FEDERAL COURT OF AUSTRALIA

Zhang v University of Tasmania [2008] FCA 516

DISCRIMINATION – applicant PhD student at university – whether actions by university staff constituted unlawful discrimination on disability, race and sex grounds

Disability Discrimination Act 1992 (Cth) s 22

Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PO

Racial Discrimination Act 1975 (Cth) s 15(1)

Sex Discrimination Act 1984 (Cth) s 14(2)

(JANE) YUEHUA ZHANG v UNIVERSITY OF TASMANIA, DALLAS HANSON, JIM GARNHAM, PHILLIPA ORMANDY, CAREY DENHOLM, JULIAN YAXLEY and KYLIE SHANAHAN

TAD 5 of 2007

HEEREY J

24 APRIL 2008

HOBART

THE COURT ORDERS THAT:

1.                  The application is dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant Ms (Jane) Yuehua Zhang was a PhD candidate at the University of Tasmania (UTAS) between September 1998 and October 1999.  She applies under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) for compensation for alleged unlawful discrimination under the Disability Discrimination Act 1992 (Cth) s 22, the Racial Discrimination Act 1975 (Cth) s 15(1) and the Sex Discrimination Act 1984 (Cth) s 14(2).  She is of Chinese origin.  She claims that she was discriminated against by UTAS and certain of its staff members because of an (imputed) disability and her race and sex. 

2                     Her Form 167 filed under O 81 r 5 of the Federal Court Rules particularises the discrimination she complains of in the following terms:

1.         Failing to provide me with the Overseas Postgraduate Research Scholarship (“OPRS Scholarship”) that I had won in 1998.

2.         Paying me only $67.39 for the first hour and $44.93 for repeated hours of tutorial work whilst the School of Management of UTAS paid about $90 per hour to the other tutors.  My supervisor, Dr Dallas Hanson, told me that “if you argue about payment you cannot be anybody’s PhD candidate.  I had a Chinese PhD candidate in the past, who argued about payment.  Then he/she left”.

3.         Falsely suspecting that I was in financial problem or had no money because of my Chinese origin.

4.         Treating me less favourably by:

·        not conducting annual review for my academic progress;

·        not submitting my paper to the 1999 ANZAM Conference hosted by the UTAS;

·        advising me that the Faculty of Commerce & Law had “no scholarship” even though the information indicated that the scholarship was available at the time;

·        breaching my confidential information by obtaining a letter from UTAS counselling services without my permission.

5.         Imputing that I had potentially suffered “serious psychological problem”, then referring me to UTAS Counseling [sic] Service and treating me as if I had such a disability.

6.         Terminating my PhD candidature in Oct. 1999.

3                     It will be apparent that on their face complaints 1, 4 and 6 do not seem to raise any allegation of discrimination on the grounds of disability, race or sex.  But in any event, having heard evidence from Ms Zhang and various members of UTAS staff, I am not satisfied that there is any factual basis for these or her other complaints.  Before turning to the particular complaints, a brief chronology of her attendance at UTAS can be given. 

4                     In 1996 Ms Zhang applied for an Overseas Postgraduate Research Scholarship (OPRS) for study at UTAS in the following year but was unsuccessful.  She made a similar application again in 1997, again without success.  In 1998 she enrolled in UTAS as a fee paying PhD candidate and paid the required tuition fees.

5                     She attended UTAS as a PhD candidate in the School of Management from late September 1998 and during 1999.

6                     While at UTAS she claimed she was entitled to an OPRS.  This issue was investigated both by the office of the Pro Vice-Chancellor (Research) and the Tasmanian University Postgraduate Association (the student union for postgraduate students).  Both investigations concluded that she had not been awarded an OPRS. 

