Yu v University of Newcastle (EOD)

[2012] NSWADTAP 54

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Yu v University of Newcastle (EOD) [2012] NSWADTAP 54

Hearing dates:

13 December 2012

Decision date:

21 December 2012

Jurisdiction:

Appeal Panel - Internal

Before:

Magistrate N Hennessy, Deputy President
R Wright SC, Judicial Member
Dr J Schneeweiss, Non-Judicial Member

Decision:

1. The appeal on a question of law is dismissed.

2. Leave is refused for the appeal to extend to the merits of the Tribunal's decision.

3. The decision of the Tribunal is affirmed.

Catchwords:

APPEAL - disagreement with factual findings - contradictory evidence - no question of law identified - insufficient basis to extend appeal to merits

Legislation Cited:

Anti-Discrimination Act 1977

Category:

Principal judgment

Parties:

Dr Fu Yu (Appellant)
University of Newcastle (Respondent)

Representation:

Counsel
R Warren (Respondent)
Dr Yu (Appellant in person)
Hicksons Lawyers (Respondent)

File Number(s):

129036

 Decision under appeal 

Citation:

[2012] NSWADT 201

Before:

Equal Opportunity Division

File Number(s):

111017

REASON FOR DECISION

Introduction

1. Dr Yu complained that, while he was a masters student at the University of Newcastle, Professor Rasiah (an employee of the University) discriminated against him in breach of the Anti-Discrimination Act 1977 on the ground that he is Chinese. The Tribunal dismissed the complaint and Dr Yu has appealed.

1. Dr Yu feels seriously aggrieved by Professor Rasiah's conduct and disagrees with the Tribunal's decision. The Appeal Panel accepts and endorses the Tribunal's conclusion that Professor Rasiah's delay of 7 months in providing to Dr Yu the results of his supplementary examinations taken in June 2008 was unacceptable. The Panel also accepts that Dr Yu found it very offensive when Professor Rasiah told him to "speak English" during an interview concerning other examination results, when Dr Yu was speaking English. Such a reaction was in the Panel's view entirely understandable. While Dr Yu feels legitimately aggrieved, it does not follow, however, that the conduct amounted to unlawful discrimination under the Anti-Discrimination Act.

1. Dr Yu has been unable to identify any error on a question of law by the Tribunal or to give any sufficient reason for the Appeal Panel to grant permission for his appeal to extend to the merits of the Tribunal's decision. His appeal is dismissed.

Grounds of appeal on a question of law

1. Although Dr Yu has a right to appeal on a question of law, he did not express his grounds of appeal in a way which identified a question of law.

1. Dr Yu's grounds of appeal were as follows:

(1)   Professor Rasiah supplied conflicting and inconsistent evidence at the hearing and in the affidavits, and it is my submission that the NSW Administrative Decisions Tribunal (ADT) was not on good ground to have been satisfied concerning his evidence because of these contradictions.

(2)   The delay of some seven months in furnishing my results - to which the ADT draws attention but it is not within their jurisdiction to directly address - should be examined as to whether this occurred to other students or only in my case. I submit this was in my case only.

(3)   The applicant, myself, was disadvantaged at the hearing because I had no legal representative to help highlight these contradictions in his evidence, and pursue the matter of whether the 'administrative irregularity' applied to others or only myself.

(4)   Professor Rasiah used misleading statements to verbally abuse me and bully myself and a witness of mine.

1. In oral submissions, he said that the Tribunal applied the wrong statutory provision and made findings with no evidence. When pressed, however, he did not point to any relevant statutory provision which had been wrongly applied. Nor did he identify any particular finding that the Tribunal had made without evidence.

1. In oral submissions, Dr Yu made two main points. The first was that Professor Rasiah had given contradictory evidence concerning when the supplementary examinations had been marked and entered into the University's computer system. As a consequence, it was argued none of the Professor's evidence should have been accepted. The second point was that Professor Rasiah's saying "speak English" to Dr Yu during the interview in September 2009 indicated that the Professor's conduct towards Dr Yu, both before and after that comment was made, was racially motivated. In addition, Dr Yu challenged certain findings of the Tribunal concerning an additional four marks being awarded to Dr Yu for the examinations marked in about August 2009. Dr Yu made a number of other criticisms of the Tribunal's findings of fact.

1. In our view, while there were difficulties with Professor Rasiah's evidence, there was sufficient material before the Tribunal to support all of the relevant findings made. The Tribunal did not make an error of law.

1. Further, the Appeal Panel has not been able to identify any other question of law raised by Dr Yu in the stated grounds of appeal or in his oral or written submissions. Nor has any error of law been identified. Accordingly, the appeal on a question of law is dismissed.

Leave to extend to the merits

1. Dr Yu also sought leave for the appeal to extend to the merits of the Tribunal's decision. It is not necessary to identify an error of law before granting leave. But Dr Yu has the onus of persuading the Appeal Panel to exercise its discretion to grant leave. Circumstances which may justify leave being granted include that the Tribunal has gone about its fact finding process in such an unfair or unorthodox manner that it is likely to produce an unfair result.

1. Once again, Dr Yu's main point was that Professor Rasiah had been inconsistent when responding to questions about the reason for the 7 month delay in giving him the result of two supplementary examination papers. He accepted that his submission was in essence that the Tribunal had erred by failing to draw an inference of race discrimination. He says that such an inference should have been drawn because of the contradictory evidence given by Professor Rasiah about the reasons for the delay and other matters. He also says that the Tribunal should have drawn an inference of race discrimination on the basis of a direction by Professor Rasiah to "speak English".

1. The Tribunal acknowledged that the delay in providing the marks for the supplementary examinations was unacceptable, but was not satisfied that it was based on Dr Yu's race. Similarly, the Tribunal held that the comment, "speak English" was made because Professor Rasiah was frustrated, not because of Dr Yu's race. In addition, the Tribunal found either that Dr Yu had not suffered any detriment as a result of the conduct or, even if he had, there were more innocent and plausible explanations for the conduct than Dr Yu's race.

1. Dr Yu vehemently disagrees with these findings but has not been able to satisfy us that they were not open on the evidence or that they were attended by sufficient doubt to justify extending the appeal to the merits. The Tribunal carefully recited and weighed the evidence highlighting inconsistencies and giving cogent reasons for its findings. It certainly did not go about its fact finding process in such an unfair or unorthodox manner that it was likely to produce an unfair result. Neither has Dr Yu satisfied us that leave should be granted to extend the appeal to the merits on any other basis.

Order

1. The appeal on a question of law is dismissed.

2. Leave is refused for the appeal to extend to the merits of the Tribunal's decision.

3. The decision of the Tribunal is affirmed.

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Decision last updated: 21 December 2012