JCN v James Cook University[2023] QCAT 538

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

Table of Contents

Introduction6

Jurisdiction and procedure6

The parties and their witnesses7

The Applicant and his witness7

The Respondents’ witnesses7

The burden of proof and evidential issues8

The relevant ADA provisions8

Consideration of Briginshaw v Briginshaw8

The claim of direct discrimination9

The threshold issue9

The relevant provisions of the ADA concerning direct discrimination10

Establishing direct discrimination11

Observations on the Applicant’s written submissions12

The relevant facts13

Events leading up to the Applicant’s suspension13

Events from the suspension to the signing of the Student Agreement42

Events subsequent to the signing of the Student Agreement58

Mr Malawaraarachchi’s statement79

The alleged treatment of the Applicant80

Dr Rasalam81

Dr Wohlfahrt81

Ms Ware82

Ms Midson82

The alleged ‘attributes’83

Presumed mental illness?83

Impairment83

The test for determining whether an attribute is ‘presumed’84

The findings in relation to presumed mental illness87

Professor Murray87

Professor Sen Gupta94

Professor McDermott96

Dr Harte100

Dr Hodge102

Dr O'Connor104

Characteristic?105

The Comparator106

Less favourable treatment of the Applicant than the Comparator in the same circumstances?108

Alleged failure to investigate109

Professor Murray110

Dr O'Connor111

The suspension111

Professor Cocklin111

Professor Murray113

The Student Agreement and the imposition of conditions114

The exclusion114

Professor Bull114

The Review Panel115

Conclusion116

Indirect discrimination116

Victimisation117

The claim against each of Professor Murray, Dr Rasalam and Professor Bull120

Relief121

Orders123

REASONS FOR DECISION

Introduction

1. [1]
   This matter involves a complaint brought by the Applicant against the Respondents under the Anti-Discrimination Act 1991 (Qld) (the ADA).
2. [2]
   The matter has been referred to the Tribunal by the Queensland Human Rights Commissioner (the Commissioner) in consequence of a complaint lodged by the Applicant on 23 July 2019 (the Complaint).^[1]
3. [3]
   The Complaint concerns the alleged treatment of the Applicant, by the Respondents, during the time that he was enrolled as a student with the First Respondent (JCU) in the Bachelor of Medicine, Bachelor of Surgery degree (the MBBS course).^[2]
4. [4]
   The treatment alleged against the Respondents involved:

   1. a failure to investigate (or properly investigate) complaints made by the Applicant concerning the conduct of other students in relation to rumours that were said to be circulating about the Applicant;
   2. the suspension of the Applicant from the MBBS course (for a period of approximately 11 weeks) in 2018;
   3. the requirement that the Applicant sign a student agreement on 3 August 2018 (the Student Agreement) containing conditions the Applicant was required to comply with upon his return from suspension;
   4. the subsequent exclusion of the Applicant from JCU in 2019.
5. [5]
   The Applicant alleges that the treatment the subject of the Complaint amounted to:

   1. direct discrimination under the ADA;^[3]
   2. indirect discrimination under the ADA;^[4]
   3. victimisation under the ADA.^[5]
6. [6]
   As will emerge, the Applicant’s case is factually complicated, involving alleged conduct over a lengthy period of time, and raising for consideration the conduct or actions of various staff members employed by JCU.

Jurisdiction and procedure

7. [7]
   The Commissioner referred the Complaint to the Tribunal pursuant to s 166(1)(b) of the ADA.
8. [8]
   The Tribunal has the function of hearing and determining the Complaint pursuant to s 174A(a)(iv) of the ADA.
9. [9]
   Pursuant to s 174C(1) of the ADA, the Tribunal may exercise the powers conferred on it under the ADA or the ‘relevant tribunal Act’ (in this case, the Queensland Civil and Administrative Tribunal Act 2009 (Qld)).
10. [10]
    Section 209 of the ADA provides for the orders that the Tribunal may make if the Complaint is proven.
11. [11]
    The Tribunal may make an order dismissing the Complaint (ADA, s 210).

The parties and their witnesses

The Applicant and his witness

12. [12]
    The Applicant filed his own statement (exhibit 5) (the Applicant’s statement). The Applicant also filed responses to the affidavits filed on behalf of the Respondents (which responses comprise exhibits 8, 9, 10, 11, 12, 13 and 35). The Applicant was cross-examined at the hearing by Counsel for the Respondents.
13. [13]
    The Applicant also filed a statement of Nimath Malawaraarachchi (exhibit 6) (Mr Malawaraarachchi’s statement). Mr Malawaraarachchi was not required for cross-examination.

The Respondents’ witnesses

14. [14]
    The Respondents filed affidavits of the following persons:

    1. the Second Respondent (Professor Murray) (exhibit 17) (Murray affidavit);
    2. the Third Respondent (Dr Rasalam) (exhibit 28) (Rasalam affidavit);
    3. the Fourth Respondent (Professor Bull) (exhibit 30) (Bull affidavit);
    4. Professor Christopher Cocklin (exhibit 18) (Cocklin affidavit);
    5. Professor Tarun Sen Gupta (exhibit 19) (Sen Gupta affidavit);
    6. Professor Brett McDermott (exhibit 15) (McDermott affidavit);
    7. Dr Jane Harte (exhibit 31) (Harte affidavit);
    8. Dr Johnathon Hodge (exhibit 21) (Hodge affidavit);
    9. Dr Teresa O'Connor (exhibit 33) (O'Connor affidavit);
    10. Dr Michael Wohlfahrt (exhibit 20) (Wohlfahrt affidavit);
    11. Ms Elizabeth Ware (exhibit 24) (Ware affidavit);
    12. Ms Jodie Midson (exhibit 23) (Midson affidavit).
15. [15]
    Professor Cocklin was not required for cross-examination.
16. [16]
    Dr O'Connor was required for cross-examination but for the oral reasons given during the course of the hearing, I ruled that Dr O'Connor would not be required to attend for cross-examination in light of an ongoing illness suffered by her.
17. [17]
    The other witnesses were cross-examined by the Applicant.
18. [18]
    It is not disputed that each of the JCU witnesses was acting within the scope of their employment with JCU at the relevant times.

The burden of proof and evidential issues

The relevant ADA provisions

19. [19]
    The ADA makes express provision for the operation of the burden of proof.
20. [20]
    By s 204 of the ADA, it is for an applicant to prove, on the balance of probabilities, that the respondent contravened the ADA, subject to the requirements in s 205 and s 206 of the ADA. Section 204 reflects the civil burden of proof.
21. [21]
    In a case involving an allegation of indirect discrimination, the respondent must prove, on the balance of probabilities, that a term complained of is reasonable.^[6]
22. [22]
    If a respondent wishes to rely on an exemption provided for by the ADA, the respondent must prove, on the balance of probabilities, that the exemption applies.^[7]

Consideration of Briginshaw v Briginshaw

23. [23]
    The Respondents submit that:^[8]

The allegations made against the respondents are particularly serious. Accordingly, the observations of Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 are apposite.

(footnote omitted)

24. [24]
    The Respondents also rely on the decision in Smith v Hehir and Financial Aust Pty Ltd.^[9] In that case, the Member said:^[10]

Overall, the complainant has an obligation to prove her case on the balance of probabilities (s. 204). It is now clearly established in Australian anti-discrimination law that this burden of proof is subject to the application of the test set out in Briginshaw v. Briginshaw (1938) 60 CLR 336, where the High Court of Australia held that in applying the civil standard of proof, account must be taken of the gravity of the allegations and of the serious consequences to the respondent following any adverse finding. This means that the more serious the allegations are, it may be reasonable to expect a complainant to prove the case beyond a slight difference in probity when weighing the evidence. Allegations of sexual harassment are serious matters. Therefore, the complainant in this case must establish to the satisfaction of the Tribunal that the events as alleged by her occurred, and at a level greater than the merest difference in the balance of probabilities … This can be achieved through the cumulative weight of the evidence in its entirety rather than necessarily weighing the evidence for and against every particular allegation in isolation …

25. [25]
    In Briginshaw v Briginshaw,^[11] Dixon J said:^[12]

But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

26. [26]
    In approaching the burden of proof (as provided for by s 204 of the ADA), I respectfully adopt the following observations of Branson J in Qantas Airways v Gama,^[13] made in the context of the Commonwealth Racial Discrimination Act, which observations I consider to be also apposite to the position under the ADA:

    1. ‘each of the expressions ‘the Briginshaw standard’ and ‘the Briginshaw test’ should be avoided because of its tendency to mislead’;^[14]
    2. Dixon J was concerned with ‘the appropriate standard of persuasion in respect of individual allegations of material fact rather than with the standard of persuasion appropriate to be adopted in respect of all allegations made in a particular civil proceeding’;^[15]
    3. Dixon J ‘made plain that before accepting the truth of evidence of a particular allegation, the tribunal should give consideration to the nature of the allegation and the likely consequences which will follow should it be accepted’ (and ‘the common law has not developed a third standard of persuasion; it acknowledges only the two standards – the criminal standard of beyond reasonable doubt and the civil standard of balance of probabilities or reasonable satisfaction’).^[16]
27. [27]
    On this basis, consideration should be given to the nature of the individual allegations of material fact made by the Applicant and the likely consequences which would follow should they be accepted.
28. [28]
    The Tribunal is not bound by the rules of evidence and, amongst other matters, must have regard to the reasons for the enactment of the ADA as stated in the preamble.^[17]

The claim of direct discrimination

The threshold issue

29. [29]
    The threshold issue is whether the alleged direct discrimination has occurred in an area in which the activity is governed by the ADA.^[18]
30. [30]
    One of the purposes of the ADA is to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work, education and accommodation.^[19]
31. [31]
    This purpose is to be achieved by prohibiting discrimination on a ground set out in Part 2 and of a type set out in Part 3 and in an area of activity set out in Part 4, unless a relevant exemption applies.^[20] The area of activity relevant to the present case is that of education.
32. [32]
    Section 39 of the ADA provides:

An educational authority must not discriminate—

1.  in any variation of the terms of a student’s enrolment; or

2.  by denying or limiting access to any benefit arising from the enrolment that is supplied by the authority; or

3.  by excluding a student; or

4.  by treating a student unfavourably in any way in connection with the student’s training or instruction.

33. [33]
    The Respondents accept that JCU was an ‘educational authority’ within the meaning of s 39 of the ADA.^[21]
34. [34]
    In my view, each aspect of the alleged treatment falls within the scope of s 39.
35. [35]
    I consider that:

    1. the alleged failure to investigate (or properly investigate) falls within the scope of s 39(d);
    2. the suspension falls within the scope of each of s 39(a) and s 39(d);
    3. the imposition of the conditions of the Student Agreement falls within the scope of each of s 39(a) and s 39(d); and
    4. the exclusion falls within the scope of, at least, s 39(c).

The relevant provisions of the ADA concerning direct discrimination

36. [36]
    ‘Discriminate’ is defined in Schedule 1 to the ADA to mean ‘discriminate whether by direct discrimination or indirect discrimination’.
37. [37]
    ‘Direct discrimination’ on the basis of an ‘attribute’ happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.^[22]
38. [38]
    It is not necessary that the person who discriminates considers the treatment is less favourable.^[23]
39. [39]
    The person’s motive for discriminating is irrelevant.^[24]
40. [40]
    If there are two or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.^[25]
41. [41]
    Section 7 of the ADA sets out a list of the ‘attributes’ in respect of which the ADA prohibits discrimination. The attributes relevant to this case are addressed below.
42. [42]
    Section 8 of the ADA extends ‘Discrimination on the basis of an attribute’ to include direct discrimination (and indirect discrimination) on the basis of each of the matters identified in subsections 8(a), (b), (c) and (d).
43. [43]
    The Respondents do not rely on any exemption provided for by the ADA.

Establishing direct discrimination

44. [44]
    In my view, in a claim of direct discrimination, an applicant must establish the following matters (adopting the essential matters identified in Tafao v State of Queensland & Ors (at first instance)^[26] and including some anterior matters):^[27]

    1. that the applicant has been subjected to^[28] ‘treatment’^[29] by a respondent which treatment is alleged to amount to discrimination;
    2. that the applicant:
       3. (i)
          has, at the time of the treatment, or previously had,^[30] an ‘attribute’ (or more than one attribute) set out in s 7 of the ADA;
       3. (ii)
          further or alternatively, has, at the time of the treatment,^[31] a ‘characteristic’ of the type identified in subsections 8(a) or (b) (or both) of the ADA;
    3. further or alternatively to (b) above, that the respondent ‘presumed’ the applicant to have, or to have had at any time, one or more of the attributes set out in s 7;
    4. the circumstances in which the applicant was subjected to the relevant treatment;
    5. that the applicant has been treated^[32] ‘less favourably’ than another person^[33] without each attribute, presumed attribute, or characteristic is, or would be, treated in circumstances that are the same or not materially different to the circumstances in which the Applicant was subjected to the relevant treatment; and
    6. the attribute, presumed attribute, or characteristic is, at least, a ‘substantial reason’ for the less favourable treatment.^[34]
45. [45]
    In relation to the matters set out at subparagraphs [44](e) and (f) above:

    1. as was said by Holmes JA (as her Honour then was) in Lyons v State of Queensland,^[35] in a claim of direct discrimination, ‘the question is whether less favourable treatment occurred on the basis of an attribute’ and ‘it would be a misapplication of s 10 to treat an attribute which merely gives rise to the circumstances in which particular treatment occurs as being the basis for that treatment’;
    2. in JM v QFG, Davies JA said:^[36]

By s. 10(1) direct discrimination on the basis of an attribute happens if a person treats or proposes to treat a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different. By subs. (4) if there are two or more reasons why a person treats or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment. The effect of the application of subss (1) and (4) to the present facts, in my view, is that the second respondent directly discriminated against the appellant if and only if a substantial reason for his refusal of treatment was either her lesbian sexual activity or her exclusive lesbianism.

(footnote omitted)

46. [46]
    In order to address the above matters, given the nature of the Applicant’s case, I consider that the most convenient approach is to address the factual matters in chronological order. Before doing so, I make some observations about the Applicant’s written submissions.

Observations on the Applicant’s written submissions

47. [47]
    First, a number of the Applicant’s submissions^[37] raise matters which may be relevant if this proceeding involved a merits review of the decisions made on behalf of JCU, for example, the Applicant seeks findings as to the actual existence and extent of the rumours said to have been circulating about him, and the persons who he contends should have been investigated in order to reveal the truth of the Applicant’s complaints. However, this case is not one of merits review. Nor is it one to determine whether the Applicant was afforded procedural fairness by JCU in relation to the treatment of which he complains.^[38] I have identified a number of instances where the Applicant seeks findings which I consider to be irrelevant, however, the instances are not intended to be exhaustive.
48. [48]
    Second, a number of submissions comprised mere rhetorical questions.^[39]
49. [49]
    Third, a number of the Applicant’s factual contentions are cross-referenced to the evidence. Many are not. In the Respondents’ submissions in reply, the Respondents have identified what they submit are the contentions that are unsupported by the evidence. I have endeavoured to identify the factual basis for the Applicant’s factual contentions, but the Applicant’s failure to cross-reference many factual contentions to the asserted evidence has made this a very difficult task given the volume of material before the Tribunal.
50. [50]
    In short, I have addressed only those submissions which I consider to be arguably relevant to the issues in dispute and which are supported by some identifiable evidence.

The relevant facts

51. [51]
    I set out below what I consider to be the relevant facts.
52. [52]
    With respect to the transcript references in these Reasons, I note that there is an issue with the page numbering for Days 2 and 3 of the hearing. The transcript page numbering for Day 2 commences with a ‘3’ and the page numbering for Day 3 commences with a ‘1’ (as does the Day 1 transcript). To identify the relevant transcript for the first three days, I have included the date of those days in the transcript references (being 19 April 2023, 20 April 2023 and 21 April 2023 respectively).

Events leading up to the Applicant’s suspension

53. [53]
    In January 2016, JCF, a student enrolled in the MBBS course, approached Dr O'Connor in relation to the Applicant. JCF said that the Applicant had confronted him about rumours about the Applicant being involved in ISIS. JCF said that he had heard that rumour and various other people had told him that there was this rumour going around about the Applicant being involved in ISIS.^[40] JCF said that the Applicant had approached him and accused him and other unnamed students of saying that he (the Applicant) was a member of ISIS and was a terrorist.^[41] JCF said that at the time he didn’t know the Applicant.^[42] JCF did not want to progress the matter, he only wanted to discuss his options.^[43] Dr O'Connor advised JCF to keep his own records.^[44] Dr O'Connor advised that she would send him an email providing links to JCU resources, including the JCU Discrimination and Harassment Policy and Procedure.^[45]
54. [54]
    On 28 January 2016, the Applicant approached Dr O'Connor.^[46] The Applicant told Dr O'Connor that he had been told by friends that a small group of Coptic Christian Egyptian students were spreading rumours that he wanted to go and ‘join ISIS’ and that he looked like a ‘terrorist’.^[47] I will refer to these rumours collectively as the ‘ISIS rumour’ (as submitted on behalf of the Respondents).
55. [55]
    Following the meeting, also on 28 January 2016, Dr O'Connor sent the Applicant an email.^[48] The email stated:

Thank you for coming to discuss the situation regarding gossip and rumour about you that you have become aware of within your cohort. You advised me that you have been the subject of rumours since last year and that this had an impact on your studies last year. You have spoken with the students who you were informed had been spreading the rumours including the person who you believe was the origin of the rumours. You believe that the matter is now dealt with.

I advised you that it is important to find a way through this so that it does not continue to impact you and your studies. One option is to not respond to the rumours - a lack of reinforcement will often lead those involved to lose interest in the matter.

One of the advantages of the Year 4 timetable is that students are no longer regularly in contact with each other on a day to day basis. You should also consider not having regular contact with the individuals on social media.

There are formal processes and University policies that may be pertinent to the situation you have discussed.

3. 1.
   The University’s Student Conduct Policy https://www. jcu.edu.au/ policy/student-services/student-conduct-policy outlines the University’s expectation of student conduct.

3. 2.
   The University has a Discrimination and Harassment Policy and Procedure which describes the way in which complaints of this nature can be dealt with https://www.jcu.edu.au/policy/equity/ discrimination-and-harassment-policy-and-procedure Section 6 outlines the steps in managing a complaint under this policy.

Please contact me if you have further questions or concern.

56. [56]
    In the email, Dr O'Connor said that ‘one option’ was not to respond to the rumours because a lack of reinforcement will often lead those involved to lose interest in the matter.
57. [57]
    In paragraph [1] of his written submissions,^[49] the Applicant submits that he ‘gave the names of [JCL] and [JCF]’ to Dr O'Connor at the 28 January meeting. The Respondents submit that there is no evidence to support this assertion.^[50] At paragraph [54] of his statement, the Applicant stated that he requested that Dr O'Connor speak with the students ‘he named’. However, the Applicant did not identify the names of the students he allegedly gave to Dr O'Connor. Further, in cross-examination, the Applicant accepted that he did not give Dr O'Connor the names of any students at this meeting.^[51] I find that the Applicant did not give Dr O'Connor the names of JCL or JCF.
58. [58]
    The Applicant states in his statement:^[52]

3. 60.
   Sometime later in the semester, towards mid-2016, I was told by my friends that a student named [JCC] was now building on the rumours from the Coptic students and saying that the impact of those rumours on me was leading me to struggle with my fourth-year studies because ‘I had been bullied’.

3. 61.
   Nothing of the sort was occurring.

3. 62.
   As far as I was aware by then, the Coptic students were no longer spreading those rumours because of the steps I had taken, however [JCC], a rather vocal student in terms of matters of political correctness, was referring to those rumours and telling students they had impacted me negatively.

59. [59]
    On 10 June 2016, the Applicant again met with Dr O'Connor. The purpose of this meeting was to discuss the Applicant’s exams.^[53] The Applicant raised the issues relating to gossip during the meeting. The Applicant thought the gossip was ‘affecting’ his relationships with other students and that he was concerned it would affect his opportunities as a doctor.^[54] Dr O'Connor reiterated her advice in the email of 28 January 2016, relating to moving forward from these issues, and the complaints procedure.^[55] The Applicant submits (at paragraph [4] of his written submissions) that the main purpose of raising the rumours was to inform Dr O'Connor that ‘students were ignoring the Applicant’. There is no evidence that the Applicant advised Dr O'Connor in these terms. However, I accept that the Applicant said that he thought the gossip was affecting his relationships with other students.
60. [60]
    The Respondents submit that ‘Dr O'Connor made some enquiries with JCU students about this matter and was not able to find any evidence of the rumours’,^[56] relying on an email sent by Dr O'Connor to Professor Murray on 8 August 2017 in which it was stated ‘Last year I spoke with several students about this matter (Coptic Christians) and it seemed to resolve’.^[57] The Respondents led no evidence of the identity of the students spoken to (or even the number of students), nor the date or dates on which such students were spoken to, much less evidence as to the content of the discussions between Dr O'Connor and the respective students. As the Applicant submits,^[58] there are no file notes of meetings or conversations with such students. During her interview with Ms Simmons in December 2018, Dr O'Connor did not mention talking to students other than JCF during 2016. The Applicant was unable to pursue this issue with Dr O'Connor because of her non-availability at the hearing. Having regard to the state of the evidence on this issue, I reject the Respondents’ submission that Dr O'Connor ‘was not able to find any evidence of the rumours’. The submission runs counter to the evidence that JCF had informed Dr O'Connor that he had heard rumours of that nature. I find that JCF’s statement to Dr O'Connor provided some evidence of the ISIS rumour.
61. [61]
    On 30 November 2016, Dr O'Connor contacted the Applicant to inform him that he failed Year 4 of the MBBS course and that he would need to provide a statement of reasons as to why he did not pass.^[59] Dr O'Connor followed this up with the Applicant on 7 December 2016.^[60]
62. [62]
    The Applicant refers to an email sent by him on 16 December 2016.^[61] Neither the Applicant nor the Respondents put that email into evidence. However, the Applicant points out that Professor Murray cited an extract from an email of that date in exhibits “RM-18”and “RM-22” of Professor Murray’s affidavit. The cited extract was that students ‘started false rumours about me such that ‘[the Applicant] has been bullied’ or ‘someone was racist to [the Applicant]’ which has made my life 10 times more stressful and none of these rumours are true’. When regard is had to paragraph [1b] of exhibit “RM-22”, it is plain that Professor Murray treated that statement as relating to the Victim of racism rumour (and not the ISIS rumour).
63. [63]
    Insofar as the Applicant complains that Dr O'Connor did not investigate the ISIS rumour, I find that:

    1. in relation to this rumour, the Applicant did not identify to Dr O'Connor the names of any students who were said to be involved in the spreading of the rumour;^[62]
    2. I infer that the Applicant complained to Dr O'Connor about ‘Coptic Christian’ students being involved in the ISIS rumour in 2016;^[63]
    3. Dr O'Connor was informed by the Applicant that the difficulties with the ‘Egyptian students’ had settled;
    4. at no time did the Applicant lodge a formal complaint with Dr O'Connor or JCU in relation to the rumour;
    5. by, at the latest, the middle of December 2016, Dr O'Connor did not have any basis to believe that the Applicant was still complaining about the ISIS rumour.
64. [64]
    On 27 January 2017, the Applicant provided a statement of reasons in relation to his failure to pass Year 4.^[64] The Respondents rely upon the fact that the statement of reasons did not mention the two rumours (as a reason for failing to pass).^[65] That is so. However, the Applicant submits that he was advised by Dr O'Connor to mention his father’s illness as a reason for him failing Year 4. The Applicant gave evidence of this both in his response to Dr O'Connor’s affidavit (exhibit 35) and under cross-examination.^[66] In the absence of any contradictory evidence, I accept the Applicant’s evidence that Dr O'Connor told the Applicant to ‘focus’ on ‘his family issues’.
65. [65]
    The Applicant stated in his statement:^[67]

Not long after returning to re-sit fourth year, I was pretty quickly informed by my friends that the new rumour doing the rounds was that ‘[JCC] was right’ and I had failed fourth year ‘as he said I would’, or words to that effect.

66. [66]
    On 4 May 2017, Dr O'Connor met with the Applicant regarding his progress in the MBBS course. The Applicant said that he was ‘frustrated’ that staff believed he was being ‘discriminated against racially’. Dr O'Connor advised the Applicant to speak with the Year 4 MBBS Coordinator (who was Dr Poornima Roche) regarding this issue.^[68] This evidence was not disputed by the Applicant in his response to Dr O'Connor’s affidavit. The Applicant did not request Dr O'Connor to investigate the matter.
67. [67]
    The Respondents submit that this appears to be the first time that the Applicant raised the issue of rumours circulating that he had been the victim of racism (which I shall refer to as the ‘Victim of racism rumour’).^[69] For the reasons set out in paragraph [62] above, I find that the Applicant first raised this rumour on 16 December 2016.
68. [68]
    The Applicant does not remember approaching Dr Roche but stated he ‘might have’.^[70]
69. [69]
    Dr O'Connor spoke with Dr Roche.^[71] The Respondents rely upon a statement in an email sent by Dr O'Connor to Professor Murray on 16 November 2017,^[72] that Dr Roche ‘advised there were no rumours’. I do not accept this statement as truth that there were in fact no rumours. However, I accept it as evidence of the fact that Dr O'Connor was so informed and note that this formed part of the information that was provided to Professor Murray.
70. [70]
    On 23 June 2017, Dr O'Connor received an email from JCA.^[73] The email stated, relevantly:

…

Last year around June I was approached by [the Applicant], currently a Year 4 Student (repeating) with the accusation that I was engaging in rumours about him behind his back. I assured him that this was not the case, as I really did not even know much of [the Applicant] prior to that interaction. The conversation ended, and I thought that was the end of this interaction.

A few weeks ago this term, I received word that he was mentioning my name as part of a group of people who had previously spread rumours about him - this was in the setting of the private hospital with his rotation group. This was disconcerting because I consider this as hypocritical in a sense and I do not appreciate people speaking poorly and falsely about me in the professional setting.

I ignored the latter events as I usually do not like to involve myself in drama, until a few days ago (last Thursday) when drama landed on my footstep so to speak.

My girlfriend back at home [Redacted] received a lengthy and concerning message regarding me that was completely false, defamatory and extremely concerning in the current climate. Although most of the details in the message are somewhat humorous as they are completely opposed to my nature and values and therefore quite obviously false, there are serious accusations as part of that message that I cannot simply disregard. The message is attached as screenshots below.

…

As per advice, I have spoken to [the Applicant] directly, and asked him whether this was his doing - he denied involvement and more so denied speaking about me in the public setting this term. I have warned him that any further gossip/rumours that I hear of, I will take action legally and he verbally responded to this.

I am therefore unsure who is behind this disconcerting message and defamatory accusation but I would like to flag to the college the names in this message, [the Applicant], and especially [JCE], who has been in many instances involved in this kind of behaviour and is somewhat diabolical in nature and who I am informed was involved in prior rumours of similar nature about [the Applicant].

I have sought to resolve this independently, I have seen the Student Welfare and Equity and yourself as well as A/Prof Louise Young to express my concerns but I do not wish to take further legal action unless this re-occurs.

…

(emphasis added)

71. [71]
    The Applicant submits that the statement emphasised in paragraph [70] above was ‘clear proof that JCE was involved in spreading rumours in regards to the applicant joining ISIS’ (and that JCE turned the allegations against the Applicant).^[74] I reject that submission. JCA is plainly referencing something he was told by a third party, without identifying that person (or those persons). That falls well short of ‘clear proof’. I also note that in referencing ‘prior’ rumours, there was no suggestion that any such rumours were ongoing.
72. [72]
    Dr O'Connor advised JCA on numerous occasions that there was no evidence that the Applicant was the author of this Facebook message; that he (JCA) had made an assumption as to the author; and that no action could be taken on an assumption alone.^[75]
73. [73]
    On 8 August 2017, Dr O'Connor met with the Applicant.^[76] The Applicant states that he said to Dr O'Connor:^[77]

I thought to myself that I just dealt with one rumour which completely marginalised and isolated me from the society. I do not want to deal with another rumour that could make it difficult for me to work with people. I want to focus on my studies as well and prevent people from bringing up my name.

I thought if a Jewish student is bringing this issue up, Jewish staff members might also be talking about this as well. They might have passed on this information to the CPC tutor therefore I brought up this issue … and because my friends said that I should take this issue seriously and talk to the Dean. Because it could become like the other rumour/talk.

(footnote omitted)

74. [74]
    Dr O'Connor recalls that the Applicant alleged that JCU staff were saying that he was a victim of racism.^[78] He spoke of the Jewish cohort within JCU trying to use his case as a way of fighting injustice but the Applicant did not specifically name any student that was spreading these rumours.^[79]
75. [75]
    Also on 8 August 2017, Dr O'Connor sent an email to Professor Murray.^[80] In that email, Dr O'Connor reported her meeting with the Applicant as follows:

    1. the Applicant said people from minorities were keen to push the anti-racism agenda to ensure that everyone becomes correct in their behaviour;^[81]
    2. he had difficulties with Egyptian students but that those matters have settled;^[82]
    3. Jewish and Middle Eastern students are concerned about him and that someone has contacted his parents about these matters;^[83]
    4. Dr Monika Zimanyi (a staff member employed by JCU) has concerns for him;^[84]
    5. he was not himself a victim of racism but that he had concerns that people think he is;^[85]
    6. the Applicant believes that JCU ensured he never went with a ‘white’ student on clinical placements;^[86]
    7. he wanted to meet with Professor Murray;^[87]
    8. she (Dr O'Connor) should check with both Ms Simone Ross and Professor Peter Johnson (staff employed by JCU) about the ‘gossip’ about him being bullied.^[88]
76. [76]
    In the Applicant’s response to Dr O'Connor’s affidavit (exhibit 35), the Applicant contested only two aspects of this evidence. First, with respect to subparagraph [75](c) above, the Applicant stated that he did not refer to Middle Eastern students, only ‘Jewish students’. Second, with respect to subparagraph [75](a) above, the Applicant stated that he did not say ‘people from minorities’, but said ‘Jews’. Although there is some corroboration of Dr O'Connor’s evidence in the form of the email (albeit that there is no supporting file note), in circumstances where Dr O'Connor was not available for cross-examination and where the Applicant was not directly challenged on the above evidence, I accept the evidence of the Applicant in this regard.
77. [77]
    On 9 August 2017, Dr O'Connor sent an email to Professor Murray.^[89] The email stated, relevantly:

At the meeting yesterday [the Applicant] asked me to check with both Simone Ross and Pete Johnson about the ‘gossip’ about him being bullied. I’ve checked with both. Simone doesn’t know who he is and Pete has heard nothing about bullying or any other issue. He remembered that [the Applicant] had difficulty last year (he failed Med 4).

So that’s now 3 staff members whom he said knew about his situation who have no knowledge (2 don’t know him).

I have not confronted [the Applicant] about any delusional thoughts in my meetings with me but have tried to probe him about evidence and sources. Yesterday he was the clearest he has ever been in his statement that he believes it is some political agenda driving all this - before this I couldn’t really understand what he was trying to tell me.

I’ll leave the direction of the discussion up to you but will be happy to let [the Applicant] know that I’ve spoken with the 3 staff members he asked me to and they deny any knowledge of the situation. However I realise that might just drive the delusion further as it’s more evidence of some conspiracy.