7                     On 7 October 1999 the Acting Head of the School of Management recommended to the Dean of Graduate Studies by Research, Professor Carey Denholm, that Ms Zhang’s candidature be terminated.  The recommendation stated that her supervisor had indicated he was unable to continue in that capacity and the School did not have the required skills and capacity to provide alternative supervision.  The recommendation also stated:

The level of disputation that has occurred both within the School and the University in relation to the question of a scholarship and sessional teaching have raised serious concerns and support the recommended action.

8                     On 14 October 1999 Professor Denholm met with Ms Zhang in the presence of Mrs Margaret Beasley, Head of Student Counselling.  Following that meeting Professor Denholm wrote to Ms Zhang outlining his investigations and discussions.  After noting the support she had received, including office facilities, support to attend an OECD Conference in Sydney and other tuition, Professor Denholm stated:

I have also reviewed documents clearly indicating a history of significant disputation involving issues arising with the International office, Tasmanian University Post Graduate Association, Office of the Pro Vice-Chancellor (Research) and the School of Management.

I have also read your memos to your Supervisor, some of which make me very concerned.  For example, on 25.9.99 you wrote “One of the advisors in the Asian Institute of Technology has even mentioned that I am too good to be in this world.  I admit this now, but I don’t think the world can change me nor I can change the world”.  This degree of unhappiness with your current situation is also contained in other correspondence provided to me by your supervisor.  I note that your supervisor advised you of the free student counselling service available on campus.  I note also that following our meeting on 14.10.99 that you arranged a time to meet with the Head of the Counselling Service external to this process. 

I would note to you that every University individual with whom I spoke expressed genuine concern about your welfare and a desire to have a positive resolution.

            In summary, my investigation has determined the following;

·        While it is regrettable that you have suffered disappointment in failing to receive an OPRS, there is evidence that you were aware of this prior to leaving your country to study in Tasmania.

·        From documents provided it is evident that you have failed to accept decisions of university officers in relation to the matter of the OPRS.

·        There are numerous examples of on-going and unnecessary disputation between you and various officers within this University regarding the OPRS and other matters.

·        Your behaviour has impacted adversely on the working lives of members of academic staff within the School of Management.

As the Head of School has indicated that the School can no longer offer supervision under the same conditions as before; and under clause 7.1, and 7.2 of Rule 70, candidature must be conducted under a supervisor, I outline two options below for your to consider if you wish to continue your studies.

            1.         Continue your studies within the School of Management, under a set of strict conditions; (attached A) which given the extent of the relationship breakdown between you and the School, may not be feasible.

            2.         Transfer your candidature to another Australian University capable of offering supervision in your field.  NB: (Should you decide to transfer your candidature, the University of Tasmania would refund the fees you have paid to date).  Please see suggestions under B.

I am required to inform you that under clause 13.3.(Rule 70) you have 14 days after receiving this notification to provide written comments to me about this recommendation.

cc. Dr. Jim Garnham, Acting Head of the School of Management

9                     The conditions attached were as follows:

A.  Conditions

1.         Refrain from any further correspondence or discussion regarding the matter of your unsuccessful OPRS with University staff members.

2.         Abide by all University and school regulations relating to procedures for higher degree candidature and use of university facilities (in particular with reference to copyright laws).

3.         Provide any draft research writing (including thesis work) in a clear, proof read form.

4.         Limit contact and meetings with your supervisor to one half hour session a week (Thursdays 3.30-4.00 or some other mutually convenient time).

5.         Refrain from dealing directly with School staff on matters concerning tutorial employment, dealing only with the Head of School.

B.        Australian Universities with capacity and expertise in your area

1.         Wollongong

2.         Deakin

10                  On 13 December 1999 Ms Zhang replied advising that she wished to transfer to another university.  In the following year she enrolled at the University of Wollongong where she completed her PhD studies.  She currently teaches at a university in New Zealand.

Ground 1         Overseas Postgraduate Research Scholarship

11                  In the course of her application to UTAS for admission in 1998-99 Ms Zhang sent an email to Ms Judith Sandeman, International Admissions Officer, on 5 February 1998 which included the following:

Please be informed that I also submitted my application for OPRS (scholarship) in my application sent in Sept. 1997.  In fact I am expecting 2 pieces of information which are equally important to me: the approval for both Ph.D. enrolment and scholarship.

