it does not in itself contain the evidence supporting the claims.
(8)A complaint can be dismissed or struck out if it is obviously unsustainable in law or in fact. This will include, but is not limited to, a case where a complaint can be said to disclose no reasonable cause of action, or where the respondent can show a defence sufficient to warrant the summary termination of the complaint.
(9)The Tribunal should not apply technical, artificial or mechanical rules in coming to a view about the case that a complainant wishes to advance.
Two additional comments should be made. First, if the material before the Tribunal shows that there is a dispute between the parties as to a fact in issue and the material does not assist the Tribunal to resolve the dispute, then it would be difficult for the Tribunal to be satisfied that the complaint is so lacking in substance that it should be dismissed or struck out.
Second, if the respondents have satisfied the Tribunal that the complaint or any part of it is frivolous, vexatious, misconceived or lacking in substance in respect of any element essential for the complainant to prove in order to substantiate the complaint at a full hearing, then the complaint or the relevant part of the complaint should be dismissed or struck out.

In the present matter the tribunal determined the application for summary dismissal at an interlocutory stage on the basis of the pleadings and submissions. No affidavits or witness statements were filed; no oral evidence was given.
The applicant’s protected attributes

68. The respondent accepted that the applicant has a disability as defined by section 5AA of the HRC Act. The applicant also provided copies of medical reports from the ANU Health Service and a specialist to the HRC which have been made available to the Tribunal. The Tribunal is satisfied that these reports confirm the applicant’s diagnosis of a disability.
69. The respondent prepared EAPs for the applicant to assist him with his studies. The EAPs were prepared on the basis of the medical information available to the respondent at the time.
70. There was insufficient material before the Tribunal to enable it to determine whether the applicant also had the protected attributes of ‘association with a person with a disability’ and ‘family responsibilities’ at the relevant time for the purposes of the HRC Act.
Issue 1(i): Whether the orders sought by the applicant are in relation to unlawful acts
71. In the strike out application the respondent seeks that the orders 3 to 8 of the Proposed Orders, which are set out in [52] above, be dismissed on a number of grounds but essentially because these orders are not orders empowered by section 53E(2) of the HRC Act. The applicant has conceded that Order 5 should be dismissed. In the alternative the respondent seeks that the application be dismissed for lacking in substance.
72. The Tribunal can only make orders under section 53E(2) of the HRC Act upon referral from the HRC, which has happened in this matter, and if the Tribunal is satisfied that the respondent has engaged in an unlawful act (see section 53E(1)(a) and (b) of the HRC Act).
73. The Tribunal will now consider the documents to determine whether the respondent has engaged in an unlawful act for the purpose of the HRC Act. The Tribunal found that the applicant’s complaints to the HRC were troubling. They were written in accusatory, dogmatic, opinionated and confrontational language. The Tribunal agrees with Dr Zimmer’s assessment (see [36] and [37] above) of the applicant’s communication as judgmental. In Cooley and Australian National University, a claim brought in the then ACT Discrimination Tribunal, Deputy President Peedom said:
Whether a detriment has been suffered is to be determined objectively and not by the subjective perceptions of either the complainant or the respondent. (see Ellis v Mount Scorpus Memorial College [1996] VADT 16 (29 March 1996)).
The contents of the applicant’s documentation, which he had prepared, have not assisted the Tribunal to make findings of fact or to draw conclusions that have the character of reliability and reasonable substance.
74. The Tribunal is also mindful of the statement by the VCAT Deputy President Macnamara, in Liu v The University of Melbourne when considering an application by the University of Melbourne to summarily dismiss Dr Liu’s complaint of racial discrimination. Deputy President Macnamara referred to the various things that are to be regarded as attributes in section 6 of the Equal Opportunity Act 1995 (Vic)(EOA) at [18] which included race and said:
The EOA does not mean that any person who suffers adverse treatment, perhaps treatment which is in breach of the rule of natural justice, tortious, criminal or otherwise wrongful has suffered discrimination merely because that person has a particular attribute. All of us have some of these attributes … The question is, is there substance to the contention (and by that I mean … material sufficient to call for an answer) that that adverse treatment derives from a particular attribute, namely his race or the putative disability.
75. Deputy President Macnamara found that the totality of matters of which Dr Liu complained did not have sufficient substance to prove to any reasonable tribunal that he was the victim of racial discrimination and summarily dismissed the complaint.
76. The alleged unlawful acts or omissions are set out at [56] and [57] above. The applicant refined the alleged acts or omissions in relation to the implementation of his EAPs generally to “the absence of appropriate course outlines” as a result of which “he could not plan and manage the logistics of his enrolment and external commitments and made implementation of the EAPs impossible”. Specifically, he identified the following failures:
a.(a) Failure to provide him with the EMET1001 course outline prior to the commencement of semester 2.
b.(b) Failure to provide him with the correct version of the ECON1102 course outline prior to the commencement of semester 2.
c.(c) Failure to provide him with the COMP1100 course outline prior to the commencement of semester 2.
d.(d) Providing him with the course outlines for EMET1001, ECON1102 and COMP1100 at the same time as other students.
77. The applicant did acknowledge, however, that his EAPs stated “Detailed course outlines to be made available prior to the beginning of semester (where possible)” (emphasis added).
78.         The applicant also alleged that the respondent failed to properly implement its EAPs by:
b.(a) refusing his requests for extensions of assignments while he was overseas in August 2017;
c.(b) refusing, failing or neglecting to implement the reasonable adjustments recommended in his EAPs including refusing deferred exams recommended by Mr North;
d.(c) not providing access to all or full recordings of EMET1001 lectures, including audio; and
e.(d) for COMP1100:
i.   (i) see (a) above and requiring him to submit assignments remotely when a lab environment needed to be installed on his laptop computer;
ii.     (ii)       lack of instructions, learning outcomes and marking rubrics in timeframes recommended by his EAPs and unclear expectations regarding time to be spent on course work; and