78. [78]
    In paragraph [54] of her affidavit, Dr O'Connor stated that the Applicant’s ‘constant discussions’ that the Jewish community was ‘running’ JCU raised concerns for her. In his response, the Applicant denied that he said the Jewish community was ‘running’ JCU but said that they had ‘a lot of influence over JCU’. I accept the Applicant’s evidence in this regard because, first, Dr O'Connor did not use the term ‘running’ in either of the two emails sent to Professor Murray on 8 and 9 August 2017 and, second, the Applicant was not directly challenged in cross-examination on the statement in his response.
79. [79]
    On or about 10 August 2017, Dr O'Connor and Professor Murray met with the Applicant.^[90] Dr O'Connor’s evidence of that meeting is that the Applicant:

    1. advised that there were rumours being spread within his cohort;^[91]
    2. advised that there had been trouble with some Egyptian students, but this had all been cleared up;^[92]
    3. advised that JCU staff were talking about him and it was probably Jewish staff members;^[93]
    4. did not provide the names of any JCU students or staff said to be involved.^[94]
80. [80]
    The Applicant did not dispute this evidence in his response, and I accept Dr O'Connor’s evidence in this regard.^[95]
81. [81]
    Professor Murray’s evidence as to the discussion at the meeting is as follows:^[96]

During that meeting, the Applicant gave an account of his concerns, namely that he believed that other students and members of staff were talking about him as being a victim of racism or bullying. He explained that this belief was based upon what friends had told him they had heard and that he wanted people to stop talking about him. The Applicant confirmed that he had confronted students whom he believed were talking about him. He agreed, at my request, during this meeting that he would provide a written detailed account of his concerns once he had completed his current clinical rotation. I requested that the Applicant provide the names of the students who had advised him of these rumours. I did not request that the Applicant confront the students he believed to be spreading the rumours.

82. [82]
    In the Applicant’s statement (exhibit 5), he said the following (in relation to this meeting):^[97]

3. 103.
   Professor Murray told me in this meeting to go and ask people or friends I knew who could confirm that these rumours were occurring.

3. 104.
   Professor Murray says that he also asked me in this meeting to provide a written account of what I had experienced but I do not agree that he did request that from me then.

83. [83]
    In cross-examination, the Applicant gave the following evidence:^[98]

All right. Well, do you recall having a meeting with Dr O'Connor and Professor Murray on the 10^th of August 2017?

I don’t remember the dates.

Well, I know I suggested a moment ago it was by telephone, but is it possible that the meeting was in person?

Is it - it’s possible. Yes.

Yes. So what - putting aside the date. I just want you to focus on the first meeting you recall with Professor Murray and Dr O'Connor and yourself in 2017?

The - the very first meeting. Yes.

Okay. Can I suggest that at the start of that meeting, you advised Dr O'Connor and Professor Murray that there were rumours being spread amongst - about you amongst your cohort?

That’s correct.

And can I suggest that you told them that there had been some trouble with some Egyptian students, but that had been cleared up?

I told them that I - yes. There was trouble with Egyptian students, and I’d approached them. Yes.

And that it had been cleared up?

The rumour, I don’t know. But my issue with the Egyptians were the - no longer an issue at that time with those two Egyptians - with one Egyptian that - that I approached.

And can I suggest that you told them that the rumour you were presently concerned about was that you had been the victim of bullying and racism?

That’s correct.

And you told them that you knew of the existence of this rumour because you had been told of it by your friends?

That’s correct.

You advised them that JCU staff were talking about you?

Yes. That was the issue with the doctor that - one of them that I mentioned.

And can I suggest that you said that it was probably the Jewish staff who were talking about you?

Yes. I was concerned that somebody from JCU had passed on that information to [indistinct]

But specifically, you had suggested that it was probably the Jewish staff who were talking about you?

Yes. That was one of the suggestions. Yes.

84. [84]
    The Applicant accepted in cross-examination that Professor Murray asked the Applicant to identify the names of the students who had spoken to the Applicant and told him of the existence of the rumours.^[99] I also find that, in cross-examination, the Applicant ultimately did not dispute that Professor Murray asked him for evidence of the source of the Applicant’s knowledge of the rumours rather than evidence of the source of the rumours.^[100]
85. [85]
    With respect to the issue of whether Professor Murray asked the Applicant to provide a written account of his concerns, I prefer the evidence of Professor Murray to that of the Applicant having regard to the following evidence of the Applicant in cross-examination (which reveals a lack of certainty on the part of the Applicant):^[101]

And can I suggest to you that during the meeting, Professor Murray asked you to provide a written account of your concerns?

I don’t remember that.

It’s possible he did that, though, isn’t it?

I’m not sure. I don’t think he - I don’t think he asked for a written account. I - I remember he asked that I should contact my friends and get my friends to give evidence to him.

86. [86]
    On 11 October 2017, Dr O'Connor received a further email from JCA complaining that the Applicant had approached him again.^[102] The email stated:

I would like to inform you that following my conversation with Ann to swap me out of the same living arrangements as [the Applicant], I have been contacted by him.

In this conversation he asked me what I told Ann in order to get swapped, to which I said I just don’t want to be with that student.

In that conversation, [the Applicant] also further accused me of further spreading gossip about him to my friends regarding the defamatory message sent about me, accusing me of telling my friends he sent it.

Interestingly, I have not told any of my friends about that message. He does not believe anything that I say when I say that this is not true.

At this stage, I have exams to focus on and I am not tolerating any drama. I will just ignore him, and not let it bother me as I know not much can be done. However, I thought you should know as he made the effort to contact me directly re this. I really hope this doesn't follow me to [Redacted] as nothing I say to him seems to take effect.

I have asked Ann to not approach him regarding the matter as this only will exacerbate things.

87. [87]
    The Applicant makes a number of submissions in response to this evidence at paragraph [16] of his written submissions. Without reproducing those submissions, I find that they do not assist the Applicant. The thrust of the submissions appears to amount to an asserted justification for the Applicant’s approach to JCA, namely that he was ‘forced to go and talk to [JCA] to make sure he does not cause further accusations and make any false accusations about the applicant to the accommodation manager in MacKay [sic] or start a false rumour in MacKay [sic]’. In my view, the Applicant’s rationale for approaching JCA is irrelevant to the issues raised in this case. It is an example of the Applicant’s tendency to treat the complaint as a merits review application. In support of his submission, the Applicant also asserted that JCA ‘spread false rumours within the cohort that the applicant had contacted his girlfriend’ and that the Applicant had heard these rumours from other students such as Justin Smith. Not only is this irrelevant to the proceeding, there is no evidence to support the assertion. The Applicant further submitted that JCA on ‘at least 2 occasions admitted that he had heard rumours from JCF and JCE regarding the applicant’. The Applicant has provided no reference to the evidence asserted to support such a submission. The Respondents submit that there is no evidence to support this submission. I have been unable to identify any supporting evidence. I also observe that the substance of the submission is unclear. It raises the question of the person to whom JCA allegedly made the admission (e.g. the Applicant?) and what was the content of such rumours. I do not accept the Applicant’s submission in this regard.
88. [88]
    On or about 15 November 2017, JCB, another student in the MBBS course, sent an email to Dr O'Connor complaining that the Applicant had confronted him.^[103] JCB stated in the email:

I am writing to inform you of a very peculiar and alarming encounter I had after I had completed my OSCE this morning:

I was sitting down with friends when I was approached by someone in my year group who I have never come in contact with before. He asked whether I could talk with him in private on the other side of the room. We sat down and he said that he had been meaning to talk to me for a while but he felt like this was an opportune time. He said that he had heard that I had been talking about him behind his back and been saying that he was repeating the year because he had been bullied the previous year for being a muslim and refugee. He said he had heard that I, as well as many other Jews in Townsville, had been talking about him behind his back. I proceeded to look at his lanyard since I didn’t even know his name, which is [the Applicant], and told him that I had no clue what he was talking about. I told him that I didn’t even know his name. He said he had been told that I was talking about him and other Jews had as well including [JCI], [JCJ], [JCK] and [JCC] (who are all in Cairns). I told him that I wouldn’t know as I have never had any contact with him and am distanced from those people as we live in different places. There are only a few Jewish students as it is. He said that he understands there can be animosity because he is a Muslim and has said things against Jews and Israel but he is not an anti-semite. He said that if he heard this again he would be taking this further verbally and PHYSICALLY. I said to him that I had no clue about it, had nothing to really offer as a response and am sorry that this has happened to him. He wouldn’t reveal who had told him this but was adamant this was the truth and I could not say anything otherwise.

I hope this can be documented and you may proceed as necessary if you feel appropriately.

89. [89]
    JCB subsequently spoke with JCU staff members Dr Paula Heggarty and Dr Roche about his complaint.^[104] Dr O'Connor was on leave at this time and asked Professor Murray to deal with the matter.^[105]
90. [90]
    The Applicant denies that he ever, as he put it, ‘threatened [JCB] with violence’. The Applicant made this denial in a response that he subsequently made to the Review Panel.^[106]
91. [91]
    In my view, it is not relevant to a determination of the issues in this case to resolve the issue of whether or not the Applicant said that he would take action against JCB ‘physically’.^[107] Rather, the fact is that a complaint was made to Dr O'Connor in the terms of JCB’s email and the Applicant denied having threatened JCB ‘with violence’ (and none of JCU, Professor Murray or Dr O'Connor sought to obtain further evidence in relation to that factual contest). In my view, these are the circumstances in which the Respondents’ alleged treatment of the Applicant is to be considered.

92. [92]
    On 16 November 2017, Professor Murray telephoned the Applicant.^[108] Professor Murray’s evidence in relation to that discussion is recorded in an email from Professor Murray to Dr O'Connor sent on 16 November 2017.^[109] The email stated, relevantly (including a part upon which the Applicant relies to argue the issue of the alleged presumed mental illness):^[110]

…

I rang and spoke with [the Applicant]. He is in Brisbane visiting family and will not be back until December 10 (exams on 11th and 12th he says). I said that I had been wanting to finish our conversation and that he had undertaken to come back to us with information about the friends who had (allegedly) been relaying to him on information on talk that they’d heard.

I mentioned that you had had a report from a concerned student with whom [the Applicant] had apparently challenged that he had been talking about him. [the Applicant] said that he was OK and not worried and that he was also happy to meet. I emphasised that we were wanting to understand any continuing concerns that might still have and to consider how we might help.

I’ve suggested that we meet when he is in Townsville after his exams …

He seems composed and unconcerned, sounding similar to our last meeting. His reported thoughts and behaviour do raise a continuing question as to whether his paranoid thoughts are severe enough to be considered delusional and perhaps a manifestation of early schizophrenia or delusional disorder. He appears to be insightful in other ways and his speech and affect seem pretty normal.

So, with him away from JCU and with family and on the basis that we have what appear to be reasonably long-standing paranoid thinking in an otherwise high-functioning person, I don’t think we need to take any urgent action. Let’s make an assessment after the exams and our discussion. I would think that a medical assessment would be next and I would like to try to negotiate that with him.

…

93. [93]
    On 15 December 2017, Dr O'Connor, Professor Murray and the Applicant had a meeting.^[111] Dr O'Connor took notes of the meeting.^[112] The following is Dr O'Connor’s record of the meeting:

…

Meeting:

Meeting called to discuss [the Applicant’s] concerns: [the Applicant] outlined his concerns that students and staff were speaking about him and that it was mostly the Jewish staff and students who were using his case as an example to demonstrate racism still exists and to fight against racism. He said because the Jewish people had a history of being discriminated against, they were very alert to discrimination against others.

[The Applicant] agreed that he had approached several students over the past 2 years asking them about the rumours he believed they were spreading about him. They all denied this.

When he was on rural placement in Charters Towers, he believed the Medical Superintendent changed his behaviour towards [the Applicant] after 3 weeks. [the Applicant] made the inference that someone had spoken with the Medical Superintendent and told him that [the Applicant] was being bullied and had racist statements made against him. He had no evidence for this.

He agreed he had no evidence that others were speaking about him, only that some of his friends told him that he was the subject of rumours. Professor Murray asked [the Applicant] if it was possible that his beliefs about these rumours was incorrect but [the Applicant] was adamant that they were correct. He appeared to have a very fixed view that the circumstances were as he saw them.

Professor Murray advised [the Applicant] that he was concerned about his mental health as his fixed beliefs (which are very real) could be interpreted as paranoia or part of a paranoid disorder. There is no direct evidence for any rumours occurring.

Follow up:

[The Applicant] agreed to contact several of his friends to ask if they would speak with Professor Murray about the rumours they have heard and passed onto [the Applicant]. Professor Murray advised that following discussions with these students he would review the situation and that he may require [the Applicant] to undergo a psychiatric review in 2018.

94. [94]
    The Applicant has addressed the subject matter of the discussion at the meeting.^[113] However, he has not challenged the accuracy of Dr O'Connor’s evidence. In light of the lack of challenge, and the existence of the contemporaneous minutes, I accept the evidence of Dr O'Connor as to the content of the discussion at the meeting, with one exception. The exception is the sentence ‘He appeared to have a very fixed view that the circumstances were as he saw them.’ On its face, this appears to be an observation made by Dr O'Connor, rather than a record of what was said at the meeting.
95. [95]
    The Respondents submit^[114] that a finding should be made that by 10 August 2017 the Applicant was no longer complaining about the ISIS rumour and was only complaining about the Victim of racism rumour and that the Tribunal should find this because:

    1. Dr O'Connor and Professor Murray give that evidence in their affidavits;^[115]
    2. it is consistent with the Applicant’s account of his meetings with Dr O'Connor on 8 August 2017 and 10 August 2017;^[116]
    3. at [62] of his affidavit the Applicant says that by mid 2016, so far as he was aware, the ISIS rumour was no longer being spread;
    4. during cross-examination, the Applicant agreed that by 10 August 2017 the rumour he was concerned with was the Victim of racism rumour;^[117]
    5. the contemporaneous emails and file notes are consistent with this;^[118]
    6. the Applicant only raised the Victim of racism rumour when speaking with Ms Ware, JCM, Ms Williams-Fitzgerald and Dr Wohlfahrt;^[119]
    7. the substance of the Applicant’s response to the First Review Panel was directed at the Victim of racism rumour;^[120] and
    8. the Facebook post made on 5 August 2018 did not complain about the ISIS rumour.^[121]
96. [96]
    I consider the relevant question is not whether the Applicant was in fact no longer complaining about the ISIS rumour, but, rather, whether each of Professor Murray and Dr O'Connor appreciated or understood that the Applicant’s complaints were then only in relation to the Victim of racism rumour.
97. [97]
    I find that:

    1. Professor Murray did not appreciate or understand that, as at 10 August 2017, the Applicant was complaining about the ISIS rumour;^[122]
    2. whilst Dr O'Connor’s state of mind could not be tested by the Applicant, there was no objective evidence from which I can infer that as at 10 August 2017, Dr O'Connor appreciated or understood the Applicant to be complaining about the ISIS rumour.
98. [98]
    I also find that the Applicant did not provide Dr O'Connor or Professor Murray with the names of the particular students he asserted were spreading the Victim of racism rumour, although he did refer to ‘Jewish students’ as being responsible for that rumour.
99. [99]
    On 18 December 2017, Dr O'Connor advised Professor Murray, by email, that Mohammed Mubashir had contacted her at the Applicant’s request and he was happy to speak to Professor Murray about the Applicant’s situation (and that Mr Mubashir was in Canada).^[123] The email also stated:

He [Mr Mubashir] advised me that he has heard rumours from students in higher years than him about [the Applicant] being bullied and there being racist comments made about [the Applicant].

100. [100]
     On 19 December 2017, Dr O'Connor emailed the Applicant stating that only one student had contacted her about the Applicant’s situation and Professor Murray would speak with that student in the New Year.^[124] The Applicant responded by email as follows:

Two students tried to contact you, only one of them reached you the other student called you many times yesterday but you were [sic] phone was busy.

The other student will try to contact you again tomorrow. I am asking some other friends who have heard of these rumours to contact you as well.

101. [101]
     Dr O'Connor responded, by email, requesting the Applicant to ask his friend to email her (Dr O'Connor).
102. [102]
     In the first week of January 2018, the Applicant transferred to JCU’s Mackay campus from Townsville.^[125]
103. [103]
     On or shortly prior to 9 January 2018, after the Applicant’s arrival in Mackay, the Applicant met with Ms Ware.^[126]
104. [104]
     Ms Ware prepared a file note of that meeting in the following terms:^[127]

…

Said there had been problems in Townsville with stories that people had been racist towards hime [sic] and that he had been bullied. He wanted me to know that this stories were politically motivated and were not true. He had spoken to Prof Murray and Teresa O'Connor and there is an investigation.

He wanted to know what people were saying about him, and had I heard anything? He said he doesn’t want people here in Mackay treating him differently because of these stories.

I ensured him firstly that JCU takes racism and bullying very seriously and we would support him and help him if needed. He quickly re-iterated that he had not been the subjected to this type of behaviour, people had just assumed that was why he was not attending activities but it was actually because his father was sick.

I encouraged him to think of Mackay as a new place with a new slate, and most staff would treat him based on how he presented and worked in his rotations, given they would know very little/nothing about his previous experiences in Townsville. I said the Mackay hospital community was multicultural and we had staff born, trained and experienced from many different countries. That said, if he ever felt there were issues he should come and chat with me (or Teresa, if he preferred).

We chatted about his first rotation in AH1 which he is not sure what to expect. He also said his accommodation is really nice.

105. [105]
     In his response to Ms Ware’s affidavit (exhibit 8), the Applicant did not challenge this evidence, nor did he challenge it during his cross-examination of Ms Ware.^[128] I accept Ms Ware’s record of the meeting as an accurate record.
106. [106]
     On or about 15 January 2018, Professor Murray spoke with Mr Mubashir by telephone.^[129] In the email sent to Dr O'Connor that afternoon, Professor Murray stated, relevantly:

[Mr Mubashir] clarified that he regards himself as a personal friend of [the Applicant] and that they met through community circles and the local Mosque two years ago when he started university.

[Mr Mubashir] explained that he had some general awareness of there being talk or conjecture among some students as to the reasons why [the Applicant] ‘was held back a year’ (he failed 4^th year in 2016). That was gossip along the lines that he had been ‘been bullied’ by people in his year, or that there had been jokes about his ethnicity or religious beliefs. [Mr Mubashir] can’t say who might have been the source of that conjecture, which he regarded as vague low level gossip. He is absolutely clear that he did not pass on to [the Applicant] the name of any person (student or staff member) who might have been the source of such commentary. He says that there is a level of insensitivity in the student body about jokes or cultural references and that this might be of concern to [the Applicant].

[Mr Mubashir] suggested speaking with another student, Malward Shirnwarie [sic], who completed 3rd year in 2017 and who he says is closer to [the Applicant].

107. [107]
     The Applicant relies on an email from Mr Mubashir to the Applicant sent on 24 November 2019.^[130] The email states, relevantly (insofar as the content of the conversation with Professor Murray is concerned):

a. When I talked to Professor Murray on the phone, he only asked me if the rumour or talk that “[the Applicant] was experiencing racism and bullying and [the Applicant] failed a year of medicine because of racism” really existed as he seemed not to believe that this rumour really existed. He said that I don’t need to name anyone and he has called me because [the Applicant] had some concerns about people talking about him and which was causing a lot of distractions for him. He wanted to confirm if [the Applicant] was telling the truth. I did confirm to him that some students have recently approached me from the cohorts above and my own cohort and have asked me if [the Applicant] was experiencing racism, because they heard that [the Applicant] failed a year of medicine because he was experiencing racism and bullying. At the end of the conversation he said that I should treat this matter with sensitivity.

b. I also told Professor Murray that there were a group of Coptics who were making derogatory comments about [the Applicant’s] appearance and they were saying that [the Applicant] supports ISIS and he will go and join ISIS. I told Professor Murray that I heard this from 2 Coptic students who were in the medical course on college. I gave him the names of [JCE] and [JCF] to Professor Murray. Professor Murray did not ask any more questions and thank [sic] me as he was about to go to a meeting.

c. [The Applicant] has showed me professor Murray’s letter in which he has said that that I said “it was a low level of gossip”. But I never said that it was a low level rumour. This rumour about [the Applicant] was wide spread to the point that people from other cohorts of the medical course knew about it and other students from other degrees on college knew about it as well.

…

j. I told Professor Murray that I have never heard anything form [sic] any staff members.

108. [108]
     I consider that the material variances between the content of Professor Murray’s email and that of Mr Mubashir’s email are that:

     1. Professor Murray’s email does not mention the statement asserted in subparagraph b. of Mr Mubashir’s email; and
     2. Mr Mubashir takes issue with the statement by Professor Murray that Mr Mubashir said the gossip or rumour was ‘low level’.
109. [109]
     The Applicant cross-examined Professor Murray at length about the telephone conversation between Professor Murray and Mr Mubashir.^[131] However, the Applicant did not put the content of Mr Mubashir’s email (in particular, the matters identified in paragraph [108] above) to Professor Murray.
110. [110]
     I consider that it is unnecessary to resolve the conflict between the competing versions of Professor Murray and Mr Mubashir. It was not suggested to Professor Murray that, and I consider that there is no basis for finding that, the content of Professor Murray’s email was not a genuine statement of his recollection of the conversation with Mr Mubashir. In this context:

     1. I accept that, at the time of his conversation with Mr Mubashir, Professor Murray’s understanding was that the Applicant’s concern was not then that of the ISIS rumour but rather the Victim of racism rumour and, consequently, the names of the students who had knowledge of the (earlier) ISIS rumour would likely not have been a matter of importance to Professor Murray; and
     2. Professor Murray’s focus was on seeking information that had been passed on to the Applicant by Mr Mubashir,^[132] and Mr Mubashir’s email does not state that he told Professor Murray that he (Mr Mubashir) had provided to the Applicant the names of any students involved in either rumour. It is apparent from the evidence of Professor Murray that he was endeavouring to identify the basis upon which the Applicant believed that the Victim of racism rumour was circulating about him.
111. [111]
     If it had been necessary to prefer one version of the conversation over the other, I would have preferred Professor Murray’s version on the basis that it was recorded in his email within hours of the conversation, in contrast to Mr Mubashir’s email given more than 22 months later, particularly where, as noted above, Mr Mubashir’s version of the conversation was not put to Professor Murray in cross-examination.
112. [112]
     I find that, at this time, Professor Murray’s focus was on ascertaining the Applicant’s state of knowledge of the Victim of racism rumour rather than on whether such a rumour was circulating and, if so, the extent of such rumour.^[133]
113. [113]
     On 24 January 2018, Dr O'Connor emailed Professor Murray, stating:^[134]

I have emailed [the Applicant] regarding Malwand Shinwarie but have not heard back from him yet. However I spoke with Liz Ware this morning just alerting her that he may come to discuss ‘rumours’ etc. She immediately said he’d come in on Day 2 of Lecture Week to discuss his concerns. See attached brief notes she wrote after the meeting.

114. [114]
     The notes of Ms Ware referred to in the email are those contained in the file note at paragraph [104] above.
115. [115]
     Subsequently on 24 January 2018, Dr O'Connor further emailed Professor Murray, stating:^[135]

I have spoken with [the Applicant] and Malwand Shinwarie does NOT want to get involved in this matter. However another friend wants to contact us but remain anonymous. I advised that this would be difficult but have given [the Applicant] Kristin’s number asking that the friend ask to speak with you about [the Applicant].

116. [116]
     On 29 January 2018, Dr O'Connor received a telephone call from an anonymous student discussing the rumours being spread regarding the Applicant and sent an email to Professor Murray the same day.^[136] The email stated:

The student who wishes to remain anonymous contacted me today to state that he knows that there have been some rumours about [the Applicant] among the med student body. When I pressed him for details he said that over the past 18 months 3-4 people have asked him if [the Applicant] had been bullied as they had heard this from other students. He also said that another rumour was that [the Applicant] used to be super religious. He is now aware of where the information has come from but he did confirm that he has heard nothing from any staff about [the Applicant].

I asked about whether [the Applicant] had confronted students and he said that [the Applicant] had told him that he had spoken with a couple of students whom he believed were spreading rumours about him.

He advised that he is in the Clinical Years of the program and has known [the Applicant] for some time. He declined to give me his name or year of study. I have given him Kristen’s number and advised him that you wish to speak with him.

117. [117]
     Dr O'Connor states that in the sentence commencing with the words ‘He is now aware of where the information has come from …’ the word ‘now’ should have been ‘not’.^[137]
118. [118]
     On 26 March 2018, Dr O'Connor provided Professor Murray with information she had received from JCM, a student and residential adviser in Mackay; Ms Ann Williams-Fitzgerald, the JCU Mackay Accommodation Manager; and Ms Ware. The information as provided is addressed in chronological order below.
119. [119]
     On or prior to 2 February 2018, the Applicant was reported to have approached JCM. The content of a report of the meeting provided by JCM to Dr O'Connor was as follows:^[138]

This is a report regarding a conversation I had with one of the fifth year medical students - [the Applicant] - who moved to MSRC this year.

[The Applicant] approached me to discuss a sensitive personal matter of his; a matter which he describes has been ongoing since 2013 when his university studies at JCU began. He is deeply concerned that he is a topic of conversation and gossip amongst his peers, and is becoming increasingly worried that now, following his move to Mackay, such discussions will continue and “spread” throughout the cohort of students in Mackay. Such “gossip” he believes stems from his behaviour in pre-clinical years of medicine, when he frequently missed lectures and compulsory clinical skills sessions in order to resolve other personal issues occurring at his home in Sydney. He claims that the Jewish community in particular in his then cohort maintained a “political agenda” against him that in his mind is associated with “racism”. When trying to enquire further what he meant by this, [the Applicant] continued to state that “these people” are “talking about me” and “making up stories about me”. He proposes that the topic of such conversations revolve around “racism” and that the Jewish community proposed this to be the reason he missed so many classes in early years and ultimately the reason he was required to repeat a year of his studies.

I attempted to elicit some reasoning or evidence as to why [the Applicant] believes such rumours are being spread about him in Mackay; he has only been here for three weeks and is adamant that his peers harbour some form of reservations against him. He persistently relayed to me that he feels individuals in the year above him – namely the MBBS class of 2018 – continue to talk, maintaining that students in Cairns have been “formulating rumours” with students in Townsville and Mackay, a statement which cannot be validated by any resounding form of evidence. He is becoming so incredibly consumed in these ideas that he is hesitant to socialise with his peers in Mackay for fear of being scrutinised in an adverse way. Such social anxiety is evident in observing his behaviour over the last few weeks; he often sits quietly in social situations, rarely initiating conversations independently.

The main concern I have following this discussion is the level of paranoia [the Applicant] appears to display with regards to these accusations. He is so adamant that his peers have been formulating rumours against him that his next course of action is to “go public” and post a statement on social media in an endeavour to clear his name. I worry that in doing so, he will only draw unwarranted attention to himself amongst his peers who previously – in my mind – have not been partaking in any of the gossiping that they are being accused of. This is inevitably the exact opposite outcome to what he hopes to achieve – a fact which I quite bluntly explained to him. Personally, I have not heard a single whisper of a rumour about [the Applicant] in the six years of studying alongside him. This makes me highly sceptical that such gossip is even occurring, highlighting the possibility of a delusional thought disorder as cause for his persistent accusations. He has become so fixed on these beliefs – they appear to be consuming his daily life – which makes me worry he will take drastic action against his peers in future. I advised him to seek further support from the accommodation manager to discuss his concerns before acting upon them. When suggesting the idea of more formal psychological support from either a GP or a psychologist, he vehemently refused. I encouraged him to continue talking with myself about this whenever he has further concerns, but strongly suggested the need for him to disclose this matter further with a medical practitioner as a way for him to be relieved of much of his stress.

120. [120]
     On 2 February 2018 the Applicant met with Ms Ann Williams-Fitzgerald, the JCU Mackay Accommodation Manager.^[139] The content of a report of the meeting provided by Ms Williams-Fitzgerald to Dr O'Connor was as follows:^[140]

…

[The Applicant] requested a meeting on Friday 2 February 2018 to discuss a matter that was concerning him.

[The Applicant] advised me that he had spoken with the student RA ([JCM]) earlier in the week about this matter and she had referred him to me. [The Applicant] expressed concerns that there were a group of students harassing him and spreading rumors [sic] about him. He felt it was racial and political in nature. As I enquired for more information from him, he explained that it was not students at the Mackay accommodation but students up in Townsville and that this had been going on for a few years. Students in Y3, Y4 and Y5 medical. They had targeted him because he had been sick and missed classes. He explained to me that it was ‘Jewish students’ and that there was also a JCU staff member involved in some way. I informed him that I did not understand what he meant by that. His response was that they (staff and students) held meetings about issues in the Middle East and he felt he was targeted as he was from the Middle East and muslum [sic].

I started to get concerned that [the Applicant] was sounding paranoid. I gently prompted him for more information and I asked if he had reported this in the past and he said that he had reported it to Teresa O'Connor and also to the Dean of Medicine, Professor Richard Murray. I asked him the status of his complaint and he advised me that the matter is under investigation.

I did advised [sic] him that he could report this matter outside the university if he felt he was not being assisted by the College of Medicine or the University. I also asked him if he wanted me to take this further for him and he said no, not at this stage, he wanted me to keep it confidential.

He felt that the Townsville students were in contact with the Mackay accommodation students and spreading rumors [sic] about him and he wanted to put a notice up on the MSRC student Facebook page and he wanted my permission to do that. I advised him that I could not give him permission to do this as the FB page was managed by the students and I am not involved with it. I did advise him that I felt this would only create more issues for him and not solve his problem but only highlight the issue with all the accommodation students.

I explained to him that in my role as Accommodation Manager, I could not assist him as there was not an issue at the Mackay Accommodation, but in my role on the Broderick Report Implementation Working Group, I was there to support and assist him in any way that I could. I explained that all parties would be given a voice and supported and that he needed to provide evidence if he wanted to take the matter further.

I discussed some coping strategies with him to go forward. Meeting ended at 2.45pm and [the Applicant] seemed more relaxed. I advised him on local resources available to him and also the JCU support services and contacts.

Tuesday 6 February: I had a meeting with [JCM] about the importance of us both keeping a close eye and ear on what was happening around the MSRC accommodation and especially this student for any signs of exclusion, harassment or behavioral [sic] issues. [JCM] also informed me that she had not heard anything about [the Applicant] on the student grapevine in the whole time in her six years as a medical student.

Monday 5 February I had a meeting with my supervisor Ms Ashleigh Adair about this matter without disclosing the student’s name or any identifying details. I expressed my concerns for the student but respected that he wants me to maintain his confidentially. I felt that I needed to express my concerns with another and to document this meeting.

My concerns:

1) My ‘duty of care’ to the Student and to all accommodation students at MSRC

2) Student could be suffering from mental health issues. Might be a risk to self or others.

3) Student may have a genuine issue with harassment and racial discrimination that has not been addressed.

121. [121]
     In cross-examination, the Applicant’s evidence was to the effect that the report does not reflect the conversation in some respects.^[141] In my view, it is unnecessary to make a finding as to the precise content of the conversation. The information contained in the report formed part of the information subsequently passed on to Professor Murray and the Review Panel. Ms Williams-Fitzgerald had no role to play in the relevant treatment complained of by the Applicant.
122. [122]
     On 26 March 2018, Ms Ware sent Dr O'Connor an email raising concerns about an interaction between the Applicant and Ms Williams-Fitzgerald.^[142] The relevant content of the email is as follows:

…

Ann (Mackay accommodation manager) has had some discussion with [the Applicant] (yr 5) and is concerned about his well-being.

[The Applicant] has discussed a number of things with her including religious issues (between Muslim and Jewish communities) and other people talking about him. He told her that you and Richard Murray had been involved in these issues and that a JCU staff member had also been involved. He asked if she had heard anything, and believed people were talking behind his back. He also asked if he could post something on the JCU student website, but Ann advised him that would not be appropriate. Ann has also had some feedback that [the Applicant] is continually asking other students in the accommodation block what they have heard. (This may be starting to bother/upset some students).

Ann is concerned that [the Applicant] may be covertly indicating that he is being bullied, or had been the subject of religious intolerance. However, he didn’t give any specific examples or events, or ask Ann for any advice or ask her to take any specific action. She asked if he may possibly be imagining these issues, or not dealing appropriately with a mental health issue?

So Teresa I am seeking your advice. Do you feel I, or/and Ann, should arrange a formal discussion with [the Applicant] to ascertain and document the details of his concerns?

Would it be appropriate to advise [the Applicant] to seek professional clinical help?