Would be greatly appreciated if you could help me to check the result of my application for OPRS.

12                  Ms Sandeman replied on the same day stating:

Re OPRS scholarship – Unforntately [sic] you were not successful in your application for an OPRS scholarship.  As you can imagine we had many applications and the competition was intense.  So I’m sorry but we cannot help there. 

Re PhD – as stated in the offer of enrolment, you have been granted approval for entry into a PhD program.

I hope you are able to secure the necessary funds to undertake your PhD in Tasmania.  Good luck!

13                  Ms Zhang’s reply on 23 February 1998 included the following:

Please be informed that I have made up my mind to accept the Offer of Enrolment you sent to me, and will start my Ph.D. research in the second semester of 1998.  Please allow me to consult you the following:

1.         Since I will start the program in Sept. 1998, should I submit my first semester fee by Feb. 28, 1998?

2.         Can I skip the 6-week Introductory Academic Program?

14                  On 31 August 1998 Ms Sandeman sent Ms Zhang a UTAS form headed “Confirmation of enrolment for the purpose of granting a student visa”.  The form contained various course details including a start date of 1 September 1998.  Alongside the word “Scholarship” appeared the words: “OPRS – Overseas Postgraduate Research Scholarship”. 

15                  Shortly prior to 20 September 1998 Ms Sandeman emailed Ms Zhang asking whether her visa had been approved yet and requesting flight details.  Ms Zhang replied advising she had received her visa and giving flight details.  She said she would “start to check in” on 25 September.  The email also stated:

By the way, Confirmation of Enrolment indicates that I have been granted with [sic] OPRS – Overseas Postgraduate Research Scholarship.  It is true? 

16                  Ms Sandeman replied confirming flight details and stating:

My apologies about the OPRS – no, you have not been granted a scholarship.  This should not have been on the CEOS form.  It was a record that you had applied for the OPRS scholarship in the past.

17                  Thus it was very clear both in February 1998 and in September of that year, before Ms Zhang arrived in Tasmania, that she had not received an OPRS and that the statement on the form was an error.  That Ms Zhang was aware of this is shown by an email she sent to Ms Sandeman on 1 June 1998.  In this email Ms Zhang said that she had applied for a “Non-independent Immigration visa” [sic] in 1996 assuming that in case she could get “the permission” she may pay less fees for the PhD.  She realised later that the assumption was not true and withdrew her application.  However, she was “last weekend” told by friends that those who withdrew an application for a non-independent immigration visa would not be granted a student visa “within few years in most cases”.  She continued: 

This made me so upset.  While trying to find the way out, I am thinking it might be helpful if I can get your assistance. 

May it be possible for you to send me a letter from University of Tasmania indicating that “University of Tasmania has decided to award me a scholarship for my Ph.D. research”, which is not true of course, but will help me to get the student visa?  I promise I will use it for the purpose of applying the student visa only.  To prove what I claim is reliable, I will send you the fees for the first semester, AUD6,524, with another USD10,000 to save in University of Tasmania for my further tuition fees only as soon as I am confirmed that you or University of Tasmania can help me.  Other expenses will be brought with me while I am leaving Bangkok for Tasmania in Sept. 1998.

18                  Ms Sandeman replied stating politely:

Unfortunately I regret that the University of Tasmania is unable to issue you a letter saying that you have a scholarship when you do not have one.  It is against the policy of the University. 

19                  After further emails, which discussed amongst other things possible assistance from the United Nations Industrial Development Organisation, Ms Zhang on 26 August 1998 emailed saying:

Please be informed that I have made up my mind:  I will start my Ph.D. program starting September 1998 because I am not sure whether UNIDO will provide me with financial assistance or not even if I wait for another period of time…

My fee for the first term will be sent to you tomorrow.  Dear Judy, please confirm whether it is still US$4188.