iii.    (iii)      Steven Han not providing requested feedback on assignments after the applicant advised him of difficulties he was having with the course because of disability, which exacerbated his anxiety.
79. The Tribunal finds that while the applicant’s EAPs included provision for course outlines to be made available prior to the beginning of the semester the EAPs clearly included the qualifying words “where possible.” The Tribunal accepts the respondent’s submission in [17], [18] and [19] above that two of the course outlines were provided before the commencement of semester 2 and the third course outline was provided on the first day of semester 2. Some of the course outlines evolved and, appropriately, newer versions of the outlines were then made available.
80. There was no evidence of the applicant requesting copies of the course outlines before they were made available to all students. The Tribunal agrees with the respondent that the issue of whether the course outlines complied with the respondent’s policies is irrelevant. The fact is that the respondent treated the applicant favourably through providing him with assistance through A&I who in turn prepared EAPs.
81. For these reasons the Tribunal finds that the applicant’s claim is without substance. There is no credible evidence that the respondent treated the applicant unfavourably because of his protected attribute. There is no substance to the allegations that the respondent engaged in an unlawful act or acts for the purposes of the Discrimination Act in relation to the allegations in [76] above.
82. In relation to the alleged unlawful acts in refusing his request for extensions ([78a] above) when travelling overseas the Tribunal notes that the applicant, himself, stated in his complaint that he contacted EMET1001 and ECON1002 conveners “to request extension or remote submission for the weekly assessment” (emphasis added). Both course convenors agreed to the applicant’s alternative proposal to him submitting the weekly assessment remotely.
83. The Tribunal is not satisfied that by denying the ‘extension’ and allowing the remote submission of the assessments, in circumstances where that was one of the two options put forward by the applicant, the respondent treated the applicant unfavourably because of a protected attribute. The Tribunal is also not satisfied that, in denying the ‘extension,’ the respondent imposed a condition or requirement on the applicant that had, or was likely to have, the effect of disadvantaging him because of his protected attribute. The Tribunal finds that these allegations in [78(a)] are without substance.
84. In relation to the alleged unlawful act of ‘refusing deferred exams’ which Mr North of A&I had recommended, the Tribunal finds that the applicant, appropriately, escalated a complaint to the Dean of Students who decided to allow a deferred mid-semester exam in ECON 1102 “as the information around the status of that exam was unclear and changed during the semester.” The Dean upheld the Dr Eldridge’s decision in EMET1001 to decline approving the scheduling of a deferred examination as that examination was ‘optional and redeemable.’
85.         The Tribunal notes that section 3.4 of the Disability Standards refers to reasonable adjustments in relation to a student with a disability and provides:
Reasonable adjustments
(1)     For these Standards, an adjustment is reasonable in relation to a student with a disability if it balances the interests of all parties affected.
Note Judgements about what is reasonable for a particular student, or a group of students, with a particular disability may change over time.
(2)     In assessing whether a particular adjustment for a student is reasonable, regard should be had to all the relevant circumstances and interests, including the following:
(a)the student’s disability;
(b)the views of the student or the student’s associate, given under section 3.5;
(c)the effect of the adjustment on the student, including the effect on the student’s:
(i)ability to achieve learning outcomes; and
(ii)ability to participate in courses or programs; and
(iii)independence;
(d)the effect of the proposed adjustment on anyone else affected, including the education provider, staff and other students;
(e)the costs and benefits of making the adjustment.
NoteA detailed assessment, which might include an independent expert assessment, may be required in order to determine what adjustments are necessary for a student. The type and extent of the adjustments may vary depending on the individual requirements of the student and other relevant circumstances. Multiple adjustments may be required and may include multiple activities. Adjustments may not be required for a student with a disability in some circumstances.
The Standards generally require providers to make reasonable adjustments where necessary. There is no requirement to make unreasonable adjustments. In addition, section 10.2 provides that it is not unlawful for an education provider to fail to comply with a requirement of these Standards if, and to the extent that, compliance would impose unjustifiable hardship on the provider. The concept of unreasonable adjustment is different to the concept of unjustifiable hardship on the provider. In determining whether an adjustment is reasonable the factors in subsection 3.4 (2) are considered, including any effect of the proposed adjustment on anyone else affected, including the education provider, staff and other students, and the costs and benefits of making the adjustment. The specific concept of unjustifiable hardship is not considered. It is only when it has been determined that the adjustment is reasonable that it is necessary to go on and consider, if relevant, whether this would none-the-less impose the specific concept of unjustifiable hardship on the provider.
(3)     In assessing whether an adjustment to the course of the course or program in which the student is enrolled, or proposes to be enrolled, is reasonable, the provider is entitled to maintain the academic requirements of the course or program, and other requirements or components that are inherent in or essential to its nature.
NoteIn providing for students with disabilities, a provider may continue to ensure the integrity of its courses or programs and assessment requirements and processes, so that those on whom it confers an award can present themselves as having the appropriate knowledge, experience and expertise implicit in the holding of that particular award.
86. Dr Eldridge, in his email of 16 August 2017 to the applicant, referred to the effect of granting the applicant a deferred mid-semester exam on the other students in the class who do not have this option. This exam was both optional and redeemable. While it was available to all students, including those with a disability, it was not unlawful or unreasonable for the respondent to refuse the applicant’s request for a deferred mid-term assessment when this option was clearly available. Dr Eldridge was entitled to maintain the academic requirements of the course (see [85] above). The Tribunal is satisfied that the applicant’s complaint was dealt with fairly.