Is there other support JCU could (or should) be offering?

…

123. [123]
     The Applicant submits (without any cross-reference to the evidence in his written submissions) that:^[143]

     1. with respect to JCM, the Applicant raised ‘both the issue of jews and Egyptians’;
     2. when he spoke with Ms Ware, he ‘raised the issue of racism and ISIS’;
     3. when he spoke with Ms Williams-Fitzgerald, he ‘raised both the issues of racism and bullying’.
124. [124]
     I have extracted at paragraphs [119], [104] and [120] respectively above, the content of the correspondence from those three persons sent to Dr O'Connor (and then forwarded to Professor Murray).
125. [125]
     With respect to JCM, her report does reference the Applicant referring to ‘the Jewish community in particular in his then cohort’. There is no reference to ‘Egyptians’. I note that in his statement (exhibit 5), the Applicant references his interaction with JCM at paragraphs [162]-[175] and does not assert that he made any statement about ‘Egyptians’. In my view, there is nothing in the report of JCM that would have alerted Dr O'Connor or Professor Murray to the fact that the Applicant was raising a complaint (current or otherwise) in relation to the ISIS rumour.
126. [126]
     With respect to Ms Ware, the Applicant’s response to her affidavit (exhibit 8) takes no issue with her reported conversation with the Applicant. In my view, there is no suggestion that the Applicant raised the issue of the ISIS rumour; rather, the content of the file note provided by Ms Ware was consistent with the complaint concerning the Victim of racism rumour.
127. [127]
     With respect to Ms Williams-Fitzgerald, it was reported that the Applicant referred to harassment and rumours which he felt were ‘racial and political in nature’ and reference was made to ‘Jewish students’ and also a JCU staff member. No reference was made to ‘ISIS’ or ‘terrorist’. In my view, on reading the report as a whole, it could not be reasonably concluded that the Applicant was referencing the ISIS rumour; rather, the content of the report was consistent with a complaint about the Victim of racism rumour.
128. [128]
     As noted above, the critical issue is whether or not Dr O'Connor and Professor Murray appreciated or understood that the Applicant was no longer complaining about the ISIS rumour. That is, regardless of whether the Applicant believed that his complaints included complaints about the ISIS rumour, the question is whether the information relayed to Dr O'Connor and Professor Murray apprised them of this fact. I find that it did not.
129. [129]
     On or shortly prior to 3 April 2018, Professor Murray contacted Dr Wohlfahrt expressing concern for the Applicant, and asked Dr Wohlfahrt to speak with him to gain a better understanding of how the Applicant was coping with his studies in Year 5, and with his move to the Mackay campus.^[144]
130. [130]
     Professor Murray sought to have Dr Wohlfahrt meet with the Applicant.^[145] Professor Murray provided Dr Wohlfahrt with an oral explanation and a short written briefing.^[146]
131. [131]
     On or shortly prior to 29 March 2018, Professor Murray spoke with Dr Wohlfahrt, likely by telephone.
132. [132]
     On 29 March 2018, Professor Murray sent an email to Dr Wohlfahrt (the March 2018 email).^[147] The March 2018 email was admitted without objection by the Respondents. That email states, relevantly:

Thanks for the chat.

The plan is that on the basis of the concerns that [the Applicant] has raised with Ann below, you will organise to meet with him to listen, understand his concerns and see what support and assistance you might be able to provide, including letting him know that you will speak further with me. Once you have done that, we will confer and I’ll organise to talk further with [the Applicant] directly. I anticipate that it would be in the second discussion that I would invite [the Applicant] to undertake a psychiatric assessment (but you need not canvass that in your discussion).

The confidential background is that [the Applicant] has some unusual beliefs that first came to attention when he failed 4th year medicine in 2016. In short, these revolve around his concern that others are ‘talking about him’. Specifically, he has an unshakable view that other students (specifically Jewish students) and some staff (‘Jewish staff’) have been talking among one another to the effect that he ([the Applicant]) is a victim of discrimination and bullying as a case that is to be remarked upon, in order to ‘push the anti-racism agenda’. To quote an email from December 2016: “false rumors [sic] about me such as “[the Applicant] has been bullied” or “someone was racist to [the Applicant]” ... has made my life 10 times more stressful and none of these rumours are true”.

These beliefs have led to him confronting specific students with such allegations (resulting in concerned notifications to Teresa from bewildered students). I have met with [the Applicant] on two occasions to better understand his concerns. In both meetings, [the Applicant] was adamant in his belief that he is definitely the subject of such talk. As evidence, he cited has perception that a rural clinical placement supervisor appeared to change in behaviour towards him, evidence to him that the supervisor was ‘told’ about the alleged racist treatment. He reports having heard that others are talking about him, including a named member of the the [sic] Anatomy staff (who reports no knowledge of [the Applicant] at all) and others. When pressed, he admits that he has not actually heard anything directly himself.

When I remarked upon the objective improbability of all this, he agreed to provide the names of the friends who would corroborate these stories and that he would give them permission to speak to me about his views. Only one junior 3rd year medical student was identified. When I spoke to that student in January, he said that he had become a personal friend of [the Applicant] when they met through community circles and the local mosque two years previously. He explained that he had some ‘general awareness’ of there being talk among some students as to why [the Applicant] might have failed a year but that he couldn’t say who might have been the source of that conjecture. He was absolutely clear that he himself did not pass on to [the Applicant] the name of any person (student or staff member) who might have been the source of any commentary. No other source has been identified who could corroborate [the Applicant’s] views.

By the email from Liz below, its clear that [the Applicant’s] beliefs have not changed and are being expressed now in Mackay.

In short, it seems to me that [the Applicant] has a strong and unshakeably [sic] conviction that he is the subject of persecution despite there being no evidence to support the contention (i.e., it is a paranoid delusion). I’ve no sense that his mental state and level of function are otherwise suggestive of schizophrenia. Other than the odd confrontation of fellow students, his behaviour seems to have been stable over the last 12 months or so. I would not think that he poses any serious risk to himself or others at this point. There is potential for disruption were he to confront or make allegations against others though. I’d be interested in your sense of the risks.

Let’s talk once you have met.

133. [133]
     Dr Wohlfahrt gave evidence that he could not recall receiving this email.^[148] I accept this evidence and reject the Applicant’s submission that Dr Wohlfahrt was being dishonest in this regard.^[149]
134. [134]
     Ms Ware and Ms Fitzgerald-Williams had also been in contact with Dr Wohlfahrt to let him know about some reports they had received in regards to the Applicant’s behaviour towards other students.^[150]
135. [135]
     On 3 April 2018, Dr Wohlfahrt sent the Applicant an email in these terms:^[151]

…

May I invite you to come for a conversation sometime soon please.

I would be pleased to see how you are going with your studies and to discuss any concerns or issues you have found in the year so far.

I try to meet with all our students at some time to support their progress.

I am at the school in the afternoons Tuesday, Wednesday and Friday, from 12;30 or so.

Would you look at your rosters and choose a time , perhaps after clinics etc, Let me know of a time and I will reply for confirmation.

136. [136]
     On 4 April 2018, Dr Wohlfahrt, had a discussion with the Applicant and made a handwritten file note of the discussion.^[152] A typed version of the file note was prepared for Dr Wohlfahrt which he states is an accurate account of what transpired during the meeting.^[153] The typed file note states, relevantly:

…

Last Wednesday [the Applicant] (our student) agreed and presented for a conversation. We spoke for 45 minutes. [The Applicant] was calm, throughout. My approach was to introduce myself and to see how [the Applicant] was going with his studies and whether he was settling well into Residence and living in Mackay. He did not need any prompting to commence his explanations relating to his concerns persons are talking about him being bullied. I asked if he knew persons doing this: he commented others (those of Jewish identify) mostly were speaking about [the Applicant] and that he was bullied. I found it difficult to follow a logical thread for his explanation of his concerns. On enquiring if any other persons in the school were aware of these events he mentioned Professor Wronski, several other JCU lecturer staff, yourself, Teresa O'Connor and Liz Ware and now he offered concern Dr B Weich and Dr Frans Pretorius may be aware of these conversations. [RM note: BW and FP are consultant clinical academics in adult internal medicine and surgery in Mackay]. [The Applicant] was concerned this information may bias his assessment in his rotations. [The Applicant] asked if I may check with our local tutors as to any concerns they may have with [the Applicant’s] academic performance, which I did. He seemed mostly concerned if they were aware of the bullying allegations and not his academic performance.

I considered it best to maintain the focus of the conversation on [the Applicant’s] study progress in an attempt to draw him into some reflection about this whole matter. Three significant points I noted:

a) When asked what impact the worry of these thoughts was giving him, [the Applicant] acknowledged it was hard to study and be focussed as the thoughts were constantly in his mind. He denied feeling agitated but was worried over the matter of persons (not identified) who may be talking about him (and that he is bullied!)

b) When asked if he could see a way to resolve these concerns [the Applicant] suggested he would post on Facebook for all to know. Despite questioning the wisdom of this he could not offer a logical rationale for this action. I advised strongly against this plan.

c) When asked on the consequences of these worries and thoughts on his longer term plan of graduating and practicing, [the Applicant] was not able to offer any insights (and I’d confidently say he has not ever thought through this eventuality.

From all this (and I have enclosed statements of observations concerning [the Applicant] given by 2 students living in accommodation and a report by Ann Williams-Fitzgerald, also considered) I would conclude the following:-

[The Applicant] is a significant concern to continue in his present state of mental health, in his undergraduate medical course

He displays fixed irrational thoughts which intrude repeatedly and more frequently on his normal cognisant mind. He is prepared to expose them emphatically and thus indiscriminately by considering placing a post on Facebook. There appears to be a total lack of insight and poor judgement into solution solving.

There is a religious or ideological basis to his thought disorder despite no rational evidence to substantiate his claims. He does not express aggression or suggest causing harm or injury in his accusations. He himself denied any religious bias and is an “atheist.”

Overall, this observed pattern suggests a borderline persecutory delusion with fixed ideologically based throught [sic] beliefs/disturbance.

As circumstances presently exists, [the Applicant] is isolating himself from his colleagues by his behaviour and conversation. He does not display any features of a depressive illness as I can determine during this interview. No extreme behaviours suggesting a hypomania have to date been described.

It has been known for several years [the Applicant] has been demonstrating this thought disturbance, it appears apparent the disturbance is escalating and with this in all probability, the mental health of this student will continue to decline.

In considering a strategy for assisting the health and progress of our student, I support a plan of providing an avenue for [the Applicant] to personally agree to a complete mental health assessment, undertaken by an independent psychiatrist with the aim of confirming a diagnosis and providing the means for [the Applicant] to continue his preparations for his career.

…

137. [137]
     The Applicant did not challenge the accuracy of the statements attributed to the Applicant by Dr Wohlfahrt, either in the Applicant’s statement (exhibit 5) or his response (exhibit 8). I note that the Applicant’s stated concerns were that other people were talking about him being bullied; that he said that he was not being bullied; and that it was the ‘Jewish identities’ that were speaking about him.
138. [138]
     On a date prior to 4 April 2018, a note was provided by an unnamed student in ‘C Wing’ at the JCU Mackay accommodation.^[154] The note stated:

Over the short period of time that I have been living at MSRC in a pod with [the Applicant] I have noticed some strange behaviour on numerous occasions. I cannot complain that any such behaviour has been towards me personally, however as this is a communal living facility I believe it affects all who live here.

Since arriving I have heard [the Applicant] on certain occasions raise his voice when speaking with other residents as he has strong and somewhat extremist views regarding sensitive topics such as Hitler and other religions. I understand every person is entitled to their own opinion, however, I believe that when one lives in shared spaces it is expected you consider other people’s opinions prior to voicing such extreme views.

After such “arguments” (which I have not personally been involved in) I notice he lingers around the common areas as soon as other residents are there as though he is concerned people would be speaking about him. He makes little contribution to conversation after such encounters but watches everyone closely.

I have on occasions also seen him linger around other residents [sic] rooms when he cannot find them in the common room. I am not sure what he is doing when this happens.

I cannot personally put my finger on what it is exactly that makes everyone feel uncomfortable in his presence, however it is noticeable.

I would appreciate if my name were not mentioned to him as I would be genuinely concerned about what he would do. I do not know him well.

I hope this explains some concerns further.

139. [139]
     In his written submissions, the Applicant relies upon the statement contained in the above note that the Applicant had ‘somewhat extremist views’ as evidencing the fact that, first, the ISIS rumour was circulating in Mackay in 2018^[155] or, second, there was a rumour circulating in Mackay that the Applicant was an extremist.^[156] As to the first contention, I find that the assertion by one student that the Applicant had somewhat extremist views does not support the contention that this was evidence that the ISIS rumour was circulating in Mackay. When read in context, the objective meaning of the statement was the writer had formed an opinion that the Applicant had somewhat extremist views based upon statements made by him. It plainly would not have been apparent to Professor Murray or Dr O'Connor that this statement was evidence of the ISIS rumour circulating in Mackay in 2018. As to the second contention, it was not part of the Applicant’s case as presented that there was direct or indirect discrimination or victimisation on the basis of a failure to investigate a separate rumour that the Applicant was an extremist. The contention is immaterial to the claims as formulated by the Applicant. In any event, I find that the single statement by the (unnamed) student required some type of investigation, much less that the failure to do so amounted to discrimination or victimisation (which case was not articulated by the Applicant).^[157] These observations also apply to the submission at paragraph [16a ix] of the Applicant’s written submissions, which concerns a further alleged rumour in late July 2018 that the Applicant had been suspended because he was mentally ill.
140. [140]
     On or about 18 April 2018, Professor Murray had a telephone conversation with the Applicant.^[158] The Applicant was telephoned without notice.^[159]
141. [141]
     On 1 May 2018, Professor Murray emailed the Applicant. Professor Murray states that the email is an accurate account of the conversation on 18 April 2018.^[160] The Respondents have summarised the record of the conversation in subparagraphs [52](a) to (p) of their secondary submissions. The Applicant has responded at paragraph [33] of his written submissions. The email states, relevantly:

…

Thank you for the telephone conversation with me on April 18. I appreciated the opportunity to come back to you on your worries and concerns (which are continuing I’m sorry to hear) and what I have learned from my inquiries. I’m going to set out here my understanding of where we are up to now in some detail. I’d ask you to read it over carefully. I would also like to schedule another meeting to discuss next steps.

To recap, we spoke towards the end of last year about your belief that a group of students and staff are talking about you. Specifically, you are of a strong opinion that other students (specifically Jewish students) and some staff (Jewish staff) have been talking among one another to the effect that you are a victim of racial discrimination and bullying. You believe that this is being remarked upon in order to ‘push the anti-racism agenda’. This view goes back quite a while now - to quote an email from December 2016: “false rumors [sic] about me such as “[the Applicant] has been bullied” or “someone was racist to [the Applicant]” ... has made my life 10 times more stressful and none of these rumours are true”. Last year you confronted at least three students in the medical school last with such allegations and this resulted in concerned students approaching staff. Each denied any knowledge. You also named several staff as people who must be spreading the rumours.

You explained that you have formed your views based upon what your friends have said (you acknowledge that you have not heard anything directly yourself). You also cite as evidence the changes that you have perceived in the behaviour of others towards you, which in your mind is an indication that they must have been told about the racism and bullying talk. I observed that either all this had some basis in fact (which should be possible to corroborate) or that we should consider the possibility that this could be an indication of a problem with your thinking (i.e. paranoid thoughts).

I invited you to provide me with the name of the friends who had relayed these stories. You agreed to do so and, with your permission, we were able to speak to the two students you had nominated (one of whom chose not to identify themselves). I have now told you that while the students acknowledged some general awareness of gossip, both deny having had passed on any specific information to you and certainly not their naming of particular students or staff as being involved in such talk. Similarly, the staff you mentioned have denied any knowledge of even who you are, let alone gossip about you. Unless there are other friends, I have to conclude that at this point I have no objective evidence of the harassment that you are worried about.

You moved to Mackay for 5th year studies this year. Unfortunately your worries have not abated. You report that these thoughts are preoccupying you and interfering in your studies and your life in the residential accommodation. Your particular concern is that the gossip has spread to this new group of student colleagues as well as local staff and clinical tutors. Again, it is the way you perceive that people are behaving towards you that has convinced you of this (you have not heard any reports of talk directly). You’ve taken the step of discussing these concerns with staff (the accommodation officer, the academic advisor and, at his invitation, the head of the Clinical School) as well as the student RA. You have also asked for permission to publish your allegations on a Facebook site, as a strategy to get people to stop talking about you (which you have been told is not a good idea at all).

In our discussion of April 18, we went over all this. You remain convinced of the objective truth of your opinion and you dismissed even a small possibility that this could be a manifestation of a thought disorder. You also accused me of covering up the alleged bullying because of the ‘powerful Jewish people’ in the university. I challenged you about the professionalism of such a statement and I appreciate your apology and clarification.

I invited you to consider seeing a mental health professional, arranged by the University, who might be able to help clarify things. I observed that if nothing else, a professional might be able to help you with strategies to stop the issue from interfering in your life and studies. While you categorically refused that offer, I would invite you to reconsider, as I still believe it would be helpful. I’ve reassured you that my abiding interest is to support you to be well, to help deal with harassment if that is indeed an issue and to do our best to ensure that you successfully complete the medical course.

I will be in touch in relation to a further meeting. If you have any questions in the meantime, please don’t hesitate to contact me further.

142. [142]
     The Applicant’s response (exhibit 13) does not take issue with the accuracy of the recorded conversation. In his written submissions, the Applicant, broadly speaking, seeks to explain his behaviour, maintains that the rumours were occurring, provides a great deal of background information, and asserts that Professor Murray believed the Applicant to be suffering from a mental illness and of deliberately ‘hiding the truth’.
143. [143]
     I accept the 18 April 2018 email as an accurate record of Professor Murray’s conversation with the Applicant.
144. [144]
     I find that the content of the conversation on 18 April 2018 is consistent with Professor Murray’s evidence that he understood the Applicant to be complaining about the Victim of racism rumour.

Events from the suspension to the signing of the Student Agreement

145. [145]
     On or about 14 May 2018, Professor Cocklin ‘authorised’ the suspension of the Applicant’s enrolment on the ‘advice’ of Professor Murray (as Professor Cocklin puts it)^[161] or on the ‘recommendation’ of Professor Murray (as Professor Murray puts it).^[162] Neither Professor Cocklin nor Professor Murray provided details of the advice or recommendation.
146. [146]
     On 16 May 2018, Professor Murray advised the Applicant, by telephone, in a meeting in which the Applicant, Dr Wohlfahrt, and Ms Ware attended in person, that the Applicant was suspended pending the outcome of a review instituted under JCU’s Suitability Policy.^[163] The Applicant was handed a letter (which is convenient to refer to as the ‘Suspension Letter’).^[164]
147. [147]
     The Suspension Letter stated:^[165]

On the basis of concerns about your behaviours and mental health, I have determined that a review will be instituted under JCU’s Review of a Student’s Suitability to Continue a Course Involving Placement policy and procedures (see http://www.jcu.edu.au/policy/allitoz/JCUDEV 005328.html); henceforth referred to as “the Suitability Policy”. The purpose of this review is to assess your suitability to participate or continue in professional or clinical placement or to continue in the Bachelor of Medicine, Bachelor of Surgery (MBBS) course of study.

The matters that have given rise to concern are as follows:

3. 1.
   A state of health (mental health) that may significantly restrict a student’s ability to comply with the occupational requirements of the occupation for which the course of study will academically qualify them, evidenced in your case by the following:

a. You have expressed a belief going back to 2016 that students and staff at JCU have been spreading rumours about you.

b. Specifically, you are of the view that other students (specifically ‘Jewish students’) and some staff (‘Jewish staff’) have been talking among themselves and saying that you are a victim of racism and bullying. To quote an email sent by you on December 16 2016: [students] ‘started false rumours about me such “[the Applicant] has been bullied” or “someone was racist to [the Applicant]” which has made my life 10 times more stressful and none of these rumours are true.’

c. Your interpretation is that those staff and students are campaigning against racism and are quoting your case as an example for this purpose, without your consent.

d. You have confronted at least three students with such allegations and, as a result, the College has received a number of notifications of concern. Students have typically been perplexed by the allegation and report no knowledge of what you are talking about or even who you are.

e. In meetings in late 2017 to discuss your concerns with myself and Dr Teresa O'Connor (CMD Associate Dean Students), you agree that you have no direct personal knowledge of what others are saying. Rather, your beliefs are based on what your friends have told you.

f. I invited you to identify friends who might corroborate that explanation. With your permission, we were able to speak to the two students you had nominated (one of whom chose not to identify themselves). The students acknowledged some general awareness of gossip but both deny having had passed on any specific information to you and definitely not the names of particular students or staff.

g. You have also reported observing changes in the demeanour of others towards you that you feel certain is a sign that they must have been told something about you.

h. Your opinion about this story of persecution is unshakable; you do not accept that there could be any other reasonable explanation for your having these thoughts.

i. You report having difficulty with study and concentration because the troubling thoughts are in your mind. The observation has been made by staff in Mackay that you are socially withdrawn and appear consumed by worry about what people are saying.

j. Having fixed persecutory beliefs and forming irrational conclusions from incidental behaviours may be early manifestations of a serious mental illness. In general, early recognition and management of such holds the best prospect for treatment and recovery.

k. You have declined an offer to have a mental assessment organised by the University and you do not accept that your beliefs could have anything to do with a mental health issue.

3. 2.
   Actions that demonstrate a risk that a student may cause harm to, or disruption of the activities of University staff, students, placement agencies or persons connected with placement agencies.

a. As mentioned, you have confronted students in Townsville with allegations and threats that they are not to talk about you and this has caused distress and upset.

b. More recently in Mackay, you have related your beliefs about persecution and worries about false rumours being spread to fellow students and clinical staff.

c. You have told a number of people recently of a plan to broadcast ‘the truth’ of what is going on using social media (Facebook) as a strategy to stop the others from talking about you, although you have been unable to give a explanation as to how such action would achieve that end.

d. This behaviour is disturbing to others and has the potential to disrupt the activities of University staff, students and placement agencies.

Under clause 3 of the Suitability Policy, these matters have raised serious concerns about the following:

3. 1.
   Your suitability to continue in a professional course of study, namely the Bachelor of Medicine, Bachelor of Surgery;

3. 2.
   Your suitability to undertake prescribed professional or clinical placements; and

3. 3.
   Your state of health that may put the health and safety of other persons at risk and may be incompatible with occupational requirements in the profession of medicine.

In accordance with Clause 4 of the Suitability Policy, I am in the process of nominating a Review Panel Convener who will institute and convene the Review Panel. The Review Panel Convener will be in contact with you in the near future and will furnish you with further particulars of the matters above, together with copies of relevant documentation. You will be invited to submit a written response to these allegations. It is also open to the Review Panel (once convened) to interview you and others in relation to the allegations. In particular, you are referred to clause 6 of the Suitability Policy.

Subject to any subsequent determination pursuant to clause 5.3 of the Suitability Policy, I hereby notify you that the Provost, acting as Deputy Vice-Chancellor Students, has authorised suspension of your enrolment pursuant to clause 5.2 of the Suitability Policy. To avoid doubt, and subject to any future determination in response to any ‘without prejudice’ submission by you (see below), this suspension takes effect immediately upon you being notified and will continue until the completion of the proceedings and processes under the Suitability Policy (including any appeal under clause 7). You are, therefore, excluded from participation or attendance in all clinical and on-campus activities associated with your MBBS studies.

In view of the matters listed above, the suspension is considered prudent and/or necessary having regard to the University’s duty of care to you, its students, staff and placement agencies, and to meet its obligations under relevant work health and safety legislation.

Pursuant to clause 5.3 of the Suitability Policy, if you do not agree with the suspension decision, you are invited to make a ‘without prejudice’ submission within ten (10) working days of receipt of this letter. Any submission should be emailed to me ([email protected]) within the specified period, and this will then be referred to the Deputy Vice Chancellor Students for consideration and final determination whether to uphold, revoke and/or vary this suspension. You will then be notified in writing of this determination.

It is requested that by close of business on xxx [sic], you confirm in an email to me at [email protected]:

a. that you acknowledge receipt of this correspondence;

b. that you acknowledge that you have read and understood the contents of this correspondence (including your suspension from the MBBS course by the Deputy Vice-Chancellor (Academic)).

If you believe that you would like support from a counsellor, please contact JCU’s Counselling Services on 07 4781 4711, Lifeline (13 11 14), or your own treating medical practitioner.

The JCU Student Association can provide you with advice and support in relation to the Suitability proceedings and can be contacted on 07 4781 4400 or Free Call 1800 330 021 (not available from mobile).

148. [148]
     On 16 May 2018, Professor Murray also emailed the Applicant and stated:^[166]

…

Thank you for attending the meeting today. As you know, I I [sic] asked you to come to the Clinical School so that we could have a conversation about the letter that we’ve given you (also attached here).

Once again, I want to to [sic] emphasise that I am committed to seeing you successfully graduate with a medical degree, with whatever support we can provide, in the shortest possible time and in good health.

The core issue for the University is having a better understanding of your belief that you are being persecuted. As I’ve explained, I am obliged to consider the possibility that this might be a disorder of thinking, which can be an early manifestation of mental illness. I accept that you have a sincere view that this is not what is going on. However, given the nature of medical training and our duty you to clinical placement providers and the public, I believe that we have to take active steps to consider that possibility. It is an important matter to get sorted, not least because if indeed there is a mental health concern, you will do much better with early care.

The Review is in no way a punishment. It is analogous to what the Medical Board does when the possibly of impairment is raised regarding a practitioner. As the letter explains, the Chair of the Review Panel will consult with you and others, and the Panel will consider the evidence and make recommendations. This is managed in a respectful and confidential way. No students or clinical supervisors will be aware – only those directly involved.

Again, it is my determination that whatever the outcome, it is our job to get you to successful completion of the medical course. We have experience of working with other students who have faced similar challenges. I am proud of the fact that in almost all such cases, we work through the issues and ultimately those students have graduated and gone on to fulfilling medical careers.

You have indicated that you would like to have the Review move as quickly as possible. To that end – and understanding that a mental health assessment is likely to be recommended by the Panel – you have indicated that you would like to arrange a psychiatric assessment back in Sydney on referral from your own GP. I am amenable to that suggestion. I am also prepared to help with fees if that is an issue for you. I’ve given you an undertaken that a report from your own psychiatrist would then be something that the Panel would consider early.

I know this advice will take a while to absorb. I’m happy to speak with you again, as is Dr Wohlfahrt and Ms Ware. You can also get help and advice from the JCU Student Association and also the University counselling service (details in the letter). Note too that you can appeal the suspension of your enrolment (as explained in the letter). You have given permission for me to speak with your parents if they contact me and I have agreed to do so, with you present.

There are practicalities to consider. As your studies are on hold from this point, we would not expect that you are staying on in the student accommodation for long. Liz Ware will talk further with you about your preferences. We can help with hotel accommodation in Mackay for a few days if you like and also with organising travel back to your family home in Sydney if that is what you would prefer.

Thank you for your professionalism and engagement in the conversation today. Could you please confirm by return email that you have received the letter and have understood its contents.

…

149. [149]
     Professor Murray stated that he considered that the behaviours exhibited by the Applicant and his interactions with other students were not ‘in line with’ JCU’s Student Code of Conduct and the Suitability Policy.^[167] Professor Murray also gave evidence that he concluded that further assessment and support of the Applicant might be required given the Applicant’s persistent persecutory thoughts that appeared to be interfering in his life and studies.^[168]
150. [150]
     A Review Panel was convened. The Review Panel comprised Professor Sen Gupta, Professor McDermott, Dr Harte and Dr Hodge. The Review Panel was provided with a brief of documents by way of a zip file attached to an email sent by Professor Murray to Professor Sen Gupta on 21 May 2018.^[169]
151. [151]
     Professor Sen Gupta sent the Applicant a letter dated 25 May 2018 which provided, amongst other matters:^[170]

…

I refer to a letter dated 16 May 2018 from Professor Richard Murray to you relating to the institution of a review under the University's Review of a Student's Suitability to Continue a Course Involving Placement Policy (‘the Suitability Policy’). The purpose of this review is to assess your suitability to participate or continue in professional or clinical placement and/or to continue in the Bachelor of Medicine/Bachelor of Surgery (MBBS) course of study.

Professor Murray has nominated me as the Review Panel Convener for the purposes of convening and instituting a Review Panel to undertake the process outlined in the Suitability Policy. From now on, all communications relating to this Review should be directed to me ([email protected]).

The Review Panel procedures are outlined in the Suitability Policy (see https://www.jcu.edu.au/policy/learning-and-teaching/review-of-a-students-suitability-to-continue-a-course-involving-placement). It is recommended that you familiarise yourself with this Policy.

Concerns

As advised in Professor Murray’s letter of 16 May 2018, there have been incidents which have raised concerns. Having regard to clause 3 of the Suitability Policy, these incidents have raised concerns about the following:

3. 1.
   Your suitability to continue in a professional course of study, namely the Bachelor of Medicine/Bachelor of Surgery;

3. 2.
   Your suitability to undertake prescribed professional or clinical placements; and

3. 3.
   Your health and well-being that may put the health and safety of other persons at risk and may be incompatible with occupational requirements in the profession of medicine.

The incidents that have given rise to concerns are as follows:

a) You have confronted students with allegations and threats that they are not to talk about you and this has caused distress and upset

b) You have related your beliefs about persecution and worries about rumours being spread to fellow students and clinical staff

c) You have told a number of people of a plan to broadcast ‘the truth’ of what is going on using social media (Facebook)

d) Your behaviour is disturbing to others and has the potential to disrupt the activities of university staff, students and placement agencies.

…

152. [152]
     On 31 May 2018, the Applicant attended upon a psychiatrist of his own choosing (Dr O Stanley) and obtained a report from Dr Stanley dated 4 June 2018.^[171] Dr Stanley did not find that the Applicant was suffering from any mental health condition. Dr Stanley stated, relevantly, that:

     1. he did not find any adverse issues in consultation;
     2. the Applicant was not depressed nor psychotic;
     3. ‘[the Applicant] does see the need for counselling but I believe whilst it is not essential it would be helpful for him to have the support from university counselling’;
     4. the Applicant was not a danger to himself or others.
153. [153]
     On 1 June 2018, the Applicant provided a written submission to Professor Sarah Harding and Professor Cocklin to appeal the decision to suspend him.^[172]
154. [154]
     On 4 June 2018, Professor Cocklin recommended that the Applicant’s suspension remain.^[173]
155. [155]
     On 5 June 2018, Professor Murray emailed Professor Cocklin and stated:^[174]

…

Chris, the report forwarded by [the Applicant] is from a psychiatrist whom he consulted with in a private capacity. It was not organised nor requested by the University.

While it will likely be of use to the Review Panel (one of whose number is a psychiatrist) I do not believe that it will replace a formal independent psychiatric assessment that includes a full briefing on the issues of concern to the University. That will be a matter for the Panel (and I have referred the report on to the Chair, Professor Tarun Sen Gupta.

As Dean, my concern about Dr Stanley’s report is that it appears to be based on a single consultation with no indication that the psychiatrist had access to information other than what was relayed to him by [the Applicant]. The characterisation of [the Applicant] having confronting a few fellow students after being bullied, after which rumours settled down, is not born out by the facts as known to us. The prodromal phase of a psychotic illness can be challenging to characterise without other information.

My recommendation is that the exclusion should apply until the independent psychiatric report is obtained and considered. Under the Policy, you and the Vice Chancellor are able to lift suspension or conditions at any time.