20                  Two things emerge from this evidence.  First, it is clear beyond argument that before Ms Zhang arrived at UTAS she knew she did not have an OPRS.  Secondly, she is a person quite willing to lie, and implicate others, if it will be to her advantage.  She is not a person of credibility.  I do not accept her evidence where it is in conflict with others.

Ground 2         Tuition fees

21                  Dr Dallas Hanson was at the time a Senior Lecturer in the School of Management at UTAS.  He is currently Associate Dean of Research.  He has supervised three successful PhD students at UTAS.  Two of these are current staff members at UTAS and one is working at the University of Queensland.  One of the three was awarded a Dean’s commendation, one of only nine awarded out of more than 100 PhD graduates in UTAS for that year. 

22                  His involvement with Ms Zhang was as her supervisor.  Initially it was intended that Associate Professor Tony Hocking be the primary supervisor because he had experience in International Economics.  This was proposed in December 1997 in response to Ms Zhang’s initial application to be a candidate.  However she did not commence until 1998, by which time Associate Professor Hocking had decided to retire.

23                  Dr Hanson denies telling Ms Zhang that if she argued about payment she could not be anybody’s PhD candidate or that he had a Chinese PhD student in the past who had argued about payment then left.  Prior to supervising Ms Zhang he had never supervised a Chinese PhD student.  I accept Dr Hanson’s evidence.  Quite apart from her credibility problems, Ms Zhang’s allegation is inherently unlikely.  Dr Hanson points out that appointment of tutors was a matter for the Head of School and Ms Zhang was not taking tutorials in any subject he was involved in.  He had nothing to do with any tutorial work she did.  The rate was set by UTAS under the relevant Staff Agreement.  It was not possible to pay a tutor more or less than the going rate. 

24                  There was evidence from Mr John Horder, the Manager, HR Systems and Administration at UTAS.  Having searched UTAS records he found that the rates paid to Ms Zhang were in accordance with the Academic Staff Agreement 1997-1999.  There was no record of anyone having been paid for conducting a tutorial at or about the rate of $90.  There was only one staff member who was paid more than the rate of $67.39 per tutorial paid to Ms Zhang.  That person was paid the higher tutorial rate of $79.86 per tutorial which was the rate set out in the agreement for tutorials “where full subject co-ordination duties are included as part of normal duties or the employee holds a relevant doctoral qualification”.  All other tutors were paid the same rate as Ms Zhang.

Ground 3         False suspicion of financial problems because of Chinese origin

25                  Dr Hanson said that while Ms Zhang was prone to saying that she was short of money he never knew whether or not this was true as he did not have any specific knowledge of her financial situation.  He said he “certainly did not suspect that she had financial problems… because of her Chinese origin”.  He did not treat her any differently from any other student because of any suspicions about her financial situation.

26                  Dr John James (Jim) Garnham, a Senior Lecturer in the School of Management, also gave evidence that it was generally the case that postgraduate students have financial constraints to some extent.  Ms Zhang had the added burden of being a full fee paying student.  However he did not have any specific knowledge about her financial situation and certainly did not suspect that she had financial problems because of her Chinese origin.  He did not say anything to her to indicate knowledge about her financial situation.

27                  I am satisfied there is no substance in this allegation.

Ground 4(a)    Not conducting annual review of applicant’s academic progress

28                  On her own evidence Ms Zhang states that Professor Denholm told her he received the annual review report for her from the School.  Dr Hanson says, and I accept, that in a small School with very few postgraduate students, at least the initial part of the review process was relatively informal.  The supervisor and the candidate would meet and complete the review which would then be submitted to the Head of School.  Dr Hanson continues:

I struggle to remember what happened specifically but I am aware that there exists an annual review formed [sic] which appears to have been signed by both Ms Zhang and myself on 8 September 1999. 