87. The Tribunal is satisfied that the respondent took reasonable steps to ensure that the applicant’s disability was accommodated. The Tribunal finds that, in relation to this matter, the respondent did not treat the applicant unfavourably because of a protected attribute or impose a condition or requirement on him that had, or was likely to have, the effect of disadvantaging him because of a Protected Attribute. The Tribunal finds that this allegation in [78(b)] is without substance.
88. In relation to the alleged unlawful act or acts of inaudible recording of EMET1001 lectures, the Tribunal notes that the applicant has not identified the lecture recordings the subject of this complaint. Based on the information provided by the respondent, it appears that the applicant’s concerns relate to circumstances where the lectures went over time by a matter of minutes.
89. The applicant’s EAPs included “Record lecture – contact Access and Inclusion if lecture cannot be recorded.” There was no evidence that the applicant had contacted A&I about the recording of the lectures. The Tribunal is satisfied that the respondent took reasonable steps to ensure that the applicant’s disability was accommodated by the appropriate inclusion for recording lectures in his EAP, and in doing so, took reasonable steps to ensure that unlawful acts do not occur in relation to the recording of lectures and their provision to students.
90. The Tribunal cannot be satisfied, in relation to this allegation, that the respondent treated the applicant unfavourably because of a protected attribute or imposed a condition or requirement on him that had, or was likely to have, the effect of disadvantaging him because of a protected attribute. The Tribunal finds that this allegation in [78(c)] is without substance.
91. The alleged unlawful acts in [78(d)(i),(ii)] above, appear to also be the subject of the applicant’s Complaint 3 to the HRC. The applicant identifies in Complaint 3 to the HRC one lab in COMP1100 which occurred in the week he was overseas taking him 15 hours to complete and alleges that the respondent discriminated against him due to the assessment instructions, learning outcomes and marking rubric not being made available to him in a course outline and by the expectations of coursework being ambiguous, unmetered and unreasonably high.
92. The applicant discussed this lab and the time taken with the tutor, Steven Han, on his return. When Mr Han, apparently, stated that 15 hours was normal, the applicant asserted “SH would confirm that he believed that 15 hours was normal (he designed that assessment).” The Tribunal notes that the COMP1100 course outline was released on 16 July 2017. The applicant had time to consider the course outline and raise any perceived deficits in the outline with the course convenor or with A&I. There was no evidence that he had done so.
93. The applicant also refers in Complaint 3 to a COMP1100 (CECS) assessment which he alleges was announced and delivered in an ad hoc fashion and to another assignment which had a restriction to the framework less than four days from the due date. He further alleges “Significant parts of the course were designed on the fly by someone underequipped to do so … and one of the labs even claimed that it was designed to consume as much time as possible, practically an unlimited amount of time …”
94. He asserts, without more, that the alleged unlawful acts in the preceding two paragraphs “disadvantaged me over the general student population because of my …disability and unanticipated overbearing/excessive workload during my need to be present for my family obligations/family disability.”
95. The respondent denies these allegations.
96. The applicant’s perceptions in [91], [92] and [93] above are clearly subjective. Having regard to all of the relevant facts and circumstances, the Tribunal cannot be satisfied that the respondent treated the applicant unfavourably because of his protected attribute or imposed a condition or requirement on him that had, or was likely to have, the effect of disadvantaging him because of a protected attribute. The Tribunal is not satisfied that the respondent engaged in an unlawful act or acts for the purposes of the Discrimination Act in relation to this allegation or these allegations. These allegations are without substance.
97. In relation to the alleged unlawful act or acts in [78(d)(iii)] above and Complaint 4, the Tribunal notes that the applicant’s allegation is that Mr Steven Han unlawfully discriminated against him when he stopped providing feedback on assignments in retaliation to feedback the applicant provided the tutor about the course and the complainant’s own experience in the course.
98. Other than the applicant’s assertion, there was no other evidence which supported this allegation. The respondent denies this allegation. The Tribunal cannot be satisfied that, in relation to this allegation, the respondent treated the applicant unfavourably because of a protected attribute or imposed a condition or requirement on him that had, or was likely to have, the effect of disadvantaging him because of a protected attribute. The Tribunal finds that this allegation in [78(d)(iii)] and Complaint 4 is without substance.
99. In relation to Complaint 5 to the HRC, the applicant has alleged that the respondent unlawfully discriminated against him on four grounds, namely that:
a.(a) he was gaslighted by Dr Uwe Zimmer, apparently in an email exchange, around 12 October 2017;
b.(b) he was singled out and the merits of his comments on an online forum (Piazza) discounted due to his disability and family responsibilities;
c.(c) he was removed from the role of Course Representative; and
d.(d) he was yelled at by Mr Han.