(emphasis added)

156. [156]
     On 20 June 2018 (during the period of his suspension), the Applicant sent a Facebook message to a student by the name of JCG.^[175] The Applicant believed^[176] that JCG was the source of one of the complaints made to JCU.
157. [157]
     The Respondents submit that the message ‘threatened’ JCG with adverse consequences if she did not withdraw her complaint. The Applicant submits that the Facebook message was not threatening; rather, the Applicant was ‘being respectful’ and that the Respondents are ‘exaggerating the message’ and making it look ‘threatening’.^[177] The Applicant cited some extracts from the message in support of his submission.
158. [158]
     In my view, the Tribunal is not required to make a finding as to whether or not the message was ‘threatening’. The relevant fact is that a message in the terms set out below was sent by the Applicant. In light of the parties’ submissions, I consider that the full content of the message should be set out, and I have emphasised some words which were omitted from the Applicant’s written submissions:

You sent an email to JCU a couple of months ago. In that email you made serious allegations about me. You have mentioned that I have extremist views and that I linger around people’s rooms to listen to what they are saying. You moved into MSRC at the end of march. The email was sent in 4 of april. in those 9 days that that you were in MSRC I never even had a proper conversation with you. Whenever I saw you I might have said hi and that was it. I was too busy with my assessments I did not the time to care about spying on people. I have never lingered around common areas to spy on people because I am not that kind of person and I have no reason to spy on someone. I have never talked to you about any religions or Hitler. I do not believe in religion. When I get bored I come to the common areas to speak with people. You also mentioned that i don’t contribute to any conversations. I have talked to you personally many times about medicine, year 6 and placements. How can you even say that I do not make any contribution to any conversations? You have also said that people are uncomfortable around me. If people are uncomfortable, you should have ask them why they are uncomfortable. I have not noticed anyone being uncomfortable around me. You also mentioned that if I found out about your email “i would be genuinely concerned what he would do to me”. You make me look like a mentally ill person. I am not a crazy violent person. I found out that you sent the email I am sending you a message to ask you to explain yourself. I know that you are not a bad person and I know that you might have heard lies about me from other people which made you overreact. JCU has taken your allegations very series [sic] and have organised a panel to investigate your allegations. I had to have a full mental health assessment to prove that I am not mentally ill. Now the panel is investigating the rest of your allegation. I have talked to my solicitor and this matter will go to court. You still have time to correct what you have said and explain your email. If you have been influenced by someone or misinterpreted my behaviour because I am from another culture. Then please send an email to Teresa explain that you misjudged my behaviour and accused me of spying on you and having extreme views and name the people who have influenced you. You have 4 months left to graduate. why would you do this to yourself? I have never had any problems with you. I have never had any hatred towards you. I have always treated you with respect. If you felt so uncomfortable by my presence you should have at least talked to me about it. If this matter goes to court you will be suspended for years and you will be in big trouble for making serious accusation [sic]. YOU will ruin your own career. This is not the time to think about what your friends say. You have to correct your own mistake by sending a second email to Teresa O'conner [sic] and explain that you have made a mistake by accusing me of spying on people and having extreme views and name the people that influenced you to accuse me. Because those people who persuaded you to do this are setting on the sideline watching while your name is involved in an issue that has nothing to do with you. Get yourself out of this mess. Don’t ruin your own career.

159. [159]
     On 4 July 2018, Professor Sen Gupta sent a letter via email to Dr Anna Lazzari, Psychiatrist, requesting that she undertake a psychiatric assessment of the Applicant.^[178]
160. [160]
     On 5 July 2018, the Review Panel members met with the Applicant by Zoom.^[179]
161. [161]
     On or about 18 July 2018, Professor Sen Gupta received the psychiatric report in respect of the Applicant undertaken by Dr Lazzari.^[180] Dr Lazzari stated, amongst other matters:

     1. there was no irritability, perplexity, suspiciousness or paranoia;
     2. the Applicant’s thought stream, form and content were normal;
     3. the Applicant was not delusional about Jewish staff but is experiencing marginalisation in response to his perception of their power and role in the university;
     4. the Applicant holds no obsessional, overvalued ideas nor prodromal symptoms of psychosis;
     5. perception was normal in that there were no hallucinations;
     6. cognition was grossly normal and the Applicant was insightful;
     7. it seemed that the culture in the JCU medical school has contributed to some difficulties for the Applicant;
     8. the Applicant now feels marginalised and is experiencing the Jewish academics at JCU as the dominant culture;
     9. that she (Dr Lazzari) concurred with the opinion of Dr Stanley that the Applicant is not a danger to himself or others nor that he has any mental health problems;
     10. ‘Respectfully, I am concerned (albeit with only [the Applicant’s] history to go by) that specific cultural sensitivities may have been overlooked and he has been the victim in this instance’.
162. [162]
     On 19 July 2018, Ms Ware advised Dr O'Connor, by email, that the previous day JCG had reported that the Applicant ‘had walked past her in the clinical school - touched her back (either with his hand, or with the paper bag he was holding) and said ‘Caught’’.^[181] The Applicant points out that JCG subsequently provided a different version of events to Professor Murray in which she asserted that the Applicant ‘physically pushed me and swore under his breath in front of 3 other medical students’.^[182] The Applicant’s evidence under cross-examination was that he tapped JCG with a piece of paper and said something along the lines of ‘see you in court’.^[183] I consider this to be a further example of a factual dispute between the Applicant and another student which does not require the Tribunal to prefer one version to the other. For present purposes, I consider the material fact to be that, during the period of suspension, it was reported that JCG was approached by the Applicant who made some light physical contact, and made a verbal statement to her along the lines of ‘caught’.
163. [163]
     On 20 July 2018, the Applicant provided a lengthy written response to the Review Panel.^[184] That response stated:

…

2015 - beginning of 2016

1. –When I started medicine, I was the only student of middle eastern descent who came from a Muslim background in my cohort. I looked very middle eastern and had a beard. I was new to North QLD and I was a little shy and quiet. In third year of medicine A group of Coptic students told everyone that I support ISIS and want to go and join ISIS. It came at a time when the news was talking about ISIS and middle east and people were being arrested in different cities in Australia. Everyone was scared of ISIS. Initially I wasn’t aware of what was going on however after sometime I noticed that people avoided me, people would not sit beside me in the lecture room and if I tried to start a conversation with someone they would only say Hello and walk away. After noticing such behaviours for a few weeks I started talking to some of my friends and one of my friends who lived in the same college as the Egyptian students told me that there were some Egyptian Coptic students who were saying to people that I wanted to go and join ISIS. After hearing this I was really shocked as such I confronted a couple of the Egyptian students, I asked them as to why they were talking about me. They denied that they brought up my name, however one of their friends said that it started as a joke because I look very middle eastern and people thought it was true. I also talked to many people in our cohort and told them that this is not true and they should not be worried therefore after a while the issue was settled and I noticed people behaving normally around me.

Second half of 2016

1. –I overheard one of the Jewish students [JCC] who was setting on one of the benches in front of the medical school saying to his friends that there is racism against me and I am being bullied

1. –[JCC] is the same student who had arguments with Muslim students about the issue of Palestine and Israel

• He had arguments with people like [JCD] who is an afghan student from Canada during the Palestine vs Israel debate which was organised by JCU. During the lecture he stood up and called many of the Muslim students anti Semites and stormed out of the lecture room because his views were being challenged. He also had arguments and disagreements with [JCA] who is the president of the Muslims association in JCU (Egyptian Muslim). He did not talk to [JCA] for a very long time.
• He has mentioned multiple times that he lost many of his family members in the holocaust

1. –When I heard him talking about me I approached him and talked to him. He mentioned that he wasn’t talking about me and walked away.

1. –I told a few of my friends that [JCC] was talking about me and saying that he is saying that someone was being racist to me

1. –After a few weeks some of my friends told me that some people think that there is a lot of racism against you. After hearing this I became a little concerned but I thought because issues that happened with Egyptian people might think that there is bullying as such I did not respond.

1. –In the same year one of my CPC supervisor asked me

• “Is everything ok”
• “are you being harassed by someone”

1. –After hearing this I panicked because I thought that the “[the Applicant] is a victim racism and bullying” talk has spread everywhere even amongst staff. I thought to myself that I just dealt with one rumour which completely marginalised and isolated me from the society. I do not want to another rumour that could make it difficult for me to work with people. I thought if a Jewish student is bring this issue up. Jewish staff members might be talking about this as well. They might have passed on this information to the CPC tutor as such I brought up this issue with Teresa O'conner [sic]

1. –At the end of 2016 I Failed year 4.

2017

1. –When I returned back in 2017 to repeat year 4 some of my friends told me that they heard from other people that I failed year 4 because of bullying and racism

1. –At this point I thought this was spreading everywhere and since I did not want to fail another year. I thought if I don’t prevent all this talk about me from spreading everywhere it will distract me from my studies

1. –I thought that I will lose my friends and I will be isolated from the societys

1. –I became anxious and panicked even more

• Partly also because my friends said that I should take this issue seriously and talk to the Dean. Because it could become like the other rumour/talk

1. –I mentioned this issue to Teresa O'conner [sic] and Professor Murray in a meeting

1. –Professor Murray informed me to get 2 of my friends to call him and explain what they have heard. 2 of my friends called professor Murray and its mentioned in the emails.

1. –I also mentioned the names of a few Jewish staff members who has previously talked about the issue of racism and the holocaust in the lecture room. Since I was asked by the CPC tutor about bullying and racism, I thought if Jewish student is spreading this amongst student body and maybe Jewish staff members are spreading it amongst the staff and that is how the CPC tutor found out. I thought I was being used as an example in the fight against racism.

1. –Its very obvious that Jewish people take the issue of racism very seriously. They have in multiple occasions either advocated for anti-racism or talked about it as indicated by the following

• Starr project is an anti-racism campaign which was started by one of the Jewish lecturers Maggie Grant who multiple times talked about the holocaust in the lecture room and mentioned that she lost her family members in Holocaust. This project is still on and being continued by her Husband Ian Wronski who is the chancellor of medicine. His family suffered in the holocaust as mentioned in the newspapers and in the medical school.
• The lecture of Pathophysiology of racism which is delivered every year by another Jewish staff member Zoltan Sarnyai to second year medical students. He is also very passionate about racism.
• Monika Zimanyi is also a Jewish staff member who has mentioned that “racism is not right”, and talked about the holocaust in multiple occasions

1. –At the end of 2017 I wanted to find out more evidence as such I approached [JCB] one of the Jewish students to ask him if he knew anything about this issue.

• I never threatened him with violence
• I do not believe that such issues could be resolved through violence
• I would not have complained to the medical in the first place if I believed in violence.

2018

1. –I moved to Mackay, in the first few weeks I talked to Ann William Fitzgerald who is accommodation manager, Liz Ware who is year coordinator in Mackay and few people in my accommodation including some of residential assistants.

1. –My main purpose was to take precautionary measures to prevent any lies or rumours from spreading from Townsville or Cairns to Mackay. Since I was starting year 5 and it’s a very stressful year. I did not want be distracted from my studies.

1. –I was aware that there were some students in Mackay who are friends with the Jewish students in Cairns and they might be used to spread rumours amongst the student body in Mackay.

Email response:

1. –Medical superintendent

• When I returned from rural rotation Professor Murray asked me about experience in Charters Towars [sic]. As such I informed his that I enjoyed my placement however in the first 2 weeks my supervisor was very helpful however after a while he completely ignored us and we never saw him until our end of rotation meeting.

Student email response email sent on the 4th April 2018 from MSRC.

[JCG] year 6 student

1. –I am assuming she must have taken an acting course in the past

1. –[JCG] moved to [Redacted]

1. –I have never met her before

1. –She mentioned that I tried to listen to what people were saying, if that was the case the 6^th prior to [JCG] would have complained about this issue. I have never tried to spy on people or listen to what they were saying because I do not need to and I am not that kind of person. If I had any issues with someone in my pod I would talk to them.

1. –This email was sent on the 4^th of April. I went on my 2 weeks holiday on the 7^th of March

1. –In those 9 days between 25^th March and 4^th of April which was the 5^th and 6^th weeks of my surgical rotation I was preparing for my assessments. I did not have a patient yet for my end of rotation presentation. I spent most of my time finding a pateint [sic] in the hospital and organising my presentation. I was also preparing for my end of rotation meeting and I was catching up on my studies as I did not want to study during the holidays. I did not have the time to talk to this lady about Hitler or other religions. And I don’t know why would I talk about Hitler or religions with [JCG]. Frankly I did not even know her name.

1. –After I received the emails I did not know which year 6 sent the email however since I had a good relationship with the year 6s prior to [JCG] moving into the accommodation I knew that they can never make up such lies because they are really nice people and they are the sort of people that would talk to me if they were uncomfortable with my behaviour.

1. –So I messaged the year 6s and talked to the year 5s and then came to the conclusion that it could only be [JCG].

1. –When I was investigating this issue, I found out that she lived in [Redacted] with two of the Jewish students for 4 years and she is friends with majority of Jewish students. She believes in evangelical Christianity and she is a supporter of the far right Christian groups and she takes the bible very serious. She has extreme religious views. She believes in every word of the bible and she is really conservative to the point that does not even drink alcohol. She has previously expressed dislike towards minority groups who are not Christian in particular Muslim. She does not want Muslim migration to Australia as she believes that its bad for the Christian majority.

1. –I also found out that she has previously stated that Muslim women are “whores” and they always have anal sex to satisfy their sexual desires as their religion does not allow them to have vaginal sex and she gave examples of Muslim girls that she knew of.

1. –I also found out that She [sic] particularly dislikes male doctors, because she believes that medicine is run by males

1. –I believe that her Jewish friends have used her radical and extremist views to entice her to send an email about me because she thinks that I come from a Muslim country so I must be Muslim and I am a threat to her religion.

1. –All of our house mates usually gather in the kitchen and we talk about the rotation, how our day went and what we learnt. But when it’s the end of rotation everyone comes to the kitchen and spends maximum 15 minutes to cook their meal and goes back to their rooms to prepare for their assessments, assignments, mini OSCEs or mini CEXs. So its unlikely that she could have heard all this information from the year 5s that she had just met in those 9 days after she moved in to [Redacted].

1. –Non of the year 5s and year 6s that I talked to, mentioned anything about any abnormal behaviour

• None of them told me that they thought that I was spying on someone
• None of them thought that I was delusional
• When I mentioned [JCG]’s email to them, none of them agreed with what was in the email

1. –Its very obvious that she was persuaded to write this email to try to prove that I have a delusional disorder.

1. –I am not religious and it’s a misconception that everyone who comes from the middle east is a Muslim.

[JCM] (student residential assistant MSRC) email sent on the 19 February 2018

[JCM] is one of the residential assistants. I talked to [JCM] when I moved to MSRC to prevent the rumours from spreading to Mackay. I did mention that some of the year 6s might talk about me because these rumours existed within their cohort, but I did not mention that I know they are talking about me.

I did not say anything about any students in Mackay and She [sic] never talked to me about any psychologist or mental disorders.

She seemed angry that I was mentioning Jewish students because she is close friends with one of the Jewish students named [JCI]. She has also mentioned that I will take drastic measures against my peers which is a lie. I am not a violent person and I do not believe that anything could be solved with violence in civilised country like Australia.

I talked to [JCM] after 3 weeks when I moved to Mackay sometime around January 22^nd or 23^rd 2018. She wrote the report on the 19 February 2018. I do not know why she waited so long to write the report. But when we talked she never mentioned anything about mental illness. The issue mental illness is something that she might have heard from her Jewish friends.

164. [164]
     On 20 July 2018, immediately following a review of the Applicant’s response, the Review Panel undertook a meeting with the Applicant.^[185]
165. [165]
     On 23 July 2018, Professor Sen Gupta, on behalf of the Review Panel, advised Professor Murray, relevantly:^[186]

…

The Panel’s assessment of [the Applicant] concludes that:

1. 1.
   [The Applicant] is suitable to continue in the Bachelor of Medicine/Bachelor of Surgery course at JCU;

2. 2.
   [The Applicant] is suitable to undertake professional/clinical placements, having regard to the Recommendations outlined below; and

3. 3.
   Ongoing monitoring of [the Applicant’s] health and well-being is required especially in relation to putting other persons’ health and safety at risk and having regard to the occupational requirements in the profession of medicine.

Recommendations:

The Review Panel further recommends, with a view to assisting and supporting [the Applicant] to resume his studies while addressing the issues of concern, that:

• The College of Medicine and Dentistry discusses with [the Applicant] the most appropriate clinical school site for him to resume his studies and facilitate his transition back to full-time study and to the clinical site
• The College of Medicine and Dentistry discusses with [the Applicant] the issue identified by the independent psychiatrist of ‘social marginalisation’ and appropriate ways to deal with this issue, and nominates an appropriate member of staff to provide support and monitor progress
• [The Applicant] seeks personal counselling or other professional advice on ways of managing professional interactions with colleagues, staff and patients that may give rise to interpersonal conflict. Across a long career interpersonal conflict of some form is inevitable for all doctors. The Panel feels that developing more skills around self-management of such conflict would be very beneficial
• The JCU staff member mentioned above should monitor such counselling or advice and determine the frequency of contact. Reports on progress should be provided every two months to the staff member and the Panel by the provider of the counselling or advice
• [The Applicant] undertakes to seek guidance from the JCU staff member mentioned above if he perceives further instances of interpersonal conflict in the course of his MBBS studies prior to making direct contact with the individuals involved
• The Panel be reconstituted in approximately 6 months (i.e., January 2019) to review progress of these recommendations. While the independent psychiatrist concluded there was no evidence of [the Applicant’s] behaviour relating to a mental health illness or syndrome, the Panel feels that rigorous testing of this matter was justified given the behaviour created significant personal difficulties for [the Applicant]. To ensure that these issues do not re-emerge the Panel feels review in six months is in his best interests.

166. [166]
     On 24 July 2018, Professor Cocklin received a letter from Professor Murray enclosing a copy of the report of the Review Panel and Professor Murray recommended that Professor Cocklin now lift the suspension (with immediate effect) subject to the conditions specified in the report.^[187]
167. [167]
     On 24 July 2018, Professor Cocklin provided Professor Murray with a letter confirming that the Applicant’s suspension would be lifted with immediate effect.^[188]
168. [168]
     On 25 July 2018, the Applicant confirmed, via email, with Professor Murray that he agreed with the (proposed) terms of the agreement.^[189]
169. [169]
     On 25 July 2018, Dr O'Connor provided Dr Rasalam with a draft of the Student Agreement said to reflect the conditions imposed by the Review Panel.^[190]
170. [170]
     On 3 August 2018, the Applicant met with Dr Rasalam.^[191] During that meeting, Dr Rasalam went through the Student Agreement with the Applicant and at the conclusion of the meeting, the Applicant signed the Student Agreement.^[192]
171. [171]
     The Student Agreement included the following conditions:

Events subsequent to the signing of the Student Agreement

172. [172]
     On 5 August 2018, the Applicant drafted a Facebook post (the 5 August Facebook post).^[193] This Facebook post was posted but there is a dispute as to whether the Applicant physically posted it. This is addressed below. The content of the 5 August Facebook post was, according to each Review Panel member, part of the conduct or behaviour of the Applicant which they relied upon in subsequently recommending the expulsion of the Applicant.
173. [173]
     The (lengthy) content of the 5 August Facebook post is as follows:

JCU is infested with a culture of white blaming

Many people talked to me about this in the past few weeks so here we go:

In the past few years a lot of lies and rumours have spread about me. Things like

- [the Applicant] has experienced racism because he is a Muslim, a refugee and from Afghanistan and etc

- [the Applicant] failed year 4 because of racism/bullying

- [the Applicant] does not have any friends because of racism/bullying

- And the very latest one [the Applicant] is mentally ill and etc

My name was being used to push a political agenda which is political correctness. These lies were spread by a group of Jewish students. I complained about this to the Dean and dean organised a panel to investigate this issue. This has been going on for years now. When the panel was investigating this issue. The Jewish students and staff members to save themselves and to hide this agenda made this case against me that I am making everything up and I am probably mentally ill. I found out about this when I was in Sydney. I organised a mental health assessment to prove that I am not mentally ill and the report has been sent to JCU which clearly says that I am not mentally ill and this issue is a political issue. I have also shown the report to the people in my pod (C pod)

The Jewish students convinced some students namingly [sic] the stupidest person on earth [JCG] who lives in [Redacted] to send an email saying that I spied on her, I raise my voice and I criticise religion and stupid shit like that. [JCG] the spy detector sent this email 9 days after moving into [Redacted].

[JCG] the brainiac is so intelligent that in those 9 days she managed to completely analyse me and use her noble [sic] prize winning brilliant brain to come up with a diagnosis that I am mentally ill. In those 9 days I probably said hi to [JCG]  twice as I was really busy preparing for my presentation for my surgical rotation. Which clearly says that she was influenced prior to moving into [Redacted] by her Jewish friends. I have talked to the people in my pod and no one in my pod agrees with email and no one my pod thinks that I was spying on them. [JCG] tried her best to blame the year 6 students that lived prior to her in the [Redacted] for the email but failed miserably. By getting [JCG] to send an email about me they wanted to prove that whites are racist. Wrong, [JCG] is not a racist. She is genetically stupid. She does not even have the intelligence to be alive.

People have the right to express their opinion There is freedom of speech in this country. but I take issue when people use my name as an example to convey a political agenda.

- e.g [the Applicant] failed year 4 because of racism and bullying.

The truth is that I missed a lot of compulsory course content because I went to Sydney. I missed 8 weeks of material towards the end of year 4 (2016) hence I did not qualify to complete the exams. I tried to push my exams back but I couldn’t because I had to go back to Sydney.

- Dr. Teresa O'conner [sic] knows this and she has all the documents

- The reason for my behaviour has nothing to do with racism, bullying, refugee hate (I am not even a refugee), Muslim hate (I am not religious) or etc. There were a lot of personal family responsibilities as such I was a little reluctant to socialize.

These people brought up my name and the issues of racism multiple times. To the point that people in the middle eastern community found out and called my parents. Even my supervisors in my rural placement in year 4 found out about this issue.

To those that listen to jewish students and spread these lies:

- Majority of you are in year 5 or 6 of medicine, you have worked so hard to get to this point. Please don’t get involved in this mess. Don’t ruin your own career. If you hear anything about racism, bullying, discrimination or anything related to me. Report it to Teresa O'conner [sic].

- The Jewish students will try to persuade you to talk about me. They always use other people to push their political agendas e.g previously they used people in MSA and many people in year 6 to spread this lie. Therefore there is friction between me and certain someone in MSA.

• They make it seem as if I have problems with everyone but its actually them creating problems for me

- I talked to Dr. Rasalam the head of clinical schools in year 5, he has assured me that if there is sufficient evidence that a student in medicine is bringing up these issues. They will be suspended and even get expelled in accordance to the student suitability act. And he mentioned that he personally expelled 2 students in the past 4 years because of their behaviour in medical school.

- I have said this before that If you are concerned about my conduct, come and talk to me. If you are not satisfied, talk to Teresa O'conner [sic] or call the Dean. If you think I am a threat to you, call the police or crime stoppers. But don’t make up shit like [JCG].

- I will be doing some of my rotations in Townsville and Mackay. Do not pass on any information about me to any doctors. Especially about the issues of racism, bullying or other things that you may have heard. Every staff member in JCU that deals with clinical years is aware of this issue by now including senior staff members e.g Professor Murray (the Dean), Liz Ware and Dr. Wohlfhart.

- Don’t spread rumours from person to person. You will scare everyone and cause problems in the university eventually this will hurt you and your career.

- I am not being bullied, I am not a victim of racism. I am not a victim of hate. Nobody has said anything about me because I come from Afghanistan, or I come from a muslim country (I am not religious btw), or I look waggish and etc. This is a political issue.

- If there are any brave bullies who would like to bully me. I will be in Townsville hospital.

- They try their very best to dishonour me, to put me down, to insult me and persuade people to look down on me through lies because I tried to stop them from using my name to push their political agenda of political correctness. These people attack me with lies from Cairns that’s how brave they are.

- Take a step back and think, have I ever said done anything bad to any of you. You have never heard anything directly from me. Everything that you have heard are talks and rumours spread by others about me which caused some of you to change your behaviour towards me.

- I have not been very social in the past few years therefore I do not know majority of you that well (years 5 and 6). Hence its impossible for anyone in Mackay, Townsville or Cairns to know anything about me or know me so well to make this judgement about me that I am struggling with racism, bullying, hate or mental illness and etc. The people that I know will never say anything derogatory.

I have been living in this country for 13 years now, I practically grew up here. Since living here I have never faced racism or bullying by the people of European descent (white people). There are issues within the middle eastern community because of the war in middle east but there has never been racism toward me from a person of European descent. Falsely accusing people of racism is hatred towards white people. This is white blaming.

The issue of racism was brought up by the Jewish students:

- They want to spread political correctness and anti-racism.

They are a non-European, non-white minority with political power in the west. To protect themselves and preserve their power they sensitise the majority (the whites and the minorities as well) to racism. Once you are sensitised to racism you would never question why they hold high ranking positions in a white majority country. You would never question why they influence western politics, media, economy and get you to fight their wars in middle east. Because you will be afraid that you will be called a racist. So they are basically trying to shut you up. And they used my name on multiple occasions in the past. This completely socially marginalised me and it is the cause of a lot of tension between me and some people in the my [sic] cohort.

(emphasis added)

174. [174]
     On 6 August 2018, JCG emailed Dr O'Connor to complain about the 5 August Facebook post (which post was, on any view, demeaning of her).^[194]
175. [175]
     On 7 August 2018, Professor Murray telephoned JCG. During that telephone call, JCG complained about the 5 August Facebook post and her concerns that her safety might be in danger.^[195] JCG also told Professor Murray that because of the Applicant’s conduct, she had found alternative accommodation when he was on campus.^[196]
176. [176]
     Ultimately, JCG did not wish to proceed with her complaint and Professor Murray did not take any further steps in respect of it.^[197]
177. [177]
     On 13 August 2018, Dr O'Connor received a complaint from JCE about the Applicant.^[198] JCE stated that:

…

Yesterday 12/08/2018 at roughly 12:00pm I was at the JCU Library. I was approached by [the Applicant] who said he wanted to speak. He claimed that he found out that I was spreading rumours that he is a terrorist and affiliated with ISIS. He indicated that I had this conversation with [JCA], one of my colleagues whom I have not spoken to in over 2 years. He also went into detail of conversation I have had privately through FB messenger. He also said the following

• The Jews, especially [JCC] are controlling the university
• A girl in [Redacted] by the name of [JCG] is an extremist Christian who is working with [JCC] against him
• There will be grave consequences if I continue to speak about him. That he will have to deal with me (not exact words but something along these lines) if I did speak about him
• He indicated if I had concerns I should talk to the officials about it
• He claimed to have gotten a letter from ASIO indicating that he was not suspected of any involvement with ISIS or any terrorist group and the he had handed you (Teresa O'Connor) this form.
• He recalled my FB posts previously and claimed that I had “Negative views against muslims”
•  

I would like to indicate that [the Applicant] is someone I have NEVER interacted with or spoken to before. I have never had any placements or personal interactions with him. I was aware who he is as he was in 4th year with me - however this was all that I knew.

His direct personal threats have left me extremely frightened and traumatised by the situation. I am unsure of his intent and this is what frightens me.

I Kindly ask to be informed of any updates to this matter. I will do my absolute best to avoid all contact with [the Applicant]. I would also like my identity to be protected due to fears of the consequences if he knew we had this conversation.

178. [178]
     On 16 August 2018, Dr O'Connor emailed JCE, stating, relevantly:^[199]

…

I have spoken with Professor Murray about your situation. Unfortunately unless you are willing to allow us to discuss this situation with [the Applicant] (i.e. advise him that we have received an account of the matter from you) we cannot use your information. I appreciate that you are concerned about being named but in order to progress this matter, we need to be able to provide the information to the person in order to ask for their account of the situation - this is natural justice.

…

179. [179]
     On 13 August 2018, Professor Murray sent the Applicant an email about the 5 August Facebook post.^[200] In that email, Professor Murray:

     1. advised the Applicant that making such a post would constitute a breach of the Student Agreement and various policies promulgated by JCU including the JCU Student Conduct Policy, the JCU Social Media Policy and the JCU Discrimination, Bullying and Harassment Policy;
     2. scheduled a meeting with the Applicant for 14 August 2018 to discuss the matter;
     3. advised the Applicant that he may have a support person in attendance at the meeting; and
     4. directed the Applicant that he was not to make contact with any JCU student regarding his beliefs and concerns or regarding the content of the Facebook post and that any such contact would be considered a serious breach of the Student Conduct Policy.
180. [180]
     On 13 August 2018, the Applicant responded by email to Professor Murray’s email.^[201] The Applicant stated, relevantly:

…

I am happy to attend the video conference however, I strongly refute these allegations.

1. –I am not part of the the [sic] Mackay social group as i was completely marginalised so i did not have many friends in Mackay, I am only part of the Mackay year 5 group and i have not posted anything in that group since joining that group.

1. –I have not posted that message, I have clarified to Dr. O'Conner [sic] and to Dr. Rasalam that i do not have any intention of approaching someone or contacting someone in Townsville or Mackay.

– Since coming to Townsville, a few people have asked me why did i come back from Mackay and i have told them that i missed a few rotations due to a personal family issue. I have not talked about the panel, or said anything to anyone about people in Mackay.

– I only use messenger to keep in touch with people in my rotation. I have not posted anything on facebook since 2016.

– Why would i sign an agreement and breach the contract 2 days after.

– This post must have been made by someone who wanted to either defend me or vilify me. both are possible. There are cultural conflicts in JCU that the medical school has to deal with. There is tension between different cultural groups and i do not have anything to do with it.

– My facebook page has been de-active for a month now, i just activated my facebook page and took screen shots of what i have in my face book page. The pictures are attached to this email.

181. [181]
     On or about 14 August 2018, a further Facebook post was posted.^[202] This post did not contain a reference to JCG and omitted the first line of the 5 August Facebook post but was otherwise similar in content to the earlier post. The 14 August post was posted on the Applicant’s Facebook page and the Applicant gave evidence that it was pasted into a different window at the same time as the 5 August Facebook post.^[203] The Applicant submits that he copied and pasted the 5 August Facebook post (but without JCG’s name) into his own Facebook post but he did not post the 14 August post.^[204] I consider that it is unnecessary to resolve this factual question.
182. [182]
     On or about 14 August 2018, the Applicant attended a video conference meeting with Professor Murray.^[205] Professor Murray’s evidence is that:

     1. the Applicant admitted that he had authored the text of the 5 August Facebook post but its posting had been a ‘mistake’ because he had left the text unposted on his computer unattended and that a family friend, Tawab, had shared the post;
     2. the Applicant undertook to provide Professor Murray with the contact details of Tawab within 24 hours;
     3. the Applicant spoke of his continuing concern that he was the subject of talk by others, specifically rumours that he was the victim of racial discrimination which the Applicant believed were being deliberately spread by Jewish students and staff;
     4. the Applicant said that the University was not taking appropriate action to address his concerns about those students;
     5. Professor Murray advised the Applicant that if the Applicant had any specific knowledge of any behaviour that he felt constituted harassment or bullying, he should provide that information to him [Professor Murray], and that the Applicant was able to seek advice from an Equity Contact Officer, as per the University’s policy on discrimination, bullying and harassment, and the JCU Students Association;
     6. Professor Murray then asked if the Applicant had any personal contact with students whom the Applicant believed to be in conflict on ‘these matters’ and the Applicant unequivocally denied having done so since he signed the Student Agreement.
183. [183]
     On 17 August 2018, the Applicant sent an email to Professor Murray providing Tawab’s telephone number.^[206] Professor Murray made contact with Tawab who gave a similar account of his visit as recounted by the Applicant and Professor Murray asked that he provide the information as a sworn statement.^[207] There is no evidence that a sworn statement was ever provided.
184. [184]
     On 17 August 2018, Professor Murray sent the Applicant a further email stating, amongst other matters:^[208]

…

On separate but related developments, I am concerned to have received the following reports:

1. Allegation of personal confrontation of a student, [JCE]

I am advised that you approached another medical student, [JCE], in the JCU Library last Sunday August 12 2018 at around 12 midday. It was reported that you confronted him with an allegation that he was spreading rumours that you were a terrorist and affiliated with ISIS. [JCE]’s recount of the incident is:

• You claimed [JCE] made these statements about you to a fellow student.
• [JCE] advises that he has not had contact with the alleged recipient of this information in over two years.
• You elaborated on your concerns about Jews and Jewish students (whom you allegedly said were controlling the University) and also of a student named [JCG] in [Redacted] whom you claimed was working against you at the behest of a Jewish student.
• You warned [JCE] about serious consequences were he to continue to talk about you.
• There was a mention of ASIO and your having being cleared of involvement in terrorism.