Dr Hanson points out that in her affidavit Ms Zhang acknowledges that he went to her office with a review form and had a conversation with her about her progress before making an assessment and asking her to sign the form.

29                  In any event, if there was any failure in this regard, which I do not accept, there is no suggestion that such failure was a result of any statutorily prohibited discrimination.

Ground 4(b)    Not submitting paper to the 1999 ANZAM conference

30                  ANZAM is the Australia and New Zealand Academy of Management.  In 1999 its annual conference was held in Tasmania. 

31                  Ms Zhang alleges that Dr Hanson did not submit her paper to the conference “and/or” did not inform her of the decision of the conference about it.  She asked him about the paper a few times.  Once he said: “It may be accepted, may be refused”.  She emailed him asking about the result of the paper but “he never provided any feedback to it”.  She also alleges that Dr Garnham did not submit her paper to the conference “and/or” did not inform her of the conference’s decision.

32                  The conference was not a UTAS event although Dr Garnham was a convenor of the organising committee.  ANZAM issued a general invitation for the submission of papers to be considered for presentation at the conference.  Papers were to be sent to the organising committee direct and did not need to go through UTAS or the School of Management.  Each paper received by the organising committee was reviewed by two referees who did not know the identity of the author of the paper.  The referees made recommendations as to the paper’s suitability for, and appropriate manner of, presentation.

33                  It was not part of Dr Garnham’s duties as Acting Head of School to inform anybody who had submitted a paper for consideration of the decision of the organising committee about that paper.  The organising committee wrote directly to persons who had submitted papers advising of the committee’s decision and any feedback about the paper.  Ms Zhang was not treated any differently.

34                  Dr Hanson said that Ms Zhang gave him a paper she wanted to submit to ANZAM.  She asked him for some suggestions, which he gave to her.  He returned the paper to her with the suggestions and said something like: “Best of luck.  It is not really good but it might get up”.  Dr Garnham confirms it was the responsibility of ANZAM to assess any papers submitted to it for consideration and to communicate the results to those who had submitted papers. 

35                  This complaint is without substance factually and in any case discloses no unlawful discrimination.

Ground 4(c)    Advising that the Faculty had no scholarship even though scholarship was available

36                  Ms Zhang says that Dr Hanson told her there was no possibility for her to apply to the Faculty of Commerce and Law for a scholarship.  He allegedly told her on 22 December 1998: “The scholarships are for faculty members, you are not a faculty member”.  In March 1999, seeing that she did not want to change to be a part-time PhD student, he told her: “I don’t have a scholarship”.  At another occasion when she asked about the possibility of applying for a scholarship at the School he said “very limited”.

37                  Dr Hanson explained that faculty scholarships are offered occasionally when funds are available but are not a regular offering.  For example, there were none in 2007 when he swore his affidavit.  He could not recall if any faculty scholarships were offered for 1999.  If any were offered Ms Zhang would have been eligible to apply.  They are not for “faculty members” but for students.  He denies telling Ms Zhang they were only for faculty members and would not have discouraged her from applying for one.  She could have applied for any faculty scholarship and any such application would have been considered by the Dean of Faculty and the Head of School on academic merit alone. 

38                  Ms Zhang alleges that Dr Garnham advised her by email that the Faculty of Commerce and Law had “no scholarship” in March 1999 “even though the information indicated that the scholarship was available”.  He allegedly copied this email to her supervisor advising the supervisor should also tell her that there was no scholarship. 

39                  Dr Garnham has no copy of, or recollection of having sent, such an email.  Ms Zhang did not produce it.

40                  There was no motive for either Dr Hanson or Dr Garnham to give Ms Zhang false advice about the availability of scholarships.  I accept their evidence.  This complaint is not made out. 

Ground 4(d)    Obtaining a letter from UTAS counselling services without applicant’s permission

41                  Ms Zhang says that Ms Phillipa Ormandy, the Executive Officer in the office of the Pro-Vice Chancellor (Research), breached her confidential information by obtaining a letter from UTAS counselling services without her permission.