100. The respondent denies these allegations.
101. The Tribunal has carefully considered the complaint as well as the relevant emails provided by the HRC. The Tribunal is not satisfied that there is any evidence to support the complaint that he was gaslighted. Dr Zimmer’s emails (see [36] and [37] above) in that thread paint a very different picture of the situation concerning the applicant and Mr Han. Dr Zimmer states that the applicant’s email contained:
…an accusation of an obvious falsehood. Sorry to be so blunt, but you really need to be sticking to facts which actual (sic) hold up to scrutiny.
Your tone is extremely hostile towards me personally and I can only take note of this fact. I’m disappointed that you currently do not appear to be able to communicate facts in a (sic) open and non-judgemental way. …
102. Having considered the material in relation to Complaint 5 ([9(b),(c),(d)] above) the Tribunal is satisfied that there was no documentation corroborating the applicant’s claims. The documentation from Dr Zimmer directly refutes the applicant’s claims. The applicant’s own account of the relevant exchange on Piazza, does not support his allegation that he was treated unfavourably due to any protected attribute. The respondent refers to an email from the Deputy Manager at the CECS Office, dated 22 September 2017, which set out why he was removed from the role of Course Representative. The reasons were not related to the applicant having a protected attribute. The applicant’s version of his being yelled at by Mr Han does not enable the Tribunal to be satisfied that he was yelled at because he had a protected attribute. The Tribunal finds that the allegations in Complaint 5 are without substance.
103. In relation to Complaint 6 to the HRC the applicant states that he:
received statutorily authoritative approval from ANU, EGAP [Examinations, Graduations and Prizes Office] for deferred Mid-semester Examinations for all of my ANU courses semester 2 2017. DE [Course Convenor Damian Eldridge] and CBE [College of Business and Economics] repeatedly obstructed the ANU EGAP decision.
He added:
I believe ANU CBE and DE directly discriminated on my learning disability by refusing a protected and authoritative support for my disability, directly/indirectly discriminated on my need to be available from time to time to provide medical, familial and disability support to (two) family members. This escalation consumed hundreds of hours of focus, associated with my disability, when I could not understand the conflicts arising between ANU departments and the coalition tactics being applied ultra vires at CBE…
104. The applicant’s complaint is based solely on his subjective perception. He has not provided any evidence that supports or corroborates this claim that the appeal process was obstructed. The respondent refutes the applicant’s claim. The Tribunal notes that the EMET1001 course convenor, Mr Eldridge, clearly advised the applicant in an email dated 6 September 2017 of the reason why his request for a deferred mid-semester exam in EMET1001 was not approved. This was because the mid-semester exam was both optional and redemptive and the assessment weight of that exam would be shifted to the final exam. Further, the Associate Dean’s decision in resolving the applicant’s complaint was to uphold this decision. There was simply no evidence that enabled the Tribunal to be satisfied that these allegations had merit. The Tribunal finds that the allegations in Complaint 6 are without substance.
105. The applicant alleges in Complaint 7 that the respondent unlawfully discriminated against him because Mr Steven Han harassed him by continuing to attend his tutorials after Mr Han was replaced by another tutor. He also alleges that this harassment related to the applicant’s disability.
106. The respondent denies this complaint and contends that, even if the complaint was true (which it denies), that it does not constitute an unlawful act under the Discrimination Act. There was no evidence which corroborated the applicant’s belief that he was harassed because of his having a protected attribute.
107. The applicant also alleges in this complaint that Dr Uwe Zimmer did not appropriately deal with his complaint against Mr Han in relation to the yelling incident and Dr Zimmer’s behaviour was harassment due to the applicant’s disability. This complaint appears to refer to the email correspondence in Complaint 5 above. The respondent denies the applicant’s allegations.
108. The Tribunal refers to [101] and [102] above. The Tribunal has carefully considered the complaint and the emails. The Tribunal has referred, above, to Dr Zimmer’s response to the applicant’s emails. This complaint is based solely on the applicant’s subjective perceptions. It is credibly challenged by Dr Zimmer. The applicant’s allegations are unsubstantiated. The Tribunal is not satisfied that Dr Zimmer acted unlawfully or inappropriately. There is no credible evidence that either Mr Han’s conduct or Dr Zimmer’s conduct was due to the applicant having a Protected Attribute. The Tribunal finds that the allegations are also without substance.
109. In Complaint 8, the applicant alleges he was unlawfully discriminated against/victimised by the respondent because CECS complained to the Registrar about the applicant’s conduct. At this time the applicant said that his matters with CBE and Mr Eldridge had reached the ANU Registrar and the CECS reports complaining about his conduct blindsided him. He stated:
I believe I have been victimised for my disability and for stating my intention to perform protected acts related to my disability and my course of study at ANU CECS. … I responded to the ANU Registrar that I felt unsafe at the University given the circumstances and that I would prefer to defer further discussion or meetings until I received appropriate professional advice and representation. …
110. The respondent contends, in relation to this incident, that it did not treat the applicant unfavourably because of a protected attribute.