[JCE] was left very shaken by this incident.

2. Further Facebook publication

There appears to have been a further Facebook post, apparently made by you, in a similar vein to that published on August 5 2018. The post seeks to warn students not to get involved in rumours allegedly being spread by Jewish students regarding your being a victim of racism. The post mentions that you had spoken to Dr Rasalam and other confidential details that would beknown only to yourself and selected senior staff at JCU.

As a consequence of receiving these reports, I am directing you to:

1. Make no publication on any media whatsoever regarding your views over discrimination, harassment or victimisation at the University

2. Make no contact with [JCE] or any other student regarding any concern that you may have regarding harassment or other grievances, in person or by electronic means. I have similarly instructed [JCE] to have no contact with you.

I invite you to provide me with an explanation as to these reports by 9 am Tuesday 21 August as both matters are in clear breach of your current enrolment conditions along with a number of University Policies and Procedures. I also invite you to provide a Statutory Declaration from Tawab Khelol on the circumstances around the publication of the Facebook post of August 5 2018.

185. [185]
     On 21 August 2018, the Applicant provided an email response to Professor Murray.^[209] The Applicant:

     1. gave his account of the interaction with JCE as follows:

…

I went to the library when I arrived in Townsville to print my rent and bond forms for my new residence. This was before the o week possible on the 1 or 2^nd of August. Daneil Noor [sic] saw me and ask me what am I doing in Townsville, aren’t I supposed to be in Mackay. Since Daneil [sic] is one of the Egyptians who brought up my name and certain issues in the past. I explained the situation to him briefly and told him not ever mention my name as I was in Townsville to start fresh and i don’t want any troubles. I told him If [sic] he feels concerned he should go to Dr. Teresa O'Conner [sic], the police, crime stopper, ASIO or whatever he prefers. It was not a confrontation. It was just him seeing me in Townsville which surprised him. This happened long time before 12^th of August and before I signed the agreement. I did not approach him, he asked me a question and I answered his question. I am not worried about him and I have no issues with him. We just discussed issues that happened in the past.

…

2. continued to assert that the 5 August Facebook post was posted by somebody else and asked for evidence of the subsequent post (being the 14 August 2018 post).^[210]

186. [186]
     Subsequent to receiving the Applicant’s response, Professor Murray emailed JCE on 21 August 2018 seeking confirmation that the encounter with the Applicant did in fact occur on 12 August 2018 and enquiring as to whether JCE may have been in ‘the Library’ on 1 or 2 August [2018].^[211] JCE’s response did not address the question about 12 August 2018 and otherwise stated that he was definitely not in the JCU Library on 2 August but could not say with confidence about 1 August.^[212]
187. [187]
     Also on 21 August 2018, the Applicant had a telephone conversation with Dr Rasalam.^[213]
188. [188]
     On 29 August 2018, the Applicant met with Dr Rasalam.^[214]
189. [189]
     On 17 September 2018, Professor Murray emailed the Applicant advising that JCU was prepared to engage an independent investigator.^[215] In the email, Professor Murray stated, amongst other matters:

I have given some thought to your recent statements referring to lies being spread about you by Jewish students, including that you failed 4th year because of racism and bullying. I note that you have not actually alleged that you have been a victim of bullying, but say that other students have told stories about you being a victim of bullying and harassment due to your heritage.

I also note that you have not lodged any formal complaints about these students under relevant JCU Policies and Procedures (such as the Bullying, Discrimination, Harassment, and Sexual Misconduct Policy).

The issues of Jewish students purportedly spreading lies or false information about you appears to be a common theme in many of your written responses to incidents raised both by myself, and the Review Panel which was convened under the Suitability to Continue in a Course involving Placement. I consider that this issue is of great importance to you and possibly affects your day to day life in terms of you engaging socially with your MBBS peers, within your studies, and in a placement environment.

In this regard, JCU is prepared to engage an Independent Investigator to investigate your claims. The purpose of procuring this investigation is to get to the bottom of your assertions and for the University to consider whether any further action is required in this regard. Please note, the findings of the Investigator may be considered by the Review Panel when it re-convenes at the end of this year. You would also receive a copy of any material provided to the Panel. Further, the investigation material may also be provided to a psychiatrist if further psychiatric reports are requested by the Panel.

…

190. [190]
     On 26 September 2018, Professor Murray again contacted the Applicant about the proposal to appoint an independent investigator.^[216]
191. [191]
     On 2 October 2018, the Applicant again met with Dr Rasalam.^[217]
192. [192]
     On 4 October 2018, the Applicant sent Professor Murray an email, stating:^[218]

This is just a quick response but I will respond to your previous emails in detail after my exams.

I welcome the idea of getting an independent investigator to investigate this issue however i will not be able to help the investigator at this time of year as I am busy with my rotations in year 5. This is a very stressful time for me as i am trying to study 5 rotations (30 weeks of material) in 12 weeks.

The issue should have been investigated before i was suspended.

Currently I am not facing any problems in Townsville and no one has yet approached me and brought up the issues that i discussed with you in the past.

If someone brings up these issues in the future, I will not seek help from the college of medicine because last time when i complained to the college, No private investigator was assigned to investigated this issue instead I was suspended and labelled mentally ill and because of that suspension I am on the brink of failing year 5. If there is any issues [sic] in the future I will not contact the college of medicine instead i will pursue other avenues within or outside the university to resolve this issue.

193. [193]
     In December 2018, the Applicant failed Year 5 of the MBBS course.^[219] The Applicant attributed this to the ‘truncated timeframe’ resulting from the period of his suspension.^[220]
194. [194]
     In January 2019, the Applicant appealed against his final grades.^[221]
195. [195]
     On 14 January 2019, the Review Panel reconvened in accordance with the final recommendation of the recommendations made on 23 July 2018.^[222]
196. [196]
     On 17 January 2019, the Review Panel sought progress reports from Professor Murray and Dr Rasalam.^[223]
197. [197]
     On 17 January 2019, Professor Murray provided a report concerning the Applicant’s conduct since the Review Panel had recommended his return to the campus.^[224] This report stated, amongst other matters (including a detailed timeframe of events):

[The Applicant’s] suspension was lifted on 24 July 2018 as per the recommendation of the Review Panel and with the approval of the Senior DVC (acting as DVC Students). This was conditional on agreement to six conditions specified by the Panel. [The Applicant] confirmed by email his agreement to those conditions on July 25 2018 and signed a Student Agreement on August 3 2018.

Dr Roy Rasalam was the staff member nominated to work with [the Applicant] to provide support and monitor his progress. He met with [the Applicant] on August 3 and reported having spent almost an hour reviewing the conditions, the behavioural expectations of [the Applicant] and study plans.

There have been a number of incidents that have occurred since that I believe represent a breach of the conditions of [the Applicant’s] enrolment, summarised as follows:

3. 1.
   [The Applicant] published serious allegations and criticisms of other JCU medical students on Facebook on August 5, including vilification of a fellow named student [JCG] whom he believed (incorrectly) to have provided information to the Review Panel. [The Applicant’s] account of how this Facebook publication could have happened has varied – from outright denial to partial admission, to an allegation that the post was written by ‘friends’ or written by him and uploaded by a friend. My conclusion is that [the Applicant’s] explanation lacks credibility and that [the Applicant] was the person who authored and posted the Facebook publication.

3. 2.
   [The Applicant] allegedly confronted another student, [JCE] on Sunday August 12 in the JCU Library, with an accusation that he had been spreading rumours. He allegedly warned [JCE] of serious consequences of further talk. [JCE] reported this to College staff the following day (August 13^th) and appeared shaken by the incident. When challenged, [the Applicant’s] explanation was that a chance encounter had occurred 10 days or so earlier than [JCE] had stated and that there had not been a confrontation. On the basis of the detail provided by [JCE] (for instance [the Applicant’s] alleged statement that ‘[JCG]’ from [Redacted] was working against him at the behest of Jewish students, recent detail that would be known only to [the Applicant]) I do not find [the Applicant’s] account credible.

3. 3.
   [The Applicant] appears to have authored a second Facebook post that was again very critical of ‘Jewish students’ and the University on or about August 14 2018. His authorship is highly likely based on the content of screen captured images of the post. The text is substantially similar to [the Applicant’s] previous Facebook post and contains details (for instance the name of Dr Rasalam who is providing confidential support) that only [the Applicant] would reasonably know. [The Applicant] has denied that he has published anything further on his Facebook profile.

Given these conclusions, I am concerned that beyond [the Applicant’s] apparently sincere belief that he has been the subject of gossip and of victimisation by Jewish students and staff, he has demonstrated a propensity to be untruthful and deceptive about his activities, as indicated in his responses to the concerns raised with him. I also conclude that he has ignored further warnings and reminders of his obligations to avoid making contact with students whom he perceives himself to be in conflict. The actions described here would also likely be in breach of Student Conduct, Bullying Harassment and Discrimination and/or Social Media Policies.

…

198. [198]
     On 21 January 2019, Dr Rasalam provided a report to the Review Panel.^[225] Dr Rasalam’s report stated, relevantly:

I am writing in reply to your request (on behalf of the Review Panel) for further information on student [the Applicant]. I was requested by the Review Panel to provide academic support to this student upon his transfer from Mackay campus to Townsville campus in late July 2018.

During the period late July – October 2018, I provided support to this student via email, face to face or phone contact.

Initial Meeting:

• This was the first time I had chatted to [the Applicant] on a 1:1 basis.
• We discussed the implications of the Review Panel findings and recommendations.
• In addition we discussed his remaining rotations for Y5 and how these could be completed
• [The Applicant] appeared to display no insight as to the reason why the Review Panel had been formed or, as to why there had been concerns regarding his statements/behaviour.
• [The Applicant] continually reiterated that certain ethnic groups (Jews) were “against him” and that he had been subject to “persecution”
• I endeavoured to bring him to a positive position of a fresh start and to put everything behind him but, he appeared to have fixed, false (unsubstantiated) beliefs, which he returned to despite our conversation
• He signed a Student Agreement which clearly specified that he should not make further contact with individuals with whom he is in conflict without seeing me prior
• He was provided ample time to peruse, ask questions and then sign the Student Agreement
• We discussed triggers for Review Panel and the importance of ensuring that does not occur in future
• We discussed importance of developing strategies to reduce likelihood of what happened previously
• I suggested he meet with Headspace (2-14 Sporting Drive, Thuringowa Central, Townsville, Queensland 4817 (07) 4799 1799) to meet a Psychological Counsellor to develop positive strategies on a 2-4 weekly basis and the Counsellor to send me a written report as to attendance & progress every 2 months (SEP, NOV). [This was not done].

Subsequent Meetings:

I worked with other sections of the College to develop the following academic plan for [the Applicant] to enhance his integration back into MBBS 5:

1)  GP Rotation:

- Attend all scheduled activities for 3 weeks

- Attend all 6 Tutorials (last 3 during RNH)

- Attend simGP clinic SEP 5 (during RNH)

- All Assessment EXCEPT, NPS modules which will be due at end of RNH

2)  RNH Rotation:

- Attend all scheduled activities for 3 weeks

- Arrange for [the Applicant] to attend last 3 GP Tutorial and simGP clinic during RNH

- All Assessment

3)  CAH Rotation:

- Attend all scheduled activities

- All Assessment

4)  MH Rotation:

- during MBBS 6 CE for 1 st 6 weeks

- All Assessment

5)  EOY Y5 Exams Timing:

- [The Applicant] initially requested for exams to be scheduled for Jan 2019. He was advised he could sit the MBBSS exams at the scheduled dates, apply for deferred exam, or sit the MBBSS exams at end of 2019. He chose to sit the deferred exam (all MH questions were not included in his assessment).

In addition to the above, [the Applicant] was provided with extra time to complete NPS modules and other professionalism portfolio requirements.

When I last met with him in October 2018 prior to the end of year exams, [the Applicant] appeared settled and focused on preparing for his exams. He was completing his on course requirements and on track with summative assessments. I provided him generic advice as to exam preparation and hoped that he would be able to get through the deferred exams, as I had invested a considerable amount of time and effort in providing him with academic assistance.

199. [199]
     On 23 January 2019, the Applicant provided a lengthy written response to the Review Panel.^[226] This stated:

Repose [sic] to Professor Murray’s report:

I fully cooperated with professor Murray and the review panel during investigations process e.g organising a mental health assessment. I was suspended for 11 weeks. I missed 1/3 of year 5 and I had to have 2 mental health assessments to prove to Professor Murray that I am not mentally ill. I had multiple interviews with the review panel and fully cooperated with their requests. After my suspension was lifted and the panel and psychiatrists concluded that I was not mentally ill. I was informed to sign a student agreement that I will not contact any students. I did sign a student agreement and accepted the points mentioned in the student agreement. However professor Murray did not do anything to correct the issues that he created by suspending me from the course. I was left hopeless, helpless and concerned about the talk among students that I am mentally ill. The issues that I am referring to are mentioned below:

1. –Students think that I am mentally ill

1. –Students think that I was suspended due to mental illness because I was away from the university for a long time without any explanation

1. –Professor Murray did not question the validity of the claims that [JCM] or [JCG] made

1. –He did not interview the other people in the C pod where I was living to determine whether [JCM] and [JCG] were telling the truth

• These 2 students made serious allegations which resulted in my suspension and ultimately my failure. I was suspended for 11 weeks and I had 2 mental health assessments. I had multiple interviews with the review panel.
• I fell behind with my studies and a year in my life because of these students.
• Professor Murray has a fixed belief that I am mentally ill and I am responsible for everything, whereas in reality I am the one who has done the right thing and informed the medical school about the issues that existed.

1. –Professor Murray did not interview those students that I named in the statement to the review panel. Instead I had to pay the price, I was the one who had to sign a student agreement and stay quiet while people were thought that I am mentally and I was suspended because I have a mental illness. [JCM] and some other students told students in Mackay and in Cairns (when she was in her rural placement) that I was suspended because I am mentally ill. The people in Cairns passed on this information to the people in Townsville. I deserve to have a say and I deserve to be able to defend myself against these allegations. Now a huge number of people think that I am mentally ill. Professor Murray did not do anything about this issue.

1. –Professor Murray is restricting me from defending myself but he allows the other students to say whatever they want about me.

1. –I believe that professor Murray still believes despite the opinion of 3 different psychiatrists that I am mentally ill which is discriminatory and defamatory.

If I make a mistake I don’t try to hide it. I did write the post but I did not want to post it. I was really angry and I did not want to talk to professor Murray because I felt that I was treated unjustly. The agreement restricted me from defending myself against those who tell everyone in the medical school that I am mentally ill. But despite the injustice I personally apologised for the post to Professor Murray and I even told professor Murray that I am prepared to apologise to any Jewish students and staff members.

Professor Murray also involved the Staff members in Mackay and in Townsville in this procedure e.g Miss Liz Ware and Dr. Wolfhart and Professor Rasalam. However after I had the psychiatrist interview Professor Murray did not inform these staff members that I am not mentally ill. They still think that I have some sort of mental illness and as a result I was suspended.

Also I was not given sufficient additional time to study for year 5 exams, 3 weeks of extra time is not sufficient to cover 11 weeks of content. I fell behind because of the decisions that Professor Murray made which was to suspend me for 11 weeks and then inform me to study for 5 rotations in the last 2 rotations of year 5.

Therefore I was angry and I wrote everything in anger. Because I thought Professor Murray blamed me for everything.

I have mentioned Jewish students in the post. When I say Jewish students, I am referring to 3 Jewish students who brought up my name and issues of bullying/racism. When I say Jewish staff members I refer to Jewish staff members like Zoltan Sarnyai who organised lectures on Pathophysiology of racism (http://www.starproject.me/media-starproject/video/ racism-amp-stress) and Ian Wronski started the Star project who started the star project which is an anti-racism project. (http://www.starproject.me/about-the-starproject/the-star-symbol)

They also talk about the holocaust and racism during the lectures. I only mention Jewish staff members because I was questioned by one of my supervisors about the issue of racism as I mentioned in my response to the panel. So I thought if the Jewish students are talking about racism and bullying then the Jewish staff members must be spreading this to the staff members in JCU. But I have mentioned this previously in my response to the panel that I am not 100% certain that the staff members are involved in this I am just suspecting that they might be based on their views and activism within the university.

I do not have any issues with other Jewish students in the medicine. For example, [JCK] is Jewish and he was in the same cohort as 2 of the Jewish students that mentioned my name. I do not have any issues with [JCK] neither I have any animosity towards him. If I had a fixed belief against all Jews in general I would think that they are all against me as a race. There were only certain Jews who were politically driven that mentioned my name.

In the Facebook post I am referring to the people that I suspect that might be involved I am not referring to their entire race or ethnicity. My post was a warning to prevent certain students from mentioning my name and the issues of racism, bullying and mental illness. As you can see I warn them at the end of the post that there will legal consequences.

Most people in the western world are unaware of middle eastern or Semitic cultures (Arab, Jewish, Muslim or Aramaic cultures). They come from the same roots and they are very similar. In these cultures they have the concept of ingroup loyalty or tribalism. This concept is the strongest amongst Arabs and Jews. It means that if a certain individual in the community is having an issue everyone in the community supports that individual, sometimes even if that individual is wrong. So a similar situation is occurring in here as well. That a couple Jews said something and they were discovered suddenly some other members of their community came to their aid.

What I have written in the post is what is in my responded to the panel in July.

In regards to [JCE], I saw [JCE] before I signed the agreement. HE APPROACHED ME and asked me why did I transfer back to Townsville from Mackay. This is someone that I don’t know. So I was surprised as to how he knew that I was transferred back to Townsville. Since he was one of the Egyptian students that talked about me in the past, I told him about Mackay, and why I was in Townsville. I also told him not to talk about me and if he talks about me in the future I will report him to Dr. O'Conner [sic]. He APPROACHED ME and it was before I signed the student agreement. I also told him that if he has any problems with me he should complain to the Dean, Police, crime stoppers and whatever organisation he wants.

[JCG]:

[JCG] and [JCH] were 2 students in Mackay who had very extreme right wing views. They were the 2 sixth year students that I did not get to know well. When I was inquiring who wrote the email about me I asked most of the year 6s who was living in [Redacted] or who had lived in [Redacted] and they replied and said that they don’t know anything. The person that did not reply and ignored my message was [JCG] (this was before I signed the student agreement). That’s why I became suspicious. She also hid when I went to Mackay to collect my belongings. She saw me in the clinical school when I went to talk to Liza Ware the clinical coordinator in Mackay and quickly walked away. Her behaviour made me very suspicious that she was the one who wrote the email.

Response to Professor Raslam’s report:

1. –In the first meeting he said that he does not know the details of what happened between me and other students however I should try to move on. He said that he has been informed to support me with my studies. I said there was a bit of an issue between me and a group of Coptic and Jewish students which lead to my suspension. I told him that this matter is confidential and I am not going to discuss the details of what happened with you. I did not tell him that “the Jews are against me” or I am being persecuted.

1. –I even told him that he should not mention to other staff members that I was put under review. Because people can speculate anything and cause more problems for me.

1. –He thought that I might have gotten into a physical fight with someone therefore I got suspended so he discussed the triggers for the review panel (e.g getting into a physical fight with someone in the medical school and he give example of a student that got into a physical fight and was suspended)

1. –He mentions in his report that I had no insight as to why the review panel was organised. I was perfectly aware of why the review panel was initiated as I had received the letter from professor Murray and letters from the review panel. I did my research on the process of the review panel and sought help from my lawyer and the JCU students association. They are all evidence that I had complete insight why the review panel was initiated. We never discussed the review panel and I did not ask him any questions about the review panel because I had already sought help from the JCU students association and had sufficient information about the process of the review panel. You can contact the student association for more information.

1. –In my conversations with members of the panel and to Professor Rasalam. I have never mentioned that word “persecution” or that I was being persecuted by anyone. In fact I have never mentioned the word persecution at all in my dealing with the staff members. This word was mentioned initially by Professor Murray in his first letter. I did not want to discuss the issues of my suspension with Dr. Rasalam because he was·unaware of the details of my case. I have made it clear in my response to the review panel that I was informed by some students that my name the issue of bullying was mentioned. I am not obsessed with Jews or them and the issue of racism. I had sufficient reasons to suspect that some of them are behind it. I explained this in detail previously in my response to the panel.

1. –I have never said that people as an ethnic group are against me, I have said that certain Jewish students mentioned my name. I use the words Jewish students because it makes it easier to describe them. Rather than mentioning the full names of multiple people who happen to be Jewish or Coptic. I do not think that a whole ethnicity is against me. It would be absurd and illogical.

1. –I did not have a lengthy conversation with Professor Rasalam for him to say that I had fixed beliefs. In his initial response he mentions that I had fixed beliefs. Fixed belief means that I mentioned someone’s name over and over again on multiple occasions in different times to Professor Rasalam despite complete lack of any evidence. I did not discuss the issues that were presented to the review panel with Dr. Rasalam as he was unaware of the details of my case. Yet when he describes our very first meeting he says that I had a fixed belief. Professor Rasalam came to the conclusion that I had fixed beliefs In only one meeting with me. In that meeting I only said once that there was a bit of tension between me and a number of Jewish and Egyptian students. Telling something only once does not mean that I have fixed beliefs. It only shows that he wrote this response after he was influenced by someone else who persuaded him that I had fixed beliefs. Also, he said that I had false beliefs. He does not know the detail of my case. How can he say that my beliefs are true or false? This shows that someone is putting words in his mouth. He was not given Professor Murray’s letter or other evidence.

1. –Also when Professor Rasalam summarised our initial meeting in an email (refer to email 1) to myself and professor O'Conner [sic] or any subsequent emails he did not mention anything about any persecutions, any fixed beliefs or any ethnic groups. This shows that he has received this information from someone else.

1. –He has made serious allegations. If he really believed that I had a persecutory, fixed belief, He should have mentioned this issue to Professor O'Conner [sic] in that first email. The fact that he did not mention this issue in the first email only indicates that he has been given this information only recently after I failed year 5 to prove that I am mentally ill in a bid to prove that Professor Murray’s claims are right. Keeping in mind that he was appointed by Professor Murray.

1. –All those words that has used in his report are the words that professor Murray has used in his emails and the initial letter to me e.g persecution, fixed beliefs, no insight. He must have had access to Professor Murray’s letter or he has talked with him about me in detail.

1. –No insight, persecution, fixations about an ethnic group. These are the words and phrases that are used to prove that I have persecutory delusional disorder. That i have this “fixation with jews” which is a complete lie. As I said that they were a suspect. I have no fixations with any ethnic groups I based my claims on the evidence that I had. He could have easily used the word information instead of insight, or the word problems instead of persecution but chose to use those words because its related to a mental health condition.

1. –Additionally he highlighted all those words to get the panel members to think that I am mentally ill.

1. –Why was he given any information about me? He was only there to support me with the rotations and to help me with my studies but on the contrary he is trying to be a psychiatrist. He should not get involved in confidential matters.

1. –He mentioned in his report that he organised a counsellor for me. In first meeting he said that he will organise an appointment with a counsellor in headspace. I did not receive any information about any counsellors. After that first meeting he did not mention any counsellors and he never asked me for a report about a counsellor as indicated by his emails to me (I am can present all the copies of Professor Rasalam’s emails) . I was waiting for him to organise an appointment later after my exams but I did not receive any information from him.

1. –I am happy to visit a counsellor if its organised by JCU however I cannot organise a counsellor because I am still a student and I can not afford the fee.

1. –I met Professor Rasalam only for 15 minutes every 3 weeks. In those meetings he would ask me how my studies were going? And if I completed the course requirements. He told me about the different sections in exams in the first meeting and in the last meeting. We did not meet for hours, we only met for 15 minutes every 3 weeks. He only gave me advice on the different sections of the exams and organised my rotations. I told professor Rasalam in the first meeting to schedule my exams on January because I was given 2 rotations to study for 5 rotations.

1. –Professor Rasalam made accusation that not completely true [sic]. He was appointed to organise the rotations for me. But he has done his research and found out why I was suspended which is a clearly breach of confidentiality. He has used words such as fixations and persecution to describe the situation. He does not know the full details of my situation, I can only assume that he has been influenced or he has assumed certain details of my case. If he knows the details of my case then it is a breach of confidentiality, as he was only appointed to organise my rotations. If he does not know the detail of my situation how did he come to the conclusion that I have fixed beliefs and I feel persecuted because I have not given him any information. We never talked about the details of my situation. What evidence does he have?

Note:

It has taken me 2 days to write 3000 word document to defend myself against these allegations. It has wasted 2 days of my studies. Professor Murray recently informed me that he is organising an investigator. I do not want another process to be initiated this year. I want to focus on my studies. I have written this in a rash, as I was provided professor Rasalam’s response yesterday. I apologise for any grammatical mistakes.

One of the students has contacted Professor Murray that some students know that I was suspended for mental health issues. Professor Murray has not acknowledged that he has talked to that student.

200. [200]
     On 24 January 2019, the Applicant met with the Review Panel.^[227] Professor Sen Gupta recorded that, during that attendance, the Applicant ‘accepted responsibility for the post on Facebook and said he had apologised’.
201. [201]
     On 3 March 2019, Professor Bull commenced in the role of Deputy Vice Chancellor of Students at JCU.^[228]
202. [202]
     On 14 March 2019, the University Appeals Panel recommended that, amongst other things, the Applicant be withdrawn from all fifth year subjects without penalty.^[229]
203. [203]
     On 18 March 2019, the Review Panel met and determined that the Applicant should be excluded from JCU.^[230]
204. [204]
     By letter from Professor Sen Gupta to Professor Murray dated 4 April 2019,^[231] it was stated, in part:

…

In terms of the recommendations detailed in my letter to you dated July 23, 2018, the Review Panel noted the following:

• The recommendation regarding the most appropriate clinical school site for [the Applicant] to resume his studies was met. [The Applicant] continued his studies in Townsville;
• The recommendation regarding the management of the issue, identified by the independent psychiatrist, of ‘social marginalisation’ was met. Dr Rasalam was the nominated staff member and he met with [the Applicant] on four occasions during 2018: August 3, August 21 (by telephone), August 29, and October 2, 2018. [The Applicant] reported that he did not feel socially marginalised in Townsville;
• [The Applicant] had not complied with the condition that he seek personal counselling or other professional advice on ways of managing professional interactions with colleagues, staff and patients that may give rise to interpersonal conflict;
• [The Applicant] had, therefore, not provided any progress reports on his personal counselling or other professional advice;
• [The Applicant] advised that he had an appointment to attend Headspace on March 22, 2019 but had not attended any counselling sessions between the date the Review Panel’s recommendations were handed down (July 23, 2018) and the date of the last Review Panel meeting (March 18, 2019);
• There were a number of conditions (under the categories of: management of interpersonal conflict, progress and College policies) contained in the Student Agreement that were not been met by [the Applicant], including but not limited to, [the Applicant’s] unwillingness to continue to see Dr Rasalam, and the fact that [the Applicant] had not attended any appointments with him since October 2, 2018;
• That the Review Panel was entitled to refer to the fact that [the Applicant] failed to comply, fully, with the Student Agreement, however consideration as to the extent and seriousness of the conditions which have not been met, and JCU’s options under that Student Agreement are matters for JCU itself to decide; and
• That JCU’s Code of Conduct (Code) is outside of the purview of the Review Panel itself, and therefore it has not considered the Code during this Review but acknowledges that JCU itself is entitled to do so.

The Review Panel concluded that they remained concerned (as they were in July 2018, when making the recommendations contained in the July 23, 2018 letter to you) about aspects of [the Applicant’s] behaviour and interpersonal communications. He continued to hold fixed views about the opinions and actions of others and did not seem to have shifted in his own opinions. He seemed to display minimal ability to reflect on a situation or how to respond, and continued to display problematic responses to challenging situations.

The Review Panel also noted that discussions with senior colleagues, including Dr Rasalam and Review Panel members, in the meeting of January 24, 2019 did not appear to have been successful in getting [the Applicant] to shift his views on his situation, or reflect on his actions. He did not seem to have been able to access a suitable supervisor or develop a mentor / mentee relationship.

205. [205]
     The Review Panel recommended that (in accordance with clause 6.4.3 of the JCU Suitability Policy) the Applicant be excluded from the MBBS course, the Panel having concluded that the Applicant ‘is neither suitable to continue in the MBBS course at JCU nor suitable to undertake the placements required by that course’.
206. [206]
     On 9 April 2019, Professor Murray sent correspondence to Professor Bull advising her of the Review Panel’s recommendation.^[232]
207. [207]
     Professor Bull had no direct contact with any Review Panel member leading up to the Applicant’s exclusion.^[233] Professor Bull did have conversations regarding the Applicant’s matter with Professor Murray, who told Professor Bull that the decision had to be finalised by her but he made it clear that it was his view that the Applicant should be excluded as outlined in his letter dated 9 April 2019.^[234]
208. [208]
     Professor Bull stated:^[235]

My decision to exclude the Applicant was based on the Review Panel’s recommendation and on the basis that the Applicant had failed to improve his behaviour after the First Review, thereby posing a risk to the health and safety of other JCU students and staff, and potential risks resulting from inappropriate conduct on placements.

209. [209]
     On 26 April 2019, Professor Bull met with the Applicant by videoconference, advising him that he was going to be excluded from JCU.^[236] That day Professor Bull issued a letter to the Applicant confirming that she had advised him that she had accepted the Review Panel’s recommendation and determined that the Applicant should be excluded from JCU.^[237]
210. [210]
     On 21 May 2019, the Applicant appealed the decision to exclude him.^[238]
211. [211]
     On 28 May 2019, Ms Midson advised the Applicant, via letter correspondence, that pursuant to clause 2.3 of the JCU Student Appeal Policy, his appeal had failed.^[239]

Mr Malawaraarachchi’s statement

212. [212]
     Mr Malawaraarachchi stated, amongst various matters, the following:^[240]

…

3. 11.
   In or about June 2016 I began to hear rumours regarding [the Applicant].

3. 12.
   I cannot recall who told me the rumours.

3. 13.
   The rumours that I heard linked [the Applicant] and his family to terrorism. ISIS was a topical subject at the time and [the Applicant’s] terrorist associations were linked to that group.

3. 14.
   I believe the rumours stemmed from a group of 10 to 15 Egyptian students from Sydney, the city [the Applicant] went to school.

3. 15.
   On or about August 2016 [the Applicant] approached me and asked whether I had heard any rumours. I told him I had heard the rumours noted in paragraph 13 of this statement. I also informed him that I didn’t believe the rumours to be widespread. It was clear at the time that [the Applicant] was already aware of the terrorist rumours.

3. 16.
   [The Applicant] looked to be very distressed and upset by the whole situation. He informed me, and I believed, that it was distracting him from his studies and was straining his relationship with other friends.

3. 17.
   He told me that he was worried that people he thought were friends were spreading rumours about him as well. Due to this, he felt alienated from his current friend group.

3. 18.
   He also informed me, and I believed, that he was concerned people would believe these rumours to be true. Due to this, I believe he distanced himself from others (regardless of whether his friends believed the rumours being spread) so it would not affect him and distract him from his studies.

3. 19.
   In addition to the rumours noted in paragraph 13, I also became aware that JCU was conducting investigations into the rumours being spread about [the Applicant]. I was not informed of this by [the Applicant].

Rumours – Mackay

3. 20.
   In 2017 I moved campuses to Mackay. [The Applicant] did not come with me. I believed at the time that [the Applicant] had either dropped back a year (repeated year 4) or had remained in Townsville.