42                  Ms Ormandy denied obtaining any personal information about Ms Zhang from the counselling service or asking the counselling service for it.  Ms Ormandy did speak to Mrs Beasley, the Head of Student Counselling, prior to Ms Zhang’s appointment with Mrs Beasley.  Ms Zhang had complained about feeling unsafe when working at UTAS on her own late at night and Ms Ormandy was concerned for her safety and welfare.  She established that the person Ms Zhang thought might be a prowler was actually a UTAS Security Officer.  Ms Ormandy requested that Mrs Beasley let her know if she thought extra precautions were needed to protect Ms Zhang.  She emphasised to Mrs Beasley that she was not seeking any personal information about Ms Zhang.

43                  There was in evidence a letter dated 20 October 1999 (exhibit K), labelled “DRAFT Confidential Memorandum” from Mrs Beasley, who is a psychologist, to Ms Ormandy.  Ms Ormandy denied receiving it.  It was a draft sent to Ms Zhang for comment.  The probability is that she declined permission for it to be sent and therefore it was never sent to Ms Ormandy.  Ms Ormandy never “obtained” it.

Ground 5         Imputing “serious psychological problem”

44                  Ms Zhang alleged that Dr Hanson “imput(ed)” that she “had potentially suffered ‘serious psychological problem’” and suggested she was “suicidal” and referred her to UTAS counselling services and treated her as if she had such a disability.  She also alleged that Professor Denholm imputed that she had “potentially metal health problem” and treated her as if she had such a disability. 

45                  Dr Hanson denies that he “imputed” to her any serious psychological problem but did think it was possible she had problems with which a counsellor might help.  His observations were that she was “antagonising everyone she came into contact with at the University, not just University academic or administrative staff but student association people as well”.

46                  Dr Hanson therefore suggested that she contact a counsellor but left it up to her whether she did so.  He had no authority to “refer” someone to counselling. 

47                  Having seen Ms Zhang giving evidence, Dr Hanson’s assessment of her does not come as a surprise to me.  Ms Ormandy said that at a student function Ms Zhang was upset and distressed and threw a plate of food at her.

48                  Professor Denholm as Dean of Graduate Studies by Research had responsibility to ensure appropriate levels of pastoral care.  He did have concern about Ms Zhang, including concern for what might be the potential for suicidal behaviour.  In particular he expressed concern following an email she wrote on 25 September 1999 in which she agreed that she was “too good for this world”. 

49                  He discussed these concerns with Ms Zhang.  It was apparent to him that she was exhibiting signs of stress; she was upset and angry and in the course of that conversation he suggested to her the possibility of counselling.  Mrs Beasley was present to assist Ms Zhang to talk through some issues.  At the end of the meeting it was agreed that Ms Zhang could meet with Mrs Beasley independently for assistance as she was very upset.  Professor Denholm is a psychologist.  He said that as such

I thought it would be inappropriate not to suggest counselling in the circumstances and as Dean I considered I had a duty of care to do so.  In doing that I did not “impute” any mental problems to (Ms Zhang).  It was apparent that she was stressed and I treated her no differently from the way I would have treated any PhD candidate in the same circumstances.

50                  I accept Professor Denholm’s evidence that he dealt with Ms Zhang in a way consistent with his professional expertise and his duty to her and UTAS.  He was trying to help her, not discriminate against her. 

Ground 6         Terminating PhD candidature

51                  This has already been discussed.  There is no basis for a finding of discrimination on any of the statutory grounds.

Other matters

52                  There were other complaints such as alleged rudeness and mismanaging her field work.  These do not form part of the complaints properly before the Court under Order 81.  In any event, I am satisfied they are without substance and do not raise questions of unlawful discrimination.

Conclusion

53                  Ms Zhang’s complaints have not been made out.  The application will be dismissed with costs.

Associate:

Dated:         24 April 2008