111. As previously stated above, in relation to the earlier complaints, the applicant’s allegations are based solely on the applicant’s subjective perceptions and are unsubstantiated. The Tribunal is not satisfied that the applicant was subjected to unfavourable treatment because of a protected attribute. The Tribunal finds that these allegations of unlawful discrimination are without substance.
112. For these reasons the Tribunal finds that, based on the above complaints, the respondent has not engaged in an unlawful act or acts as required by section 53E(1)(b) of the HRC Act.
113. Based on these findings the Tribunal is satisfied that Proposed Orders 3 to 8 are not in relation to unlawful acts; they lack substance and are foredoomed to fail.
114. If the Tribunal has erred in these findings, then the Tribunal is satisfied, insofar as the allegations refer to conduct of an employee of the respondent, that the respondent took reasonable steps to prevent it and its representatives from engaging in unlawful acts pursuant to section 121A(4) of the Discrimination Act. These included the preparation of EAPs which recommend adjustments specific to a student’s individual circumstances; the allocation of an officer to assist the applicant in relation to the development and implementation of his EAPs; having in place and giving effect to policies and procedures regarding the treatment and provision of assistance to students with disabilities and the provision of course outlines which are accurate and made available to students (where possible) two weeks before the beginning of each semester and the deferment of and other adjustments to examinations/assessments and complaint processes including in relation to perceived discrimination, communications with staff and recording of lectures and appeal processes for university decisions affecting a student’s studies.
115. The respondent also had a policy in respect of recording lectures, where practical, the provision of equipment in lecture rooms and theatres to record lectures and the practice of making recorded lectures available to students. The respondent’s policies including providing the ability for students to access lecture material online, including in advance of the lectures and structuring of examinations/assessments in a manner that allowed them to be ‘optional and redeemable’ is to provide students with flexibility in relation to the assessment of their academic performance.
116.       As a result of the Tribunal’s finding in [113] it is not necessary for the Tribunal to consider the remaining issues relating to orders 3 to 8; however, for completeness, the Tribunal has also considered these issues below.
Issue 1 (ii): Whether the orders sought are not orders within the scope of section 53E of the HRC Act because:
1.    1. the orders are based on hypothetical circumstances; and
2.    2. the orders do not provide redress.
Issue 2: Whether orders 3, 4 and 6 of the applicant’s orders should be dismissed on grounds that they are uncertain and unreasonable
117. Section 53E(2) of the HRC Act specifically provides that the Tribunal is only permitted to make one or more of the three orders found in paragraphs (a), (b) and (c) of subsection 53E(2). The three orders provide that the person complained about:
…not repeat or continue the unlawful act;
… perform a stated reasonable act to redress any loss or damage suffered by the person because of the unlawful act;
… pay to the person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.
The HRC Act does not permit the Tribunal to make any other orders with respect to the complaint before it.
118. The respondent contends that an order under subsection 53E(2)(b) of the HRC Act requiring the person complained about perform ‘a stated reasonable act’ is to redress any loss or damage suffered by a person because of an unlawful act. The loss or damage must be the result of the unlawful act and for a stated reasonable act to ‘redress’ the loss or damage it must “set right; remedy or repair (wrongs, injuries); correct or reform (abuses, evils, remedy or relieve suffering or want) and adjust evenly again, as a balance.”
119. For the orders to come into effect, both parties would have to undertake separate future actions. The respondent contends that an order under subsection 53E(2)(b) of the HRC cannot, therefore, be in the nature of setting right, remedying or relieving past unlawful acts (emphasis added).
120. The respondent contends that orders 3, 4 and 6 are premised on the applicant attending ANU and engaging in courses whereas the applicant is not currently enrolled in any courses or units at ANU or actively within the university. While he is enrolled in a degree program, he withdrew from all units in semester 2 2017. Therefore, the respondent contends paragraphs 53E(2)(a) and (b) of the HRC Act cannot form the basis of any of orders 3 to 7.
121. The respondent, additionally, contends that orders 3, 4 and 6 cannot be supported by subsection 53E(2) of the HRC Act because they are too broad to be directed towards preventing repetition or continuation of unlawful acts, and do not represent reasonable acts in paragraph 53E(2)(b) of the HRC Act.
122. The respondent also contends, in relation to paragraph 54E(2)(b) of the HRC Act that the Tribunal cannot make an order for redress as the applicant has failed to identify what, if any loss or damage he has suffered as a result of the alleged unlawful act/discrimination.
123. The applicant denies that orders 3 to 7 are based on hypothetical circumstances and, further, submits that it is not relevant whether these orders are based on hypothetical circumstances.
124. The applicant contends that subsection 53E(2)(b) of the HRC Act is remedial in nature and ought to be construed broadly which is consistent with section 4AA of the Discrimination Act which provides for beneficial interpretation to people with protected attributes. Section 4AA states:
This Act must be interpreted in a way that is beneficial to a person who has a protected attribute, to the extent it is possible to do so consistently with—
a. (a) the objects of this Act; and
b. (b) human rights under the Human Rights Act 2004