3. 21.
   During the 2017 year I did not hear anything about [the Applicant].

3. 22.
   Between January 2018 and March 2018, I went on placement in Malta. Upon my return to the Mackay Campus in April 2018, I became aware the [sic] [the Applicant] had come to Mackay to commence his fifth year of study of the MBBS dual degree. I knew this because I saw [the Applicant] between his lectures in the clinical school area, which was a common gathering area for medical students.

3. 23.
   I saw [the Applicant] in the clinical school area for two weeks, during which I spoke to him on two occasions. In both conversations, he brought up rumours being spread about him. He asked me whether I had heard any rumours being spread about him in Mackay. I informed him that I had not. At the time he seemed to be very distressed and concerned about these terrorist rumours following him from Townsville being spread in Mackay.

3. 24.
   I did not see [the Applicant] again after our two meetings.

3. 25.
   In my sixth year I tutored fifth-year medical students. In or about May 2018 a fifth-year student who I tutored informed me that [the Applicant] was being bullied in his student accommodation area about the terrorist rumours. The student accommodation area was an area designed to house 6 students. Each student would have their own room, however, the bathrooms, kitchen and living area were all shared.

3. 26.
   The fifth-year student informed me that the students in his accommodation area had asked [the Applicant] whether he was still fit to be in Queensland still fit to be a medical student.

3. 27.
   The five students living in the accommodation area with [the Applicant] had come from the Townsville campus. They were in the 2014 cohort. The rumours regarding [the Applicant] had not only followed him from Townsville but were also spread between cohorts.

3. 28.
   After May 2018, I did not hear about [the Applicant] for the remainder of the year.

…

213. [213]
     This evidence does not refer to any dealings between Mr Malawaraarachchi and any staff member of JCU in relation to the rumours referred to in the statement. In the circumstances, I consider that this evidence does not advance the Applicant’s case.
214. [214]
     I now turn to the various matters for determination in respect of the claim of ‘direct discrimination’.

The alleged treatment of the Applicant

215. [215]
     As noted above, the treatment alleged against the Respondents involves, in summary:

     1. a failure to investigate (or properly investigate) complaints concerning the ISIS rumour and the Victim of racism rumour;
     2. the suspension of the Applicant;
     3. the imposition of conditions pursuant to the Student Agreement; and
     4. the exclusion of the Applicant.
216. [216]
     The circumstances in which such treatment or alleged treatment occurred is set out above under the heading ‘The relevant facts’.
217. [217]
     It is convenient, at this point, to identify between those persons whose conduct I consider is arguably material to the particular instances of treatment identified above. Those persons are Professor Murray, Dr O'Connor, Professor Cocklin, each of the Review Panel members (Professor Sen Gupta, Professor McDermott, Dr Harte, and Dr Hodge) and Professor Bull.
218. [218]
     As to the balance of the Respondents’ witnesses, whilst their evidence is material to the overall circumstances of the treatment and, in some cases, their interaction with the above witnesses may be relevant to an assessment of the conduct of the above witnesses, I consider that the conduct of the following witnesses is not directly relevant to the treatment alleged by the Applicant.

Dr Rasalam

219. [219]
     Dr Rasalam’s uncontradicted evidence was that he was never involved in the decision to suspend the Applicant or the decision-making of the Review Panel to exclude the Applicant from JCU in 2019.^[241] There is also no suggestion that Dr Rasalam had any involvement in the imposition of the conditions of the Student Agreement. Dr Rasalam’s involvement was limited to going through the agreement with the Applicant for the purposes of the Applicant signing it; meeting with the Applicant (as was provided for in the Student Agreement); and providing the report of 21 January 2019. I address the issue of the report below. In my view, any conduct of Dr Rasalam did not form part of the alleged treatment of the Applicant relevant to the claims he makes. Consequently, no adverse finding can be made against JCU on the basis of Dr Rasalam’s conduct, nor can a finding of personal liability be made against Dr Rasalam.
220. [220]
     If, contrary to the view I have formed, such conduct were relevant to the claims made, I find that the Applicant has not established that Dr Rasalam presumed that the Applicant had a mental illness, although Dr Rasalam did have ‘concerns’ for the Applicant’s mental health.^[242] The Applicant did not suggest to Dr Rasalam that his conduct was attributable to the Applicant’s race and religion attributes.

Dr Wohlfahrt

221. [221]
     At all relevant times, Dr Wohlfahrt was the Head of Mackay Clinical School at JCU, on a part-time basis, with his primary job being that of a general practitioner.^[243] As part of his role at JCU, he assisted Year 5 and Year 6 students in the MBBS course.^[244]
222. [222]
     Dr Wohlfahrt’s involvement in the events the subject of this proceeding was of relatively short compass and has been addressed above.
223. [223]
     In my view, Dr Wohlfahrt:

     1. was not requested to, and it was not part of his role to, investigate any matter raised by the Applicant in his meeting with Dr Wohlfahrt;
     2. had no say in the suspension of the Applicant;
     3. had no role in the return of the Applicant from suspension nor in the imposition of the conditions of the Student Agreement;
     4. had no role in the exclusion of the Applicant.
224. [224]
     In the above circumstances, I consider that the conduct of Dr Wohlfahrt is of no direct relevance to the Applicant’s case and no adverse finding can be made against JCU on the basis of Dr Wohlfahrt’s conduct. However, it was evident from the cross-examination of Dr Wohlfahrt that the Applicant sought to establish that Professor Murray presumed that the Applicant had a mental illness based on the interaction between Professor Murray and Dr Wohlfahrt. I deal with this issue below in relation to Professor Murray.

Ms Ware

225. [225]
     In May 2017, Ms Ware commenced the role of Academic Adviser for Year 5 and Year 6 students in the MBBS course and interacted with students on an ‘as needs’ basis. The issues that students contacted her about were varied, ranging from leave requests to issues affecting their progress through their course or ability to study. Ms Ware was based at JCU’s Mackay campus.
226. [226]
     Ms Ware’s interactions with the Applicant and her correspondence with other staff members has been addressed above. In my view, that conduct has not been demonstrated by the Applicant to constitute conduct which formed part of the treatment alleged by the Applicant against the Respondents.
227. [227]
     On the basis of Ms Ware’s evidence, no adverse finding can be made against JCU on the basis of Ms Ware’s conduct.

Ms Midson

228. [228]
     At all relevant times, Ms Midson was the Director of Student Services at JCU and her role included handling student administrative processes.^[245]
229. [229]
     Ms Midson was involved in an administrative, but not final decision making, capacity in relation to the Applicant’s appeal in relation to his failure of Year 5 of the MBBS course in 2018.^[246]
230. [230]
     Ms Midson was also involved with the Applicant’s appeal against his exclusion and Ms Midson made the final decision rejecting the appeal.^[247]
231. [231]
     In my view, the rejection of the Applicant’s appeal against exclusion formed no part of the treatment relied upon by the Applicant in support of his case. This matter was not the subject of complaint in the Applicant’s Statement of Contentions and was not addressed by the Applicant in his written submissions.
232. [232]
     In any event, I accept the following evidence of Ms Midson,^[248] which was effectively unchallenged in cross-examination:

My decision in relation to the Applicant’s enrolment at JCU had nothing to do with his religion, race, refugee status, or mental health status, perceived or otherwise. My decision was based solely upon my conclusion that the Applicant had not established a legitimate basis for his appeal to be upheld.

233. [233]
     On the basis of this evidence, no adverse finding can be made against JCU on the basis of Ms Midson’s conduct.
234. [234]
     I now turn to the issues of whether, at the time of the respective alleged treatment:

     1. the Applicant had an ‘attribute’ (or more than one attribute) identified in s 7 of the ADA;
     2. further or alternatively, the Respondents presumed that the Applicant had an attribute (see 8(c) of the ADA);
     3. further or alternatively, the Applicant had a ‘characteristic’ of the type identified in subsections 8(a) or (b) of the ADA.

The alleged ‘attributes’

235. [235]
     In support of his claim of direct discrimination (and indirect discrimination), the Applicant contends that there was discrimination on the basis of:

     1. the attribute of ‘race’,^[249] specifically Middle Eastern ethnicity or descent;
     2. the attribute of ‘religious belief’ or ‘religious activity’,^[250] specifically that he was a Muslim.
236. [236]
     As I understood the Respondents’ case, there is no contest in relation to either of those attributes (which I shall collectively refer to as ‘the race and religion attributes’). As the case was presented by the Applicant, I consider that there could be no basis to conclude that any treatment of the Applicant by the Respondents was on the basis of one but not the other of those two attributes.
237. [237]
     There is no suggestion that the Applicant was in fact suffering an ‘impairment’ within the meaning of s 7 of the ADA. To the contrary, the Applicant’s case was that he never suffered from a mental illness or mental health condition but that various staff members of JCU presumed that he had a mental illness.

Presumed mental illness?

238. [238]
     The Applicant alleges that a number of members of the JCU staff ‘assumed’ (presumed) that he had a mental illness (the presumed attribute issue).
239. [239]
     This issue was contested and a significant amount of time was spent on the issue in the course of the hearing.
240. [240]
     In cross-examining the Respondents’ witnesses in relation to the presumed attribute issue, the Applicant devoted a deal of attention to descriptions of his behaviour by some of the Respondents’ witnesses which, broadly speaking, were accepted by the witnesses as matters which could be a ‘symptom’ of a mental illness. In fairness to the Applicant, I consider that given the manner in which the case was run, it is also appropriate to consider whether the behaviours identified by the respective witnesses in this context should be classified as a ‘characteristic’ for the purposes of subsections 8(a) and (b) of the ADA. This has been addressed in the Respondents’ secondary submissions.^[251] I will deal with this issue below.

Impairment

241. [241]
     Although the Applicant framed his case on the basis of a presumed ‘mental illness’, I consider that the relevant ‘attribute’ (under s 7 of the ADA) to be considered is the attribute of ‘impairment’.^[252]
242. [242]
     ‘Impairment’ is defined in Schedule 1 to the ADA to mean (in relation to a person), relevantly for present purposes:

…

4.  a condition, illness or disease that impairs a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;

…

whether or not arising from an illness, disease or injury or from a condition subsisting at birth, and includes an impairment that—

7.  presently exists; or

8.  previously existed but no longer exists.

243. [243]
     The Respondents accept,^[253] and I find, that mental illness can be an impairment within the meaning of s 7 of the ADA.

The test for determining whether an attribute is ‘presumed’

244. [244]
     Section 8 of the ADA provides:

Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of—

1.  a characteristic that a person with any of the attributes generally has; or

2.  a characteristic that is often imputed to a person with any of the attributes; or

3.  an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or

4.  an attribute that a person had, even if the person did not have it at the time of the discrimination.

Example of paragraph (c)—

If an employer refused to consider a written application from a person called Viv because it assumed Viv was female, the employer would have discriminated on the basis of an attribute (female sex) that Viv (a male) was presumed to have.

(underlining added)

245. [245]
     Each of the subsections in s 7 of the ADA, and each of subsections 8(a), (b) and (d), of the ADA focuses on the complainant and, in particular, whether a particular attribute or characteristic applies to the complainant. I consider that, in contrast, s 8(c) focuses on the alleged discriminator and, in particular, directs attention to the state of mind of the alleged discriminator. The language of s 8(c) refers, relevantly, to an attribute that a person ‘is presumed to have’ by the person discriminating.
246. [246]
     The ADA does not define the term ‘presume’ or ‘presumed’.
247. [247]
     In the Macquarie Dictionary, the term ‘presume’ is defined to mean, relevantly:

1. to take for granted, assume, or suppose: I presume you’re tired. 2. Law to assume as true in the absence of proof to the contrary. … 5. to take something for granted; suppose. …

248. [248]
     In considering the state of mind required by s 8(c) of the ADA, I have found the following observations of Owen J in Bell Group Ltd (in liq) v Westpac Banking Corp (No 9),^[254] to be of assistance (albeit made in a different context):

[914] It is almost impossible to avoid crepuscular distinctions when attempting to enunciate the differences between knowledge and belief. It is not surprising that the law should find the distinctions troubling. Western philosophy has been grappling with them for millennia. Plato recognised the distinction between opinion and knowledge and, in relation to the latter, between conjecture and belief. For Plato, belief denoted the comparatively firm assent that the ordinary person gives to whatever is directly seen, heard or felt. Aquinas also distinguished between belief and knowledge. But for Aquinas, belief was acceptance of an assertion as true on the testimony of someone else rather than as something that a person could see or what could be proved. Hume defined belief as practical certainty about matters that cannot be justified theoretically. Kant looked upon belief as the subjectively adequate but objectively inadequate acceptance of something as true.

[915] The Macquarie Dictionary (4th ed, 2005) (the Macquarie Dictionary) defines the verb “know” as: “to perceive or understand as fact or truth, or apprehend with clearness and certainty … to be cognisant or aware of, as of some fact, circumstance or occurrence; have information, as about something”. And the noun “knowledge” has a concomitant meaning: “the fact or state of knowing; perception of fact or truth; clear and certain mental apprehension … the state of being cognisant or aware, as of a fact or circumstance”.

[916] Relevantly, knowledge is the result of the cognitive process by which information is gained. To say that we “know” something does not signify that the subject information is infallibly or immutably true. Directors of a company might, for example, “know” that the general ledgers postulate a level of current liabilities of $10. But if (for any reason) the immutable truth is that the level of current liabilities is $11 the “known” would not thereby be converted into an “unknown”.

[917] The noun “belief” is defined in the Macquarie Dictionary as: “an accepted opinion … conviction of the truth or reality of a thing, based upon grounds that are insufficient to afford positive knowledge”. The verb “believe” has a concomitant meaning.

[918] Butterworths Encyclopaedic Australian Legal Dictionary (1997) (the Australian Legal Dictionary) captures a meaning of “belief” (at least in the context of criminal law), defining it as:

An inclination of the mind towards assenting to, rather than rejecting, a proposition, based on facts that are sufficient to create that inclination of the mind in a reasonable person: George v Rockett (1990) 170 CLR 104. Belief may be something less than knowledge, as a person can hold a belief while having a degree of doubt about the matter, but it is more than mere suspicion: R v Raad …

[919] In R v Raad [1983] 3 NSWLR 344 a statute required proof that the accused had disposed of property “knowing” that it was stolen. The court held that “knowing” included an actual belief by the accused that the property was stolen, in the sense that the accused accepted the truth of that belief. Thus, “knowing” did not mean that the person’s mind was conclusive on the issue, but a belief could be sufficient.

[920] The Macquarie Dictionary defines the verb “suspect” as: “to imagine to be guilty, false, counterfeit, undesirable, defective, bad, etc, with insufficient proof or no proof”. The New Shorter Oxford English Dictionary (1993) (the Oxford Dictionary) includes this formulation of the verb “suspect”: “imagine (something) to be possible or likely, have an impression of the existence or presence of; believe tentatively.” Both dictionaries point out that the word “suspect” usually refers to something wrong or considered as undesirable.

[921] In the Australian Legal Dictionary “suspicion” is defined (again in the context of criminal law) as: “A state of conjecture or surmise where proof is lacking; a positive feeling of actual apprehension or mistrust, amounting to a slight opinion, but without sufficient evidence.”

[922] In Raad the Court held that suspicion was insufficient to make a finding of knowledge, and that it was a weaker state of mind than belief. Suspicion is, however, more than mere speculation: Commissioner for Corporate Affairs v Guardian Investments Pty Ltd [1984] VR 1019 at 1025 per Ormiston J.

[923] In McLennan v Campbell [2003] WASCA 145, Pullin J discussed the differences between “suspicion”, “belief” and “knowledge” using other parts of the dictionary definitions that I have quoted, but they are to similar effect. His Honour pointed out, by reference to what was said by the Court of Appeal in Wicks v Marsh [1993] 2 Qd R 583 at 586, that the ordinary meanings of “suspicion” and “belief” and “knowledge” reveal that the words are located on a graded scale of meaning.

249. [249]
     Having regard to the language of s 8(c) of the ADA, the Macquarie dictionary definition of ‘presume’, the Example given in s 8 of the ADA, and the above observations of Owen J, I consider that, on the proper construction of s 8(c):

     1. the presumption contemplated is to be equated with a ‘belief’ by the respondent to a complaint that the complainant has (or previously had) an attribute, in the sense of ‘an accepted opinion … conviction of the truth or reality of a thing, based upon grounds that are insufficient to afford positive knowledge’; and
     2. a mere suspicion that the complainant (here, the Applicant) has an attribute (in the sense of ‘[a] state of conjecture or surmise where proof is lacking; a positive feeling of actual apprehension or mistrust, amounting to a slight opinion, but without sufficient evidence’) is insufficient to satisfy s 8(c).
250. [250]
     In my view, it is not necessary for the purposes of s 8(c) of the ADA that the relevant staff member of JCU presumed that the Applicant had a mental illness of a particular nature or type.^[255] The definition of ‘impairment’ is in broad terms and I consider that the purpose of the ADA would not be furthered by construing s 8(c) to require a presumption of a specified type of mental illness or mental health condition.

The findings in relation to presumed mental illness

251. [251]
     The presumed attribute issue is complicated by:

     1. the fact that the Applicant’s allegation is made against multiple staff members of JCU;
     2. the extended period over which the alleged presumption is to be judged, particularly in the case of Professor Murray.
252. [252]
     The Applicant’s case was that the relevant staff members presumed that the Applicant did have a mental illness. I did not understand the Applicant’s case to involve a contention that there was discrimination on the basis of a presumption that the Applicant previously had, but no longer did have, a mental illness.
253. [253]
     I consider that the most convenient way to address this issue is by reference to each relevant staff member in turn; that is, whether that staff member did presume that the Applicant had a mental illness at the relevant time of the particular treatment in issue. Given the Applicant’s focus on Professor Murray and the Applicant’s contention that Professor Murray influenced the views of other JCU staff members,^[256] I will commence with a consideration of the evidence in relation to Professor Murray.

Professor Murray

254. [254]
     Professor Murray was cross-examined at length. On various occasions the Applicant put to him that he assumed that the Applicant had a mental illness. Professor Murray did not accept this proposition. However, he did accept that the behaviour of the Applicant (as he understood it) raised the ‘possibility’ of an underlying mental illness.^[257]
255. [255]
     Professor Murray also denied telling Dr Wohlfahrt that the Applicant was suffering from a mental health condition.^[258]
256. [256]
     In relation to what was plainly a reference to the report of Dr Lazzari, Professor Murray gave the following evidence:^[259]

… The first report was commissioned by you, the second by the review panel. I later obtained that information, when I saw the full assessment of the review panel, and I accept it for what it was. A consultant psychiatrist provided a conclusion that ruled out a diagnosable mental health condition at that time, based upon what they knew, and I was perfectly comfortable to accept that and accept the view of the review panel in that regard.

257. [257]
     The question is whether I should reject the direct evidence of Professor Murray in light of other evidence he gave in cross-examination, or by inference from the contemporaneous documentation created during the relevant period, or from any other evidence before the Tribunal.
258. [258]
     The first time Professor Murray met the Applicant was in August 2017,^[260] seemingly 10 August 2017.^[261] Professor Murray had received emails from Dr O'Connor on 8 and 9 August 2017.^[262] In paragraph [19] of the Applicant’s written submissions, the Applicant submits that: ‘Initially he [Professor Murray] convinced Dr. O'Conner that the applicant is mentally ill without any evidence.’ The footnote references exhibit “TO- 11” to Dr O'Connor’s affidavit. I infer that the Applicant is basing his submission on the following part of the email:

Last year I spoke with several students about this matter (Coptic Christians) and it seemed to resolve. In June I received the attached email from another student (Muslim) and you and I spoke before about whether this is a persistent delusion that [the Applicant] may have.

259. [259]
     The email referred to is from JCA to Dr O'Connor sent on 23 June 2017 (see paragraph [70] above).
260. [260]
     In my view, a discussion between Professor Murray and Dr O'Connor about ‘whether this is a persistent delusion that [the Applicant] may have’ provides no basis to sustain the submission made. Professor Murray gave evidence that a ‘persistent delusion’ may be a symptom of mental illness but it is not itself a mental illness. Further, the email merely records a discussion about whether the Applicant ‘may have’ a persistent delusion.
261. [261]
     Professor Murray received a further email from Dr O'Connor on 16 August 2017 at 10.17am.^[263] The Applicant relies^[264] upon Professor Murray’s email response to that email (sent on 16 August 2017 at 2.20pm)^[265] as demonstrating that Professor Murray ‘clearly has made assumptions regarding the Applicant’s mental health prior to even meeting the applicant’ by reference to the statements emphasized in the following passage (I have included the additional parts which I consider give context to the statements):

…

I rang and spoke with [the Applicant]. He is in Brisbane visiting family and will not be back until December 10 (exams on 11th and 12th he says). I said that I had been wanting to finish our conversation and that he had undertaken to come back to us with information about the friends who had (allegedly) been relaying to him on information on talk that they’d heard.

I mentioned that you had had a report from a concerned student with whom [the Applicant] had apparently challenged that he had been talking about him. [the Applicant] said that he was OK and not worried and that he was also happy to meet. I emphasised that we were wanting to understand any continuing concerns that might still have and to consider how we might help.

I’ve suggested that we meet when he is in Townsville after his exams (though having looked at my diary, I’ll be in Port Moresby from 10-14).

Still, I could join from there if you are available locally.

He seems composed and unconcerned, sounding similar to our last meeting.

His reported thoughts and behaviour do raise a continuing question as to whether his paranoid thoughts are severe enough to be considered delusional and perhaps a manifestation of early schizophrenia or delusional disorder. He appears to be insightful in other ways and his speech and affect seem pretty normal.

So, with him away from JCU and with family and on the basis that we have what appeared to be reasonably long-standing paranoid thinking in an otherwise high-functioning person, I don’t think we need to take any urgent action. Let’s make an assessment after the exams and our discussion. I would think that a medical assessment would be next and I would like to try to negotiate that with him.

…

(emphasis added)

262. [262]
     In my view, having regard to the reference to ‘raise a continuing question’ and the qualifying word ‘perhaps’, I am not satisfied that it can be inferred that Professor Murray had formed the belief (or did presume) that the Applicant had a mental illness. While Professor Murray plainly considered the possibility of an impairment comprising a mental illness (schizophrenia or delusional disorder), I find that his state of mind amounted to no more than a suspicion of mental illness.
263. [263]
     The Applicant also relies^[266] upon the content of the March 2018 email. The content of the email is set out in paragraph [132] above. The content of the email (including the use of the phrase ‘paranoid delusion’) was not specifically put to Professor Murray in cross-examination. However, the Applicant did cross-examine Professor Murray about passing on the specific symptoms of mental illness to Dr Wohlfahrt and about whether he raised with Professor Sen Gupta that there could be a possibility of a mental health condition. Although lengthy, I consider the whole exchange on this topic to be material:^[267]

[APPLICANT] ... So you have - you - you did raise that question with Professor Gupta, that there could be a possibility of a mental health condition. Did you pass on the specific symptoms of mental illness to Dr Wohlfahrt?

[PROFESSOR MURRAY] Yes, I did, in the sense that the question of whether or not the behaviours that were of concern - confronting other students, the - the preoccupation with the idea that there was a - a - a - talk going on, the absence of evidence or corroboration to that effect, the - the unwillingness to consider that - that perhaps there may be other explanations - may be a delusion, as I think I discussed last time, of - in a technical sense. Not all delusions are - in fact, the minority of delusional beliefs are - are - are not an indication of a diagnosable mental health condition. They’re a - they’re a phenomenon described by medical practitioners, technically.

I can understand that?

And so - and so that’s the basis - if I’m giv [sic] - you’re asking me for a fuller answer, that’s the basis upon which that was raised: ideas of reference, I’m observing behaviours in other people that I think must be because they’ve heard something, and a - and a - and a fixed belief in the absence of - of evidence to support it raise a reasonable prospect of there being an underlying mental health condition. But the fundamental concern…

Professor…

…was behaviours. It’s not - it’s not - it’s not the existence, or otherwise, of a mental health condition.

Yes. Professor, every staff member that you have spoken to who raised the question of mental health, or a - a symptom of mental illness, after they had spoken to you, after they met with you - before you spoke to them, and then they met me, and then they put mental health or symptoms of mental health. And the staff members that you did not speak to - for example, Liz Weir [sic, Ware] - never brought up the issue of mental health. Do you agree that you, in a way, influenced those staff members into thinking that there was an issue of mental health condition?

I disagree. I - I - I think, Member, I’ve given as - as full an answer as I can. I - I’d - if - if - I - I think, as I understand the proposing - the proposition being put, I formed a view, if I’m understanding correctly, that there was - that you had a diagnosed or a diagnosable mental health condition and influenced or persuaded others to that belief, and they then carried on in that way, I - I don’t accept that argument. I - I raised…

Professor…

…

I’ll stop you there, sorry?

Sorry, if I might, Member.

MEMBER: Can you please let the professor finish.

[APPLICANT]: Sorry. Yes. Please continue?

So I raised - I formally - I - I - in meetings with you, precisely, you know, the - the concern as to what a belief - firm and fixed belief in something that could not be otherwise evidenced. I was open with you in our meeting around that in late 2017. I was - I raised the same question with Dr Wohlfahrt, him - himself a practicing medical practitioner, raising the question as to these observed phenomena. He’s an experienced person; he understands what these phenomena mean, as a - as a medical practitioner. He formed his own view. Of course, Dr Sen Gupta, another medical - Professor Sen Gupta, another medical practitioner, again, provided with the information that you, too, were furnished with, the information that - that set out the case, or the reasons for the review, raised the question of a possible mental health disorder as an explanation for behave [sic] - observed behaviours. But - but other - but beyond those instances, I did not share or speculate. And - and in any case, that was a reasonable apprehension as a possible explanation for behaviours. The behaviours are the issue of concern, not the - the explanation for why there might be these behaviours, those beh [sic] - that - that - one of which may be that there was an underlying mental health condition from which you may benefit from - from - from support and assistance. That was the relevance. That’s the only relevance. I don’t accept that I was the source of speculation and that I influenced others to share my opinion.

(emphasis added)

264. [264]
     Having regard to the content of the March 2018 email as a whole, and the evidence of Professor Murray given in the above passage, I find that, as at 29 March 2018:

     1. Professor Murray held the view that the Applicant had a delusional belief that he (the Applicant) was the subject of persecution relating to the Applicant’s ‘unshakeable view’ that other students (specifically Jewish students) and some staff (referred to as the ‘Jewish staff’) had been talking amongst one another to the effect that the Applicant was a victim of discrimination and bullying ‘as a case that is to be remarked upon, in order to ‘push the anti-racism agenda’’;
     2. Professor Murray’s view raised ‘a reasonable prospect’ (which I would characterise as a ‘suspicion’) of there being an underlying mental health condition;
     3. however, Professor Murray had not formed a belief (that is, he did not ‘presume’) that the Applicant did have a diagnosed or diagnosable mental health condition (or mental illness).
265. [265]
     The Applicant also relies on Dr Wohlfahrt’s statement in the 4 April 2018 email that ‘for several years’ the Applicant had been demonstrating a ‘thought disturbance’. The Applicant submits that Professor Murray must have told Dr Wohlfahrt this.^[268] In cross-examination, the Applicant put to Dr Wohlfahrt this sentence: ‘Overall, this observed pattern suggests a borderline persecutory delusion with fixed ideologically based thought believe’ and put it that Dr Wohlfahrt got this from Professor Murray. Dr Wohlfahrt denied this.^[269] I accept Dr Wohlfahrt’s evidence. In any event, even if that had been relayed by Professor Murray, I am not satisfied that it would justify drawing an inference that Professor Murray presumed that the Applicant did have a mental illness.
266. [266]
     The Applicant also relies upon the content of paragraph [75] of Professor Murray’s affidavit and the Suspension Letter. Paragraph [75] forms part of Professor Murray’s stated reasons for recommending to Professor Cocklin that the Applicant be suspended. Professor Murray states:^[270]

3. 73.
   I had serious concerns about the Applicant’s complaints. I took reasonable steps to investigate them; however, I was unable to ascertain any evidence to enable me to progress the matter. At no time did my connections with students or staff of Jewish background impact my decisions in this regard. I do not have any such connections.

3. 74.
   The placement agreements we have with placement providers are predicated on us only allowing students to participate in placements if it is safe for them to do so and if they are suitable to undertake placement. A placement is a learning environment and a workplace. If a student engaged in bullying or inappropriate behaviour, it could give rise to difficulties between JCU and the placement provider. For that reason we take care to ensure students are suitable to undertake placements in accordance with those agreements.

3. 75.
   I concluded that further assessment and support might be required, given the Applicant’s persistent persecutory thoughts appeared to be interfering in his life and studies.

3. 76.
   I also considered the behaviours exhibited by the Applicant and his interactions with other students to not be in line with the JCU Student Code of Conduct (Student Code of Conduct) and the Review of a Student’s Suitability to Continue a Course Involving Placement (Suitability Policy).

267. [267]
     I infer from the content of paragraph [75] of his affidavit that, as at 16 May 2018, Professor Murray believed that the Applicant had ‘persistent persecutory thoughts’. However, when regard is had to the whole of Professor Murray’s evidence at the hearing, I find that this does not equate with a belief (presumption) that the Applicant then had a mental illness.
268. [268]
     I have set out the content of the Suspension Letter at paragraph [147] above.
269. [269]
     Professor Murray expressed a ‘concern’ as to the state of the Applicant’s ‘mental health’. Professor Murray also said ‘Having fixed persecutory beliefs and forming irrational conclusions from incidental behaviours may be early manifestations of a serious mental illness’. Given the language of ‘concern’ and ‘may be’, I am not satisfied that Professor Murray’s direct evidence should be rejected on the basis of the content of the Suspension Letter.
270. [270]
     I also note the content of Professor Murray’s email to the Applicant sent on 16 May 2018 which is extracted at paragraph [148] above.^[271]
271. [271]
     Whilst I consider it clear from the 16 May 2018 email that Professor Murray had concluded that the Applicant believed he was being persecuted, it is also made clear that Professor Murray considered the ‘possibility’ that this ‘might be’ a disorder of thinking, which can be an early manifestation of mental illness (and Professor Murray later repeated the term ‘possibility’). I find that the content of this email is consistent with Professor Murray’s evidence at the hearing that he considered a mental illness to be a possibility rather than having presumed that this was in fact the case.
272. [272]
     The Applicant also submits^[272] that Professor Murray ‘influenced’ Professor Cocklin and asked him not to accept the Applicant’s appeal against suspension and to ‘force’ the Applicant to remain suspended awaiting the mental health assessment (by Dr Lazzari).
273. [273]
     On 7 June 2018, Professor Murray sent an email to Professor Cocklin at 3.44pm in the following terms:^[273]

…

[The Applicant] has been in touch. I’ve advised that he can expect a response from either yourself or the VC (given the delegation in the Policy) but have noted that he did only send his psychiatrist’s report through on Tuesday.

To reiterate my advice to you: his report was not sought by the Review Panel and nor (would it seem) to have been formulated with full knowledge of the context of behaviours of concern. Therefore I would recommend maintaining the suspension until the Review Panel is able to consider the independent psychiatric assessment.

I will leave the response to you but do let me know if you need anything further.

…

274. [274]
     This recommendation was accepted by Professor Cocklin and the Applicant was advised by Professor Murray that the suspension would stand until such time as the planned independent psychiatric evaluation was considered.^[274]
275. [275]
     It is evident from the content of Professor Murray’s email that he was not prepared to accept the opinion expressed by Dr Stanley on the basis that Professor Murray considered that Dr Stanley did not have complete information about the behaviour of the Applicant which Professor Murray considered to be of concern. I am satisfied that, at this time, Professor Murray still considered it a possibility that the Applicant was suffering from a mental illness. Given the concerns about the history upon which Dr Stanley relied, I do not infer that Professor Murray then believed (presumed) that the Applicant did suffer from a mental illness.
276. [276]
     As noted above, Professor Murray gave evidence that he accepted the opinion expressed by Dr Lazzari. I accept Professor Murray’s evidence in this regard. In cross-examination, Professor Murray was asked about what he thought was causing the Applicant’s behaviour following receipt of Dr Lazzari’s report. Professor Murray’s response was as follows:^[275]

Professor, you mentioned that you are not - no longer concerned about my mental - my mental health after receiving the second psychiatrist’s report. You’re content with that. What do you think was causing my behaviour, if - if it wasn’t a mental health condition?