c.125. In this regard, the applicant referred the Tribunal to the recent observations of the tribunal in Complainant 201823 v Insurance Australia Group Ltd trading as NRMA at [23], namely:
a. 23. The Discrimination Act is to be interpreted in a beneficial and not in a narrow way. Section 4AA of the Act provides that the Act must be interpreted in a way that is beneficial to a person who has a protected attribute. In introducing this provision as an amendment to the Discrimination Act in 2016, the Attorney-General stated:
The bill includes a new explicit requirement that the act be interpreted in a way that is beneficial to people who have protected attributes to the degree that the interpretation is consistent with the objects of the act, the Human Rights Act and other rules of legislative interpretation.
This provision will encourage people applying the act, including the ACT Civil and Administrative Tribunal, to do so in keeping with its spirit—that is, to support vulnerable or marginalised members of society to enforce their rights not to be arbitrarily excluded from society because of discrimination. The act should not be interpreted narrowly or in a way that restricts the exercise of the rights in it.
The bill contains several amendments to recognise that discrimination is often complex and multifaceted in that it can occur on more than one ground, or over a series of acts, which may be impossible to isolate, or to clearly distinguish as either direct or indirect discrimination.

a.126. The difficulty for the applicant in this matter is that the Tribunal has found that the respondent had not engaged in an unlawful act or acts which discriminated against the applicant because of a protected attribute. The Tribunal has not found any evidence to support a finding that because of the applicant’s protected attributes, the respondent treated him unfavourably. The Tribunal has found that the applicant’s claims of the respondent engaging in unlawful acts lack substance. In making these findings the Tribunal has not interpreted the legislation narrowly or in a way that restricts the rights in the Discrimination Act.