So - so behaviour is behaviour. The - the act of - of repeatedly confronting students and making threats is - is a behavioural concern. The behaviours, in approaching multiple people at a clinical school site with advice that you were intending to make a social media post published to stop people talking about you, is beha [sic] - is a behaviour of concern that would likely be disruptive and unsettling. And so those are - those are just behaviours. Ultimately, as things evolved, when the review panel obtained the advice that they got, and - and events unfolded, to that list of behaviours was added additional things: the - the threats made to the student, [JCG], the confrontation - con - further confrontations with other students, a - a Facebook post, a second Facebook post. These are all behaviours - disruptive behaviours of concern, that - involving threats and vilification.

No

And - and in the absence of a mental health explanation for that - for that, these must simply go to the character and nature of the person who’s - who’s responsible for the behaviours.

277. [277]
     The Applicant sought to establish that Professor Murray had assumed the Applicant had a mental illness by reference to the ‘influence’ that Professor Murray allegedly had on other staff members in this context.
278. [278]
     I have addressed Professor Murray’s interactions with Dr Wohlfahrt and with Professor Cocklin.
279. [279]
     In relation to events after the receipt of Dr Lazzari’s report, the Applicant also submits that Professor Murray convinced Dr Rasalam to write ‘false reports and make false allegations’ against the Applicant.^[276] I find that there is no substance in this allegation.
280. [280]
     The reference to reports appears to be a single report written by Dr Rasalam on 21 January 2019 referred to at paragraph [198] above.
281. [281]
     The Applicant cross-examined Dr Rasalam repeatedly about the basis upon which he made the observations set out in that report. Dr Rasalam consistently stated that the content of the report was based on his (Dr Rasalam’s) ‘observations’ of the Applicant during the meeting (including statements made by the Applicant at that meeting).^[277] Dr Rasalam also consistently denied the contention put to him by the Applicant that the information contained in that report, specifically the references to ‘no insight’, ‘persecution’ and ‘delusion’, was passed onto Dr Rasalam by Professor Murray (or that Professor Murray had mentioned something in relation to the Applicant’s mental health).^[278] I find that there was no objective evidence to contradict the evidence of Dr Rasalam. I accept the evidence of Dr Rasalam. For completeness, I find that the Applicant has not established that the observations of Dr Rasalam were influenced at all by the Applicant’s race and religion attributes.
282. [282]
     In summary, I find that Professor Murray harboured a suspicion that the Applicant was suffering from a mental illness until such time as Professor Murray was in receipt of the report of Dr Lazzari. However, I am not satisfied that Professor Murray’s state of mind amounted to a presumption that the Applicant did have a mental illness. Further, I am satisfied that following receipt of Dr Lazarus report, Professor Murray’s suspicion was allayed and he accepted that the Applicant was not suffering from a mental illness. In short, I find that at no material time did Professor Murray presume that the Applicant suffered from a mental illness or mental health condition, and s 8(c) of the ADA has no application insofar as Professor Murray is concerned.

Professor Sen Gupta

283. [283]
     In relation to the recommendations made in relation to the Applicant’s return from suspension, Professor Sen Gupta stated in his affidavit:^[279]

…

3. 61.
   I reviewed all the documentary evidence that had been provided for consideration. From reviewing the Panel Brief and the Applicant Response to First Panel Review, I considered the report of the Applicant confronting another student to be concerning. I accepted that the Applicant did not have a diagnosed psychiatric condition, as reported in both psychiatric reports. I still held concerns relating to the Applicant’s ability to manage his interpersonal relations with others. As such, I thought conditions should be placed on his return to his placement and the MBBS course to manage his behaviour, as well as a requirement for a reconvening of the Review Panel to ensure the Applicant was complying with the conditions set.

3. 62.
   Following discussions with the other Review Panel members, I drafted the recommendations to be made to Professor Murray. I circulated these recommendations to the other Review Panel members. The other members indicated that they agreed with the recommendations and approved that the report be issued.

…

3. 65.
   In coming to the Recommendations of First Panel Review, the Review Panel discussed whether it was reasonable for the Applicant to continue the MBBS course, but with close monitoring of his behaviour. At the point of making these recommendations, I had concerns regarding the behaviour of the Applicant, however, it was not at the point that suspension was the only option. The other members of the Review Panel expressed the same view.

3. 66.
   The recommendation to attend counselling was not based on concerns relating to the Applicant’s mental health. The recommendation was made in order to assist the Applicant in how he manages his interactions with other students and staff at JCU.

…

284. [284]
     In relation to the recommendation of the Review Panel that the Applicant be excluded, Professor Sen Gupta stated that he was concerned about the nature of the Facebook post on 5 August 2018, specifically that the post was critical of a student stating that they were ‘genetically stupid’ and did ‘not even have intelligence to be alive.’ Professor Sen Gupta did not consider that the Applicant could work with others if he used that type of language to describe other students in a public post.^[280]
285. [285]
     Professor Sen Gupta also stated:^[281]

…

3. 110.
   The Applicant’s behaviour led to his initial suspension and eventual exclusion. These decisions are not decisions taken lightly and are based on substantial evidence. The behaviour of the Applicant reported in the Murray Report led me to infer there was a pattern that was unchanged and indicated an inability to comply with the conditions of the Student Agreement. Despite the support provided to the Applicant, he was unable to change his patterns of behaviour.

3. 111.
   These concerns generate a timeline of misconduct. I considered the documentation and determined there was an ongoing pattern of concerning behaviour in breach of the Suitability Policy, which showed an inability on the part of the Applicant to respond to such concerns or change his behaviour.

3. 112.
   During discussions with the Review Panel, I recall that Dr Hodge raised the point that this behaviour would not be tolerated in the workplace. The other two panel members and I agreed with Dr Hodge. In terms of our preparation of students as professionals, we expect them to develop their moral compass and professional standards as witnessed by their behaviour and interactions with others.

3. 113.
   The Applicant’s religion, refugee status or any perceived or actual mental illness did not play any role in my thought process or considerations. My considerations extended only to concerns about the Applicant’s behaviour and interactions with other students, which were in breach of the Student Agreement and indicated the Applicant’s inability to interact with others in an appropriate manner.

286. [286]
     In cross-examination, Professor Sen Gupta gave evidence that, as at July 2018 and January 2019, the view of the Review Panel was that (notwithstanding the receipt of the two psychiatrists’ reports) the ‘possibility’ of a mental health condition existed and that ‘it had not been excluded 100%’.^[282] Professor Sen Gupta also said there was a ‘residual concern’ that there ‘may have been’ a mental health condition.^[283] However, Professor Sen Gupta also said that the Review Panel did not form a view that the Applicant had a diagnosed mental health condition.^[284] To the extent that Professor Sen Gupta stated that the Review Panel did not form a view that the Applicant had a diagnosed mental health condition, I proceed on the basis that this reflects his state of mind, but not the state of mind of each of the other panel members (whose individual state of mind is addressed below).
287. [287]
     I accept the evidence of Professor Sen Gupta. He answered questions directly and his evidence was not contradicted by any contemporaneous document.
288. [288]
     Having regard to Professor Sen Gupta’s evidence, I find that he did not presume that the Applicant had a mental illness or mental health condition either at the time of the Review Panel’s recommendations in relation to the Applicant’s return from suspension, or at the time of the Review Panel’s recommendation that the Applicant be excluded.

Professor McDermott

289. [289]
     In relation to the recommendations made in relation to the Applicant’s return from suspension, Professor McDermott stated:^[285]

Those recommendations formed the basis of a Student Agreement between JCU and the Applicant.

290. [290]
     In relation to the recommendation to exclude the Applicant, Professor McDermott stated:^[286]

3. 43.
   For my part, I was most concerned about the Applicant’s Facebook posts, particularly to the reference of a student lacking “the intelligence to be alive”. Such a comment is entirely inappropriate. Saying another student is not worthy of living is concerning behaviour. I took that comment seriously. The Review Panel also considered the Applicant’s confrontations with students since his return to study, specifically [JCE]. It seemed evident to the Review Panel, that the Applicant had not seriously considered the Student Agreement, as these actions were in clear contravention of the terms. I considered the Applicant’s apology in relation to the Facebook post to be insufficient and only provided when his conduct had been raised by Professor Murray. Overall, it seemed clear to the Review Panel, that the Applicant failed to comply with the requirements of the Student Agreement.

…

3. 46.
   It was apparent to me that the Applicant’s assertions that people were talking about him, may be true. It would be difficult for students not to talk about the Applicant given his confrontations with other students, and later, the Facebook posts.

3. 47.
   It was not the Applicant’s complaint of people talking about him that was of concern to me. My concerns were with the Applicant’s actions and method of dealing with others. In my experience, most people who have been the subject of a corrective experience such as a review panel, return to the course with appropriately adjusted behaviours.

3. 48.
   However, shortly after returning to JCU the Applicant made 2 Facebook posts, in breach of the Student Agreement. That suggested to me that the Applicant was going to continue to engage in the same types of behaviours which troubled me.

3. 49.
   The Applicant’s religion and/or his status as a refugee had nothing to do with my decision to recommend that he be excluded. I recommended that he be excluded because I thought that his persistent pattern of behaviour towards other students was inappropriate and that his inability to comply with the Student Agreement meant that it was likely that he was going to repeat the problematic behaviour.

291. [291]
     Professor McDermott was cross-examined in relation to the condition of the Student Agreement referencing ‘medical and psychological support’ and whether Professor McDermott was concerned about the Applicant’s mental health. The relevant exchange is as follows:^[287]

[THE APPLICANT]: And in the second last paragraph, in the section what says Progress, after the first sentence and the second sentence, it said:

I will undertake to seek appropriate medical and psychological support to learn strategies to manage exam stress - exam anxiety …

Yes.

Why was that necessary to include in the agreement?

I assumed because the panel thought that that would be generally beneficial to you.

Were you concerned with - about my mental health and you included that as part of the agreement?

I was - I would rather restate that that we were concerned about your wellbeing - your emotional wellbeing, because we have already said - which were two psychiatrists that this is not an issue of mental health.

Yes, but the agreement specifically mentions:

…psychological support to learn strategies to manage exam stress.

I have never complained about exam stress

MEMBER: Anxiety.

[THE APPLICANT]: But this is included in the agreement, so is that because I - you were concerned about my mental health?

No, as I’ve just stated, your mental health was not an issue, but that does not mean with - people go to psychologists who don’t’ have mental illness. People often go to psychologists for assistance with day-to-day living including anxiety, anger management, social skills and a range of factors: that doesn’t imply a mental illness.

So would you say that that sentence was unnecessary to include in the agreement?

I would say that the committee thought that that would be beneficial for you.

But not necessary?

The committee concluded that that would be beneficial for you.

292. [292]
     In relation to Dr Rasalam’s report, Professor McDermott was cross-examined by the Applicant in relation to Dr Rasalam referring to the Applicant displaying no insight, being subject to persecution, having fixed false beliefs. The exchange included the following:^[288]

So you’re saying that these symptoms are not related to a mental health condition?

I’m saying that in some people, those symptoms - in some people they are not symptoms: some people have no insight, but that it is not a symptom of mental health; some people have fixed beliefs, but that is not a symptom of mental health; some people are persecutory, but that is not a symptom of mental health, in some people.

Professor, you’re considering each one of them individually, I am asking you to consider all of the three of those symptoms in one person at once. If they have no insight, if they’re delusional, if they feel persecuted are they displaying signs of mental illness?

Not necessarily.

So you are saying that those three symptoms it was displayed - it was in a person, they are not mentally ill: if they are delusional, they have a persecution complex and they have no insight?

Well, that is not necessarily a sign of mental illness, there are plenty of people in society which hold beliefs that may be insight-less, persecutory and near delusional and I would also want - I would also defer to the psychiatrists’ opinion why they [indistinct] in a GP.

So in my case, those symptoms are not signs of mental illness?

In your case, two psychiatrists have said they were not.

But it could be?

Two psychiatrists have said they’re not.

293. [293]
     The Applicant cross-examined Professor McDermott at length about whether Professor McDermott felt that the Applicant displayed signs of mental illness or symptoms of mental illness. That exchange is as follows:^[289]

[THE APPLICANT]: Professor McDermott, did you allow me time during the - when the review panel was formed, did at - at - at any point feel that I had - I displayed signs of mental illness or symptoms of mental illness?

I advised in my role as a panel member that was - it was important to exclude the possibility.

Trying to - getting the psychiatric report we had an interview which went for more than an hour. Did you feel that I was displaying any signs of mental illness in that interview?

I felt and I told the panel that we needed to exclude the possibility.

So, you felt that there was symptoms of mental illness in that interview?

I advised the panel that we needed exclude the possibility.

If you needed to exclude the possibility that means that you felt there was signs of - symptoms of mental illness. Is that correct?

That is not correct.

If you did not feel that there was symptoms of mental illness why would you try to exclude it, if it was not even one of your differential diagnosis?

Anyone who says the things that were being said by you, as an issue of natural justice we needed to make sure that - that - that there wasn’t something that the university could help you with, ie, a mental illness.

And you said, anything - anyone that says anything that was said by me, what are those things that you are referring to?

You persistently said that there were rumours about you and there is a possibility, not based on anything that I have seen with you or without you, but there is a possibility that that was a sign of mental illness and to be fair to you the university should exclude that, hence the reason for requesting a psychiatric review.

So, would it be far to say that in the first meeting you didn’t have mental illness as one of your differential diagnosis, as one of the things that you suspected?

That is not fair to say that because to use words like differential diagnosis means that I had thought there was something wrong with you. That is not the case. It was not a differential diagnosis. It was a procedural issue to exclude whether this was an [indistinct]

If it was a procedural issue, why request two mental health assessments?

The committee were unsatisfied - or dissatisfied with the first report in terms of its comprehensiveness.

So the committee was still considering after the first report that there could be a sign of - mental illness could be one of the causes?

I wouldn’t put it that way. I would say that the first report did not - was not sufficiently detailed for the committee to make that determination, whether there was or there wasn’t, hence the second report.

And the manner of exclusion, you have mentioned that I couldn’t change my views and I had fixed views. Is that a symptom of mental illness?

Not necessarily.

Can it be a symptom of mental illness?

It can be.

So then, the letter of exclusion when I’ve been excluded, there was a - a symptom of mental illness included in that letter. Is that - is that correct?

That is not correct. It doesn’t have to be construed as a symptom of mental illness. People can have fixed beliefs but do not have a mental illness.

But it can be a sign of mental illness - a symptom of mental illness?

It can be.

294. [294]
     I accept the evidence of Professor McDermott. He answered questions in a convincing manner, he was not evasive. Professor McDermott’s evidence was not contradicted by any contemporaneous document.
295. [295]
     Having regard to Professor McDermott’s evidence, I find that he did not presume that the Applicant had a mental illness or mental health condition either at the time of the Review Panel’s recommendations in relation to the Applicant’s return from suspension or at the time of the Panel’s recommendation that the Applicant be excluded.

Dr Harte

296. [296]
     Dr Harte is the Associate Dean of Students of the College of Medicine and Dentistry and replaced Dr O'Connor.
297. [297]
     In relation to the First Panel Review in July 2018, Dr Harte stated in her affidavit (relevantly in this context):^[290]

The Stanley Report and the Lazzari Report did not identify any sign of mental illness. I took these reports as they were, acknowledging that two psychiatrists had assessed the Applicant thoroughly and that there was no sign of mental illness.

298. [298]
     Dr Harte further stated:^[291]

In coming to this decision of permitting the Applicant’s return to study under the conditions of a student agreement, my own considerations were:

1.  the Stanley Report and Lazzari Report which did not indicate that the Applicant was suffering from a mental illness;

2.  my concerns relating to the Applicant’s professionalism and his discussions with students; and

3.  ensuring support and assistance for the Applicant, as his behaviour was not appropriate and seemed out of the ordinary.

299. [299]
     In relation to the Review Panel’s recommendations made in April 2019, Dr Harte said:^[292]

3. 56.
   On 4 April 2019, the Review Panel issued its findings and recommendations in respect of the Second Review (Second Review Recommendations).

3. 57.
   Exhibit ‘JLH-14’ is a true copy of the Second Review Recommendations.

3. 58.
   The Review Panel came to a consensus that the recommendation be made that the Applicant should be excluded from JCU.

3. 59.
   I considered the Facebook posts published on 5 August 2018 and 8 August 2018 to be disturbing. There had been no change in the Applicant’s behaviour since the First Review. There was no evidence that the Applicant would not engage in similar conduct in the future. The Review Panel believed that the Applicant’s failure to ensure his behaviour was appropriate, showed that he had not demonstrated any reflection on the concerns the Review Panel made in the First Review. These were my only reasons for voting to exclude the applicant.

3. 60.
   The Applicant’s Muslim faith or his status as a refugee played no part in my decision whatsoever. I did not take those matters into account when considering whether the Applicant should be excluded.

3. 61.
   The purpose of the review panels are not only about protecting individual students, but also the JCU staff and students as well as the general public.

3. 62.
   The Applicant had failed to comply with the conditions placed on his enrolment following the First Panel Review and showed a lack of reflection about the concerns raised.

300. [300]
     In cross-examination, Dr Harte gave evidence that initially there was a concern that there may have been an issue with the Applicant’s mental health.^[293] However, after receipt of both of the psychiatrists’ reports, there was no concern about the Applicant’s mental health.^[294] Dr Harte did not accept the suggestion that she believed or thought that the Applicant had a mental health condition.^[295]
301. [301]
     Dr Harte accepted that the observations made by Dr Rasalam may be, but were not necessarily, symptoms of a mental health condition;^[296]
302. [302]
     I found Dr Harte to be an impressive witness. I accept Dr Harte’s evidence which was uncontradicted by documentary evidence.^[297]
303. [303]
     Having regard to Dr Harte’s evidence, I find that she did not presume that the Applicant had a mental illness or mental health condition either at the time of the Review Panel’s recommendations in relation to the Applicant’s return from suspension or at the time of the Panel’s recommendation that the Applicant be excluded.

Dr Hodge

304. [304]
     In relation to the First Panel Review in July 2018, Dr Hodge stated in his affidavit (relevantly in this context):^[298]

3. 21.
   The Review Panel noted concerns, and I shared those concerns as a Review Panel member, about the Applicant’s behaviour, and the Applicant’s apparent significant deficit when compared to his peers in terms of his peer-to-peer relations and potentially how he may relate and interact with patients or placement agency staff. The Applicant’s behaviour towards his peers, [JCB] and [JCA], reported in the Panel Brief raised concerns for me. I was specifically concerned by the threat of physical harm that [JCB] reported and the denigrating message about [JCA]signalled an issue with the Applicant’s interpersonal relations.

3. 22.
   The Review Panel recommended that the Applicant be permitted to return to JCU, on the basis of a number of conditions including obtaining further counselling.

3. 23.
   I considered those recommendations to be appropriate considering the peer-to-peer challenges the Applicant appeared to be facing.

305. [305]
     In relation to the second review of the Review Panel in 2019, Dr Hodge stated in his affidavit (relevantly in this context):^[299]

3. 44.
   During the meeting various members of the Review Panel expressed concerns about the Applicant’s behaviour and interpersonal communications. I shared those concerns.

3. 45.
   During the meeting, members of the Review Panel expressed the concern that the Applicant’s conduct gave rise to the potential for Panel members to be at risk of harm.

3. 46.
   I considered all the documents provided at the 18 March Meeting, as well as the oral statements made by the Applicant. The content of the Facebook posts, and the use of the phrase “genetically stupid” and not having “the intelligence to be alive” caused me concern. I noted in the Applicant’s 5 August post, indicated to me that the Applicant had little regard for the Agreement he had signed and he didn’t have much care for what he said about his peers. I was concerned that he seemed unable to manage his behaviour and interpersonal communications with others, even after he had been specifically directed not to engage in such behaviour. That direction was intended to assist to direct his behaviour. The failure to follow it and to say something so serious as a person was not being worthy of being “alive” made me concerned for the safety of that student. It seemed to me that the Applicant did not consider the terms of the Student Agreement. He had breached its terms soon after returning from suspension. He failed to show insight into the concerns raised about his behaviour or to accept the guidance given. I note that the Applicant provided an apology for his Facebook posts; however, this only seemed to be provided when the conduct was raised. He also failed to initially provide a truthful response to the Facebook allegations when first provided to him. These factors weighed heavily against him continuing in the course.

3. 47.
   On 4 April 2019, the Review Panel issued its finding and recommendations in respect of the Second Review (Second Review Recommendations). These recommendations were agreed upon at the 18 March 2020 meeting.

3. 48.
   Annexure ‘JVH-10’ is a true copy of the Second Review Recommendations.

3. 49.
   It was for these reasons of the Applicant not complying with the First Review Recommendations that I decided to recommend excluding the Applicant.

3. 50.
   To my knowledge, the Applicant has no disability. He received a clearance from two psychiatrists. He did however demonstrate poor behaviours and communication skills. There is a demonstrated link with poor patient care and poor communication skills. If the Applicant was less willing to talk with a doctor or nurse or continued to struggle to form peer-to-peer relations, then the patient care would suffer.

3. 51.
   I take my role as a Review Panel member seriously. Given the gravity of some of the recommendations made and that it includes a requirement to review the case on the basis of merit, as opposed to any underlying preconceptions with regard to other facts. I believe there is no external factors that influenced me in my role on the Review Panel. I can say categorically that the Applicant’s Muslim faith and refugee background played no role in my decision.

306. [306]
     Dr Hodge accepted in cross-examination that mental illness was a ‘possible explanation’ for the behaviour of the Applicant but there were other explanations as well.^[300] Dr Hodge said he was satisfied by the two psychiatrists’ reports that there was no underlying health issue.^[301]
307. [307]
     When cross-examined about paragraph [45] of his affidavit, Dr Hodge denied that he assumed that the Applicant was going to harm him because he thought the Applicant was ‘mentally ill’, or ‘from a Middle Eastern background’ or ‘from a Muslim background’.^[302] Dr Hodge admitted that the 5 August Facebook post gave rise to a concern of a risk to Dr Hodge’s personal safety. The following exchange took place:^[303]

Then what was the reason for mentioning the paragraph?

Okay. So that was a - certainly, that was a - and I remember this quite vividly. That was a concern that I felt personally, based on the language that was being used in the - in the Facebook post, that I felt personally - my belief in terms of that was, look, if - if this was the sort of language you were - you were using then was there the potential, from the point of view of the risk to my own personal safety, should things not - not go the way that you were happy for them to go.

So you thought that there was a risk of physical violence?

I was concerned about a whole range of - as I said, the language of the - the language within the Facebook post I found quite threatening. Even though you were a - addressing it towards a specific individual, the fact you were using that type of language - and once again, quite happy to go to the Facebook post again. So when you start saying things like she is genetically stupid, she does not even have the intelligence to be alive - so when you start using phrases like that - and I - I’m not sure whether you still understand or not, when you start using phrases like that, it makes me concerned in terms of - because you are talking about life and death, and - and so, you know, that does make me concerned.

So if - if - if you did not suspect that I was mentally ill, would you have been concerned still?

Yes.

308. [308]
     Having regard to the whole of Dr Hodge’s evidence in cross-examination, whilst I gained the impression that Dr Hodge harboured some doubt about the conclusions expressed by the two psychiatrists, I find that he did not presume that the Applicant had a mental illness or mental health condition either at the time of the Review Panel’s recommendations in relation to the Applicant’s return from suspension or at the time of the Panel’s recommendation that the Applicant be excluded. In any event, as one of four members of the Review Panel, I consider that Dr Hodge’s state of mind would not have been determinative of the decisions made by the Review Panel.

Dr O'Connor

309. [309]
     In the absence of cross-examination of Dr O'Connor, the question of whether Dr O'Connor presumed that the Applicant had a mental illness turns on whether an inference as to that state of mind can be drawn from the documentary evidence before the Tribunal.
310. [310]
     In an email from Dr O'Connor to Professor Murray sent on 8 August 2017 (see paragraph [258] above) it was stated, relevantly:

… In June [2017] I received the attached email from another student (Muslim) and you and I spoke before about whether this is a persistent delusion that [the Applicant] may have …

(emphasis added)

311. [311]
     In an email from Dr O'Connor to Professor Murray the following day (9 August 2017) (see paragraph [77] above) it was stated, relevantly:

…

I have not confronted [the Applicant] about any delusional thoughts in my meetings with me but have tried to probe him about evidence and sources. Yesterday he was the clearest he has ever been in his statement that he believes it is some political agenda driving all this-before this I couldn't really understand what he was trying to tell me.

I’ll leave the direction of the discussion up to you but will be happy to let [the Applicant] know that I’ve spoken with the 3 staff members he asked me to and they deny any knowledge of the situation. However I realise that might just drive the delusion further as it’s more evidence of some conspiracy.

(emphasis added)

312. [312]
     At paragraph [54] of her affidavit, Dr O'Connor states:

I used the words “persistent delusion” in the 8 August Email and “delusional thoughts” in the 9 August Email, because despite the Applicant’s repeated concerns of rumour spreading; I was unable to find any evidence from the people I had discussed the matter with, at the time, that any such rumours existed. This made me concerned that the Applicant’s version of events might not be factually correct. The basis of my thoughts at this time also arose from the reports received from staff members, as well as the reports of the Applicant confronting students, causing them to become frightened. The Applicant’s constant discussions that the Jewish community was “running” JCU also raised concerns.

313. [313]
     Otherwise, the Applicant appears to contend that an inference should be drawn about a presumption of mental illness based on Dr O'Connor’s failure to investigate the Applicant’s complaints (see e.g. paragraphs [21]-[22] of the Applicant’s written submissions). The alleged failure to investigate is addressed below.
314. [314]
     As explained by Dr O'Connor, the reference to ‘persistent delusion’ and ‘delusional thoughts’ was based on a concern that the Applicant’s version of events may not be factually correct. On the material presented, I am not satisfied that Dr O'Connor presumed that the Applicant in fact suffered from some type of mental illness or mental health condition. I consider that the Applicant has failed to establish that, at the relevant times (insofar as Dr O'Connor is concerned) namely, January 2016 to late March 2018, Dr O'Connor presumed that the Applicant had a mental illness or mental health condition.

Characteristic?

315. [315]
     I accept the Respondents’ submission that s 8(c) of the ADA does not have the effect that there is discrimination on the basis of an attribute if a person presumes that the complainant has a characteristic of an attribute.^[304] As addressed above, I consider that the presumption contemplated by s 8(c) is concerned with a presumption as to the presence (now or in the past) of an attribute as defined. Subsections 8(a) and (b) of the ADA are concerned with a characteristic that a complainant with an attribute ‘generally has’ or one that is ‘often imputed’ to a person with an attribute. In my view, the characteristic must exist and is not something that can be the subject of presumption.
316. [316]
     The Applicant cross-examined some of the Respondents’ witnesses at some length about the various references to ‘lack of insight’, ‘fixed false beliefs’, ‘persecutory belief’, and ‘delusion’ (or ‘delusional’ thoughts). The Applicant suggested that these were ‘symptoms’ of a mental illness. I consider that the responses given by the respective witnesses can be summarised as an acceptance that the matters referred to could be a symptom of a mental illness but this was not necessarily so. Assuming that the reference to ‘characteristic’ in s 8 of the ADA can be equated with a ‘symptom’, the Applicant has not established that any of the symptoms identified was a characteristic that a person with an impairment (as defined), comprising a mental health condition, ‘generally has’ or is ‘often imputed’ to a person with such an attribute. I find that neither subsection 8(a) nor subsection (b) is engaged.
317. [317]
     For completeness, even if the Applicant had established such a ‘characteristic’, I would have concluded that the Applicant had failed to establish that any aspect of the treatment identified by the Applicant occurred on the basis of such characteristic or characteristics.
318. [318]
     I now turn to identification of the ‘comparator’.

The Comparator

319. [319]
     I have referred to s 10 of the ADA above. It is convenient to set out s 10 in full:

1.  Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.

Example—

R refuses to rent a flat to C because—

• C is English and R doesn’t like English people
• C’s friend, B, is English and R doesn’t like English people
• R believes that English people are unreliable tenants.

In each case, R discriminates against C, whether or not R’s belief about C’s or B’s nationality, or the characteristics of people of that nationality, is correct.

2.  It is not necessary that the person who discriminates considers the treatment is less favourable.

3.  The person’s motive for discriminating is irrelevant.

Example—

R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R’s conduct amounts to discrimination against C.

4.  If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.

5.  In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.

320. [320]
     The application of s 10 of the ADA requires the adoption of the following approach:^[305]

Section 10 requires a comparison between a person with an attribute and a person without that attribute. The comparison is to be made by reference to a certain set of circumstances. In the case of the person with the attribute, that is the set of circumstances in which that person has been treated or the circumstances in which it is proposed to treat that person. In the case of the person without the attribute, who is commonly called in this context “the comparator”, they are hypothetical circumstances which are assumed to be the same or not materially different from those in which the person with an attribute has been or will be treated …

321. [321]
     In Woodforth, McMurdo JA also said:^[306]

Section 10 of the ADA requires the comparison to be made on the hypothesis that the treatment of the person without the impairment would be “in circumstances that are the same or not materially different” from those that constituted the context for the treatment of the impaired person. In that respect s 10 of the ADA is no different from s 5(1) of the [Commonwealth Act]. But beyond that likeness, there are differences between the two statutes. The [Commonwealth Act] contained no equivalent of s 8 of the ADA, the effect of which, in combination with s 10 of the ADA, is to proscribe discrimination on the basis of a “characteristic”. In the present case it proscribed discrimination on the basis of the applicant’s inability to communicate by speech. That proscription would be ineffective if the characteristic of a disability was also to be treated as a “circumstance” in the comparison for the purposes of s 10. It would mean that there could not be direct discrimination on the basis of a characteristic of an impairment, because the comparator also would be a person with that characteristic …

322. [322]
     In Mulligan v Virgin Australia Airlines Pty Ltd,^[307] a case involving a complaint brought under the Disability Discrimination Act 1992 (Cth), the applicant was denied access with his assistance animal (a dog) on a commercial aircraft in circumstances where the applicant suffered from cerebral palsy including vision impairment. The Full Court of the Federal Court of Australia concluded that the comparator was a person, who was without a disability and without a dog, who wanted to travel with the airline.^[308]
323. [323]
     In my view, having regard to the test as articulated by McMurdo JA, the approach adopted in Mulligan, and my findings in relation to the alleged ‘attributes’, the proper ‘comparator’ in the present case is a person who was not a Muslim and was not of Middle Eastern ethnicity or descent, who was studying the MBBS course at JCU during the period of the alleged treatment (the Comparator).
324. [324]
     In reaching this conclusion, I reject three aspects of the notional comparator argued by the Respondents.
325. [325]
     First, the Respondents contend that the comparator ‘was not Jewish’.^[309] The Respondents made no submission in support of this contention. In my view, it is not a matter which should be assumed as part of the notional comparator. Section 10 of the ADA requires identification of the relevant attribute (or, as noted above, the presumed attribute or characteristic) and to then determine whether there was less favourable treatment on the assumption that the comparator did not have such attribute (or presumed attribute or characteristic). In my view, there is no basis for adopting a comparator who is presumed not to have Jewish ‘ethnicity’ or ‘descent’ (each of which is included in the definition of ‘race’ in the ADA,^[310] and, consequently, an attribute for the purpose of s 7 of the ADA). In my view, this would set up a counterfactual not contemplated by s 10 of the ADA.
326. [326]
     Second, the Respondents contend that the comparator ‘was not presumed to have a mental illness’.^[311] I have concluded that none of the relevant staff members of JCU made a presumption that, at the relevant times, the Applicant had a mental illness (being an ‘impairment’). In those circumstances, I consider that there is no presumed attribute to exclude from the notional comparator for the purposes of determining whether there was less favourable treatment in the relevant circumstances. In my view, it is simply not a matter which arises for consideration in relation to the comparator.
327. [327]
     Third, the Respondents submit that the comparator, amongst other things, engaged in all the conduct that the Applicant allegedly engaged in.^[312] In my view, such matters are relevant to the ‘circumstances’ in which the Applicant was allegedly treated rather than forming part of the task of identifying the comparator.^[313]
328. [328]
     I now turn to the issue of whether the Applicant was treated less favourably than the Comparator would be treated in the same (or not materially different) circumstances.