b.127. The Tribunal agrees with the respondent that the orders sought by the applicant are not orders within the scope of subsection 53E(2) of the HRC Act. They go beyond what is reasonable for the Tribunal to order the respondent to do. They are based on hypothetical circumstances and are premised on certain events occurring before any order of the Tribunal can come into effect. The Proposed Orders are not concerned with preventing the repetition or continuation of unlawful acts that the Tribunal might find the respondent has engaged in. They appear to relate to how the applicant would like to be treated in the future.
c.128. The Tribunal finds that Proposed Orders 3, 4, 5, 6 and 7 sought by the applicant should be dismissed. There is no ambiguity in section 53E(2)(b) of the HRC Act. It specifically requires the Tribunal to make orders requiring a person to perform a reasonable act to ‘redress’ any loss or damages suffered as a result of unlawful acts. The orders sought are not directed at redressing any past loss or damage suffered by the applicant. The Tribunal cannot make orders to redress potential future unlawful acts. Order 5 is speculative and unreasonable. Order 7 requires the respondent to provide anti-discrimination training to staff. This is clearly not directed at redressing past loss or damage allegedly suffered by the applicant. The orders are unreasonable and uncertain.
Issue 4: Whether Order 8 of the applicant’s Proposed Orders should be dismissed on grounds that the applicant has not identified any loss or damage to support Order 8
a.129.       The applicant claimed that “he had not been diagnosed with the [disability] before he was unfavourably treated by the respondent and claims that the onset of the condition was a consequence of the unlawful acts of the respondent.” However, the medical report from a specialist dated 18 October 2017 contradicts this. It states: “[TGD] was diagnosed with [disability] - confirming and re-establishing a diagnosis made when [he was] a child in the USA. …”
b.130.       Apart from the applicant providing categories of his loss or damage he has not provided any particulars of the amount of compensation sought. Order 8 is lacking in substance. It is not supported by evidence (see Puri v Iconic Markets and Events Pty Ltd ACN 610 470 114).
Issue 5: Whether the substantive application should be dismissed for lacking substance on grounds that
i. (i) the applicant’s orders are not empowered by subsection 53E(2) of the HRC Act and are misconceived; and
ii.    (ii)       with respect to the orders sought, the application lacks substance, is foredoomed to fail, and lacks any reasonable prospects of success.

131. The Tribunal has found, above, that the application should be dismissed because the complaints lacked substance. The Tribunal was not satisfied that the applicant had established, on the balance of probabilities, that the respondent had engaged in the unlawful acts of which he had complained. The Tribunal was satisfied that the respondent had not discriminated against the applicant because of a particular attribute.
132. The Tribunal has also found that the orders sought by the applicant are not empowered by section 53E(2) of the HRC Act. They are misconceived.

Victimisation

133. For the applicant to succeed in his claims of victimisation he has to establish both of the following elements:
a.(a) He was subject to or threatened to be subject to some form of detriment;
b.(b) Because he has taken or proposes to take discrimination action.

a.134.       The applicant ticked the box on the complaint form he lodged with the Commission indicating that his complaint also related to victimisation “because I made or supported a discrimination complaint”. He amended this complaint in his letter to the Commission dated 11 July 2018. The amended complaints are set out in [41] above. The respondent denied the victimisation allegations.
b.135.       The applicant has not identified or particularised the ‘administrative matters’ in the complaint that he was victimised “by [the respondent] conspicuously delaying or obstructing numerous administrative matters.” Nor has the applicant particularised the relevant punitive actions in his complaint that the respondent victimised him “by attempting to invoke unwarranted punitive actions rather than commencing formal complaint procedures as repeatedly requested by ANU CECS and ANU HR”. The Tribunal finds that both of these complaints are, therefore, without substance. The applicant has not met each of the elements in [131] above.
c.136.       In the applicant’s third victimisation complaint he alleges he was victimised by the respondent:
rejecting my application for a degree program transfer for which I exceed all requirements as well as reneging a binding approval notice already received for said transfer application.

The respondent contends that, as it understands this complaint, it relates to the applicant’s transfer to a double degree in a Bachelor of Laws/Bachelor of Science which was approved. Therefore, this complaint is also without substance.

Conclusion

a.137. For the reasons set out above, the Tribunal is satisfied and finds that the respondent has discharged the onus of proof. The applicant’s case is not sustainable in fact or law. The respondent has established that the applicant has no arguable case. His application has no reasonable prospects of success and is foredoomed to fail. The Tribunal will order that it be dismissed pursuant to section 32 of the ACAT Act.
………………………………..
Presidential Member E Symons

HEARING DETAILS

FILE NUMBER:	DT 1/2019
PARTIES, APPLICANT:	TGD
PARTIES, RESPONDENT:	The Australian National University
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	Mills Oakley
SOLICITORS FOR RESPONDENT	Minter Ellison
TRIBUNAL MEMBERS:	Presidential Member E. Symons
DATES OF HEARING:	On the papers