Less favourable treatment of the Applicant than the Comparator in the same circumstances?

329. [329]
     The relevant circumstances have been identified under the heading ‘The relevant facts’.
330. [330]
     As addressed above:

     1. I am satisfied that s 8 of the ADA has no application in the present case and the only applicable ‘attributes’ are the race and religion attributes;
     2. I have identified those persons whose conduct I consider is material to the treatment alleged by the Applicant.
331. [331]
     It is also necessary to identify, as best as can be discerned from the Applicant’s case, the individual JCU staff members alleged to be responsible for the separate instances of treatment as alleged by the Applicant.
332. [332]
     With respect to the alleged failure to investigate, I consider that the relevant staff members were Professor Murray and Dr O'Connor. I am not satisfied that members of the Review Panel^[314] had any obligation to, or need to, investigate the complaints raised by the Applicant. In any event, there would be no basis for a finding that the Review Panel members (or Professor Bull) would have carried out some investigation of the Applicant’s complaints if the complaints were made by the Comparator.
333. [333]
     With respect to the suspension, I consider that the relevant staff members were Professor Cocklin and Professor Murray.
334. [334]
     With respect to the imposition of the terms of the Student Agreement, I consider that the relevant staff members were the members of the Review Panel.
335. [335]
     With respect to the Applicant’s exclusion, I consider that the relevant staff members were Professor Bull and the members of the Review Panel. The Applicant’s case also seems to attempt to tie Professor Murray’s conduct to the exclusion.

Alleged failure to investigate

336. [336]
     A good deal of the Applicant’s written submissions was directed at the contention that both the ISIS rumour and the Victim of racism rumour were in fact circulating and continued to circulate until at least May 2018. As noted above, the issue for determination does not require findings by the Tribunal as to whether, and (if so) to what extent, the respective rumours were in fact circulating. The question, stated broadly, is whether the Applicant was treated less favourably than the Comparator would be treated in the same (or not materially different) circumstances in dealing with the complaints made by the Applicant in relation to each of the rumours. As addressed above, I consider that the issue turns on Professor Murray’s and Dr O'Connor’s appreciation or understanding of the complaints raised by the Applicant.
337. [337]
     The nature of this aspect of the Complaint is one of omission, namely, a failure to act by carrying out an investigation. The Respondents do not contend that an omission cannot amount to treatment for the purposes of the ADA, and I find that an omission can amount to relevant treatment. One difficulty with the Applicant’s case in this regard is that he did not identify what particular investigation each of Professor Murray and Dr O'Connor should have undertaken. A further difficulty for the Applicant is that he did not provide any specific written complaint to either Professor Murray or Dr O'Connor much less lodge a formal complaint in accordance with the process identified by Dr O'Connor. I also note my findings above in relation to the state of the evidence insofar as it is relevant to the understanding of each of Professor Murray and Dr O'Connor in relation to the ISIS rumour. I did not understand it to be the Applicant’s case that any of the ‘Jewish students’ was responsible for spreading the ISIS rumour and I find that neither Professor Murray nor Dr O'Connor was informed by the Applicant that any of the ‘Jewish students’ was responsible for circulating the ISIS rumour.
338. [338]
     I consider the above matters to be of importance given that the Applicant’s case requires a finding that one or both of Professor Murray and Dr O'Connor would have conducted an investigation if the matters raised by the Applicant had, in the same (or not materially different) circumstances, been raised by the Comparator. I find that the Applicant has failed to establish less favourable treatment in this regard. I will deal with each of Professor Murray and Dr O'Connor in turn.

Professor Murray

339. [339]
     At paragraph [33g i] of his written submissions, the Applicant submitted (as an alternative submission) that Professor Murray ‘deliberately did not investigate’ the Applicant’s complaint or complaints ‘because of his relationship with the Jewish community and in particular Professor Wronski’ (the Deputy Vice Chancellor of Medicine at JCU and Professor Murray’s ‘former boss’).
340. [340]
     This submission is reflective of a line of cross-examination of Professor Murray in relation to his working and personal relationship with Professor Wronski, and that Professor Wronski and his late wife were of Jewish ‘background’ or ‘persuasion’ (as Professor Murray put it), and also in relation to other staff members asserted by the Applicant to be Jewish.^[315] At the conclusion of that line of questioning, the following exchange took place:^[316]

Professor, you have worked with all of these professors, and I complained about a group of Jewish students and all of these professors go to the same Jewish community that those students go to, the students that I complained about. Do you think that your relationship with professors affected your ability to investigate my complaint?

No, I do not.

Professor, do you accept that Professor - your relationship with Professor Wronski and his family had some effect as to how you approached my complaint?

No, I do not.

341. [341]
     I accept this evidence of Professor Murray. The Applicant did not squarely put that Professor Murray deliberately abstained from investigating the complaints made by the Applicant against the ‘Jewish students’ (or failed to properly investigate such complaints) because Professor Wronski and his wife were also Jewish. The Applicant did not suggest in cross-examination, nor has he articulated in his submissions, any logical basis upon which the Tribunal could find that Professor Murray abstained from investigating the complaints made by the Applicant against the ‘Jewish students’ because Professor Wronski and his wife were also Jewish. The Applicant produced no evidence from which any inference could be drawn to justify rejecting Professor Murray’s evidence in this regard. The Applicant’s submission has no substance and I reject it.
342. [342]
     I find that the Applicant has not established that Professor Murray would have conducted some investigation of either the ISIS rumour or the Victim of racism rumour if the complaints had been made by the Comparator in the same manner and in the same (or not materially different) circumstances as addressed above.

Dr O'Connor

343. [343]
     Dr O'Connor was the Senior Lecturer, Student Academic Support and then Associate Dean of Students at the College of Medicine and Dentistry.
344. [344]
     In addressing the Applicant’s case in respect of Dr O'Connor, there is some difficulty given that, first, Dr O'Connor was not required to be made available for cross-examination and, second, her affidavit evidence is, in my view, quite sparse on the issue of the alleged failure to investigate. Dr O'Connor did state that ‘It was hard for me to determine the nature of any gossip being spread in the student body, given that many students gather in social settings outside of JCU’ (paragraph [27]). Dr O'Connor also stated (at paragraph [137]):

Throughout my discussions with the Applicant, he never specifically named any student that was spreading rumours about him. Without this information, I was unable to investigate or take any further action, in relation to his concerns.

345. [345]
     Dr O'Connor was initially aware that JCF had heard the ISIS rumour in early 2016 but did not actively seek to identify the source or sources of the ISIS rumour at that time. However, insofar as the Applicant alleges an ongoing failure to investigate the ISIS rumour, I am not satisfied that Dr O'Connor appreciated that the Applicant’s complaints about rumours circulating about him included the ISIS rumour after (no later than) the middle of December 2016
346. [346]
     With respect to the Victim of racism rumour, I accept that Dr O'Connor made inquiries of staff members (see paragraph [77] above).
347. [347]
     I find that Dr O'Connor did not actively investigate the student source or sources of the Victim of racism rumour, save that Dr O'Connor did liaise with Professor Murray concerning her contact with Mr Mubashir and the anonymous student (see paragraphs [99] and [116] above).
348. [348]
     Having regard to the evidence as a whole, particularly in circumstances where, first, the Applicant had been informed of the formal process for the making of a complaint; second, where the Applicant had not followed that process (or had not made what could be described as a formal written complaint); and, third, the lack of direct evidence of details of the persons alleged to be spreading the respective rumours, I find that the Applicant has failed to establish (on the balance of probabilities) that:

     1. the Applicant’s race and religion attributes played any part in, much less amounting to a substantial reason for, Dr O'Connor not actively investigating the source or sources of the ISIS rumour or the Victim of racism rumour;
     2. Dr O'Connor would have conducted some particular investigation in respect of either rumour if the complaints had been made by the Comparator in the same (or not materially different) circumstances as addressed above.

The suspension

Professor Cocklin

349. [349]
     Professor Cocklin was, at all relevant times, the Provost of JCU. He authorised the suspension of the Applicant’s enrolment.
350. [350]
     The uncontradicted evidence of Professor Cocklin was:

     1. he authorised the suspension of the Applicant’s enrolment, on the advice of Professor Murray, based on the behaviour Professor Murray described and the risk that it might pose to placement agreements and student safety;^[317]
     2. on 5 June 2018, he received an email from Professor Murray recommending that the suspension continue until an independent psychiatric report was obtained;^[318]
     3. on 8 June 2018, he sent an email to Professor Murray advising that the review process should continue;^[319]
     4. on 24 July 2018, he received a letter from Professor Murray recommending the Applicant recommence his course, with an attached report from the Review Panel;^[320]
     5. on 24 July 2018, based on the recommendations of Professor Murray and the Review Panel, he wrote a letter to Professor Murray advising that the Applicant’s suspension be lifted and endorsing the recommendations of the Review Panel (including endorsing the Review Panel’s condition to reconvene in six months);^[321]
     6. that he acted to authorise, and maintain, the suspension of the Applicant, on the basis that he accepted the recommendations provided to him by Professor Murray, and his decision had nothing to do with whether the Applicant had a mental illness or disorder, whether actual or perceived, nor his religion or refugee status.^[322]
351. [351]
     In light of the uncontradicted evidence of Professor Cocklin, I find that:

     1. the authorisation of, and maintenance of, the suspension of the Applicant was based on the recommendations provided to him by Professor Murray;
     2. Professor Cocklin’s decision to do so had nothing to do with whether the Applicant had a ‘perceived’ mental illness or with the Applicant’s religion;
     3. the Applicant has failed to establish that Professor Cocklin treated the Applicant less favourably than he would have treated the Comparator in the same (or not materially different) circumstances;
     4. JCU, by the conduct of Professor Cocklin, did not discriminate against the Applicant on the basis of an attribute.
352. [352]
     In my view, whether the treatment of the Applicant comprising his suspension amounted to direct discrimination necessarily turns upon the conduct of Professor Murray.

Professor Murray

353. [353]
     Professor Murray recommended the suspension of the Applicant.
354. [354]
     I have found that Professor Murray did not presume that the Applicant had a mental illness (and, further, that the Applicant has not established the existence of a ‘characteristic’ pursuant to subsections 8(a) or (b) of the ADA).
355. [355]
     It is necessary to analyse the Applicant’s case insofar as he alleges discrimination on the basis of the race and religion attributes. For the reasons addressed in relation to the alleged failure to investigate, I find that Professor Murray did not recommend that the Applicant be suspended on the basis of those attributes, or that such attributes were a substantial reason for such recommendation.
356. [356]
     Rather, I find that there were two substantial reasons for Professor Murray’s recommendation of suspension.
357. [357]
     The first reason was the Applicant’s behaviour, as understood by Professor Murray, as set out in the Suspension Letter. I accept that the Suspension Letter reflected Professor Murray’s genuine belief that the Applicant had engaged in the behaviour recorded in the letter.
358. [358]
     The second reason was Professor Murray’s suspicion that the Applicant may have been suffering from a mental illness (as addressed above). That this suspicion was a substantial reason for the recommendation of the suspension can be inferred from the following matters (particularly against the background of the observations made by Professor Murray in the March 2018 email):

     1. the review by the Review Panel was instituted by Professor Murray on the basis of Professor Murray’s ‘concerns’ about the Applicant’s ‘behaviours and mental health’ (as set out in the Suspension Letter);
     2. in the Suspension Letter, Professor Murray also stated that the first of the matters that had given rise to ‘concern’ was ‘[a] state of health (mental health)’;
     3. the following statement in the email from Professor Murray to the Applicant also on 16 May 2018:

The core issue for the University is having a better understanding of your belief that you are being persecuted. As I’ve explained, I am obliged to consider the possibility that this might be a disorder of thinking, which can be an early manifestation of mental illness. I accept that you have a sincere view that this is not what is going on. However, given the nature of medical training and our duty you to clinical placement providers and the public, I believe that we have to take active steps to consider that possibility. It is an important matter to get sorted, not least because if indeed there is a mental health concern, you will do much better with early care.

359. [359]
     In my view, it was the twin concerns of the Applicant’s behaviour (as understood by Professor Murray) and Professor Murray’s suspicion of a mental illness that formed the basis for the suspension of the Applicant. I am of the view that there may be more than one ‘substantial reason’ as contemplated by s 10(4) of the ADA for the treatment of an applicant less favourably than a comparator would have been treated. I consider that to be the position in the present case. However, in circumstances where s 8(c) of the ADA is not engaged (nor subsections 8(a) or (b) of the ADA), the Applicant’s case turns on the race and religion attributes.
360. [360]
     Had I concluded that Professor Murray had presumed that the Applicant had a mental illness, the Comparator would have been differently constructed, namely a medical student at JCU without the race and religion attributes and who was not presumed to have the attribute of impairment, specifically a mental illness. In that event, I would have been satisfied that the treatment of the Applicant by way of suspension (on the recommendation of Professor Murray) would have amounted to less favourable treatment of a comparator student on the basis of the presumed attribute (of mental illness) because such presumed attribute would have been a substantial reason for the treatment.
361. [361]
     However, in light of my finding in respect of the alleged presumed mental illness, I find that the Applicant has failed to establish that, in respect of his suspension, he was treated less favourably than the Comparator would be treated in circumstances that are the same (or not materially different).

The Student Agreement and the imposition of conditions

362. [362]
     I refer to the evidence and my findings set out at paragraphs [283] to [308] above.
363. [363]
     In light of the information provided to the members of the Review Panel and the nature of the conditions included in the Student Agreement, I am not satisfied that the Applicant was treated less favourably than the Comparator would be treated in the same (or not materially different) circumstances. I find that the race and religion attributes played no part in (much less providing a substantial reason for) the imposition of the conditions set out in the Student Agreement. I find that the Applicant has failed to establish this aspect of the case.

The exclusion

Professor Bull

364. [364]
     In her affidavit, Professor Bull stated:

     1. ‘My decision to exclude the Applicant was based on the Review Panel’s recommendation and on the basis that the Applicant had failed to improve his behaviour after the First Review, thereby posing a risk to the health and safety of other JCU students and staff, and potential risks resulting from inappropriate conduct on placements’;^[323]
     2. ‘My decision to exclude the Applicant was in no way made on the basis of the Applicant’s religion, his status as a refugee or mental illness. I did not understand the Applicant to be suffering from any mental illness or condition’.^[324]
365. [365]
     Professor Bull did not know of the Applicant until the recommendation of the Review Panel was passed to her.^[325]
366. [366]
     In cross-examination, Professor Bull:

     1. stated that she was not informed by the College of Medicine or Professor Murray that the Applicant had a mental health issue;^[326]
     2. confirmed that she did not carry out any sort of investigation but acted on the recommendation of the Review Panel;^[327]
     3. stated that her role was not to carry out an investigation, that was the role of the Review Panel;^[328] but she did have the power to reject a recommendation;^[329]
     4. stated that she could not recall speaking with Professor Murray on the telephone after he provided his recommendation;^[330]
     5. stated that she did not speak to any of the Review Panel members at any point in the process;^[331]
     6. stated that she considered the case for exclusion to be ‘quite clear’ because ‘the review panel had put forward really clear recommendations on the basis that the Applicant did not adhere by the Student Agreement that he had entered into in the previous year, and the exclusion was on that basis’.^[332]
367. [367]
     The Applicant did not challenge Professor Bull on her evidence and the Applicant did not put to Professor Bull that she presumed that he had a mental illness or that his race or ethnicity or his religion played any part in her decision to exclude him.
368. [368]
     I accept Professor Bull’s evidence. I find that Professor Bull acted in reliance on the recommendations of the Review Panel and that was the sole basis upon which she acted to exclude the Applicant. I find that Professor Bull did not treat the Applicant less favourably (by excluding him) than the Comparator would have been treated in the same (or not materially different) circumstances.
369. [369]
     I also find that Professor Murray’s conduct was not a factor in Professor Bull’s decision to exclude the Applicant.
370. [370]
     If the Applicant is to make out his case in relation to his exclusion, he would need to establish this in reliance on the conduct and state of mind of the Review Panel members because it was their recommendation upon which Professor Bull relied.

The Review Panel

371. [371]
     I refer to the matters addressed at paragraphs [283] to [308] above.
372. [372]
     The Applicant submits that the recommendation by the Review Panel made no reference to the 5 August Facebook post.^[333] Whilst it is true that no express mention is made of the Facebook post in the 4 April 2019 letter, the letter did state: ‘He seemed to display minimal ability to reflect on a situation or how to respond, and continued to display problematic responses to challenging situations.’ I am satisfied that the reference to ‘problematic responses’ is consistent with the evidence of each of the Review Panel members, which evidence I accept.
373. [373]
     I find that no inference can be drawn that the race and religion attributes played any part in the recommendation to exclude the Applicant. I find that the Applicant has failed to establish that the recommendation of the Review Panel to exclude the Applicant amounted to less favourable treatment than would have been accorded to the Comparator in the same (or not materially different) circumstances.

Conclusion

374. [374]
     For the above reasons, I find that the Applicant has failed to establish his claim of direct discrimination.

Indirect discrimination

375. [375]
     Section 11 of the ADA provides:

1.  Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term—

1.  with which a person with an attribute does not or is not able to comply; and

2.  with which a higher proportion of people without the attribute comply or are able to comply; and

3.  that is not reasonable.

2.  Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—

1.  the consequences of failure to comply with the term; and

2.  the cost of alternative terms; and

3.  the financial circumstances of the person who imposes, or proposes to impose, the term.

3.  It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.

4.  In this section—

term includes condition, requirement or practice, whether or not written.

Example 1—

An employer decides to employ people who are over 190cm tall, although height is not pertinent to effective performance of the work. This disadvantages women and people of Asian origin, as there are more men of non-Asian origin who can comply. The discrimination is unlawful because the height requirement is unreasonable, there being no genuine occupational reason to justify it.

Example 2—

An employer requires employees to wear a uniform, including a cap, for appearance reasons, not for hygiene or safety reasons. The requirement is not directly discriminatory, but it has a discriminatory effect against people who are required by religious or cultural beliefs to wear particular headdress.

376. [376]
     In the Applicant’s Statement of Contentions (exhibit 4), the Applicant contended the following:^[334]

…

3. 107.
   In terms of ‘indirect discrimination’, [the Applicant] was indirectly discriminated against because JCU

3. a.
   Chose to allege that [the Applicant] was mentally unwell because of their assumptions about his refugee background, before investigating his complaints about harassment and rumour-mongering within the student cohort;

3. b.
   Chose to impose onerous review measures on [the Applicant] even after receiving two reports from psychiatric experts showing there were no concerns with [the Applicant]’s mental health or his reporting of events; and

3. c.
   Did so because JCU viewed [the Applicant] as a ‘refugee’ and assumed that he had a related ‘persecution complex’ rather than investigating his complaints of harassment in the first instance.

377. [377]
     The reference to ‘onerous review measures’ appears to concern the imposition of the conditions contained in the Student Agreement which required compliance by the Applicant.
378. [378]
     In my view, the provision of the Student Agreement containing the respective conditions amounted to the imposition of a ‘term’ within the meaning of s 11(4) of the ADA. Notwithstanding that the Applicant had a right of appeal against the requirement to enter into the Student Agreement, in the circumstances in which the Student Agreement was presented to the Applicant, I consider that he was effectively required to enter into the Student Agreement in order to continue studying in the MBBS course and, consequently, this amounted to the imposition of a term.^[335]
379. [379]
     However, the Applicant has not established that, as a person with an ‘attribute’ (being the race and religion attributes), he did not or was not able to comply with the conditions of the Student Agreement. Even if that element could have been satisfied, there would be no factual basis for a finding that a higher proportion of people without those attributes complied, or were able to comply, with the conditions of the Student Agreement.
380. [380]
     I find that the Applicant has failed to prove the elements set out in subsections 11(1)(a) and (b) of the ADA and, consequently, has failed to establish his complaint of indirect discrimination.

Victimisation

381. [381]
     The prohibition of conduct which constitutes ‘victimisation’ is found in Part 4 of Chapter 5 of the ADA. Chapter 5 is headed ‘Associated highly objectionable conduct (complaint and penalty)’.
382. [382]
     Section 129 of the ADA provides:

A person must not victimise another person.

Maximum penalty—

1.  in the case of an individual—45 penalty units or imprisonment for 3 months; or

2.  in the case of a corporation—170 penalty units.

383. [383]
     Section 130 of the ADA provides:

1.  Victimisation happens if a person (the respondent) does an act, or threatens to do an act, to the detriment of another person (the complainant)—

1.  because the complainant, or a person associated with, or related to, the complainant—

1.  refused to do an act that would amount to a contravention of the Act; or

2.  in good faith, alleged, or intends to allege that a person committed an act that would amount to a contravention of the Act; or

3.  is, has been, or intends to be, involved in a proceeding under the Act against any person; or

2.  because the respondent believes that the complainant, or a person associated with, or related to, the complainant is doing, has done, or intends to do one of the things mentioned in paragraph (a)(i), (ii) or (iii).

2.  In this section, a reference to involvement in a proceeding under the Act includes—

1.  making a complaint under the Act and continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and

2.  involvement in a prosecution for an offence against the Act; and

3.  supplying information and producing documents to a person who is performing a function under the Act; and

4.  appearing as a witness in a proceeding under the Act.

384. [384]
     Section 131 of the ADA provides:

The application or continued application of section 129 (Victimisation) is not affected by—

1.  the failure or otherwise of the complainant or the person associated with, or related to, the complainant, to do 1 of the things mentioned in section 130(1)(a)(i), (ii) or (iii) (Meaning of victimisation); or

2.  the withdrawal, failure to pursue, or determination of a proceeding under the Act.

385. [385]
     In order to establish ‘victimisation’ it is necessary for the Applicant to satisfy the elements of s 130 of the ADA.
386. [386]
     In the Applicant’s Statement of Contentions (exhibit 4), the Applicant contended the following:^[336]

3. 108.
   In terms of ‘victimisation’, [the Applicant] was victimised by JCU and most particularly, Professor Murray, because he raised complaints in relation to ongoing harassment by students within the cohort of the MBBS that rather than investigating those complaints, were reversed into allegations of mental unwellness on [the Applicant’s] part.

3. 109.
   Other students of non-Muslim or refugee extraction who raised complaints had their concerns investigated, whereas [the Applicant’s] complaints were not investigated within the student cohort before making assessments as to his suitability to continue studying medicine at JCU.

3. 110.
   Other students involved in significant behavioural infractions and breaches of university policies have not been suspended or excluded from the MBBS or JCU by way of direct comparison. Those students were not of Muslim background or had pervious refugee status.

387. [387]
     Those contentions do not address the specific elements of s 130 of the ADA. At a factual level, the complaints made by other students about the Applicant were plainly distinguishable from the Applicant’s complaints. The other students’ complaints specifically named the Applicant and provided details of the conduct which they complained about. Regardless, that is not the issue raised by s 129 and s 130 of the ADA.
388. [388]
     At the commencement of the hearing, I invited the Applicant to inform the Tribunal as to whether his case fell within one or more of subsections 130(a)(i), (a)(ii), a(iii), or (b) and the Applicant stated that he would like to wait until the closing submissions to do so.^[337] In referencing ‘victimisation’ immediately prior to that exchange, it is apparent that the Applicant was using the term in the ordinary or dictionary sense of that word rather than by reference to s 129 or s 130 of the ADA.^[338] In his final written submissions, the Applicant did not address s 129 or s 130. He did reference victimisation in paragraph [33n] where he submitted:^[339]

The applicant was activily [sic] being harassed and people were not working with him and profeossor [sic] murray solution was that the applicant was mentally ill. This is the definiont [sic] of victiminsation [sic]. If people who are completely normal around you and never complaint about you or brough [sic] up any issues with you suddenly after a while unfriends you on facebook [sic]. Obviously you would think why did this person unfriend me? If 20 people do it then would it illogical to wonder if they were hearing rumours and people saying negative things about the applicant.

389. [389]
     It appears that the Applicant is again referencing victimisation in the ordinary sense of that word.
390. [390]
     The allegation of victimisation appears to be directed at the conduct of Professor Murray. The thrust of the Applicant’s allegation against Professor Murray in this context appears to be that Professor Murray falsely adopted a position that the Applicant was ‘mentally ill’. If that is the contention made by the Applicant, I reject it. As noted above, I have concluded that Professor Murray held a suspicion that, until receipt of Dr Lazzari’s report, the Applicant was suffering from a mental illness. I have concluded that Professor Murray did not presume that the Applicant was in fact suffering a mental illness. Further, insofar as Professor Murray held the suspicion, I consider that it was a suspicion genuinely held by Professor Murray.
391. [391]
     Given the nature of conduct that would contravene s 129 of the ADA, coupled with the onerous penalties provided for by s 129, I consider that an alleged contravention of that provision is a serious allegation.
392. [392]
     Whilst acknowledging that the Applicant was self-represented, given the nature of the allegation of victimisation (and noting the potential penalties provided for by s 129 of the ADA), I consider that Professor Murray should have been given the opportunity to respond to any specific allegation upon which the Applicant would seek to rely in endeavouring to make out his case in relation to victimisation.
393. [393]
     The Applicant has not provided or articulated the details of the specific conduct of the Respondents alleged to be a contravention of s 129 of the ADA nor has he identified how one or more of the provisions of s 130 of the ADA is engaged. I consider that it is not the Tribunal’s role to endeavour to construct an argument that one or more of the Respondents may have contravened s 129 and address such an argument.
394. [394]
     In any event, even if the Applicant had established that one (or more) of subsections 130(1)(a)(i), (a)(ii), (a)(iii), and (1)(b) of the ADA was engaged, I could not have been satisfied that the particular ‘act’ done (being an aspect of the treatment complained of by the Applicant in respect of the discrimination aspect of the claim) was done by JCU or one or more of the individual Respondents ‘because’ the Applicant refused to do some relevant act or he alleged or intended to allege (in good faith) a contravention of the ADA, or that the Applicant, relevantly, intended to be involved in a proceeding under the ADA, or because of a belief of JCU, by an individual staff member, as contemplated by s 130(1)(b).
395. [395]
     In short, I find that the Applicant has failed to discharge the burden of proof, placed on him by s 204 of the ADA, of establishing a contravention of s 129 of the ADA.

The claim against each of Professor Murray, Dr Rasalam and Professor Bull

396. [396]
     There is no contest that Professor Murray, Dr Rasalam and Professor Bull were respectively acting within the scope of their employment with JCU.
397. [397]
     Neither the Applicant’s statement of contentions nor his written submissions address the basis upon which it is alleged that each of those persons is personally liable under the ADA.
398. [398]
     The Respondents address this issue at paragraphs [182]-[188] of the Respondents’ secondary submissions.
399. [399]
     I accept the Respondents’ submission that the only provisions of the ADA that could have any application are s 114 and s 123.
400. [400]
     Section 114 of the ADA provides:

If discrimination by a person or body is unlawful under this chapter, discrimination by a worker or agent of such a person or body is also unlawful.

401. [401]
     Section 123 of the ADA provides:

If—

1.  a person requests or encourages another person to contravene the Act; and

2.  the other person acts, or attempts to act, on the request or encouragement;

both are jointly and severally civilly liable for the contravention, and a proceeding under the Act may be taken against either or both.

402. [402]
     For the reasons set out above, I consider that none of the Respondents engaged in discrimination as proscribed by the ADA nor did any of them contravene s 129 of the ADA. For this reason, I consider that neither s 114 nor s 123 of the ADA is engaged. For completeness, I note that the Applicant did not articulate a case against any of Professor Murray, Dr Rasalam or Professor Bull in relation to the operation of s 123, save in the broadest sense in relation to Professor Murray given the allegations that he ‘influenced’ other staff members in relation to the existence of a mental illness of the Applicant.

Relief

403. [403]
     In light of my findings in relation to liability, it is unnecessary to address the question of relief. However, I will make some brief observations in this context in respect of the claim of direct discrimination. The Applicant sought the following relief in the Statement of Contentions:^[340]

Reinstatement

3. 112.
   In the first instance, [the Applicant] seeks a declaration that he be reinstated as a student of the MBBS to complete the final year of the degree at JCU.

3. 113.
   To facilitate that reinstatement, [the Applicant] seeks an order that he complete the MBBS at the Cairns campus to reduce friction for all parties

3. 114.
   In the alternative, [the Applicant] seeks an order that Professor Murray write a letter of recommendation facilitating his transfer into the equivalent 5^th year level of an MBBS at another university.

Compensation

3. 115.
   A declaration that the Respondents contravened section 9 of the Anti-Discrimination Act 1991 by way of direct discrimination against [the Applicant];

3. 116.
   By virtue of the Declaration set out above, [the Applicant] seeks the following relief:

a. JCU’s payment of the tuition and residential costs for him to complete the MBBS through JCU, estimated to be in the order of $80,000.00;

b. In the alternative, JCU’s payment of his tuition and residential to transfer to another university to complete his MBBS, estimated to be in the order of $150,000.00; and

c. Overall, the payment of two years’ loss of income equivalent to a first-year graduate from the MBBS on account of the delay in his graduation, estimated to be in the order of $77,000.00 per annum.

3. 117.
   A declaration that the Respondents contravened section 9 of the Anti-Discrimination Act 1991 by way of indirect discrimination against [the Applicant].

3. 118.
   By virtue of the Declaration set out above, [the Applicant] seeks the following relief:

a. Damages in relation to non-financial loss in the form of psychological injury, hurt, distress, humiliation, damage to reputation and loss of enjoyment of profession.

3. 119.
   A declaration that the Respondents contravened section 130 of the Anti-Discrimination Act 1991 by way of victimising [the Applicant].

3. 120.
   By virtue of the declaration set out above, [the Applicant] seeks the following relief:

a. 170 penalty units against the First Respondent, equivalent to $22,686.50;

b. 45 penalty units against each of the Second, Third and Fourth Respondents, equivalent to $18,015.75 in total.

3. 121.
   Interest; and

3. 122.
   Such other orders as the Court considers appropriate.

404. [404]
     By exhibit 7, the Applicant set out how much he was claiming by way of compensation as follows:

…

I am seeking my fees to study in another university.

My fees to study Bachelor of Medicine in another university is $860,000. The breakdown of the costs has been provided to the respondents through emails in past 12 months.

I calculated the amount by contacting various private universities locally and overseas. For example bond University and Macquarie University.

405. [405]
     The Applicant did not address the question of relief in his final written submissions.
406. [406]
     The Respondents submit:^[341]

3. 189.
   If contrary to the above submissions, the Tribunal finds that there was unlawful discrimination, the Respondents submit that there is no evidence as to loss and damage. Absent such evidence, no order for compensation can be made.

3. 190.
   In any event, it is important to note that any compensable loss or damage suffered by the Complainant depends on which form of discrimination is made out. However, the claim for loss or damage does not descend to identify the causal connection between the alleged discriminatory acts and the loss claimed. For example, there is no connection between the failure to investigate the Complainant’s complaints and the amount of compensation sought. Similarly, there is no connection between the suspension/Student Agreement and any loss claim.

407. [407]
     It is unclear whether the Applicant intended exhibit 7 to constitute the only relief ultimately sought by him. Regardless, in the circumstances of the case (particularly the interactions between the Applicant and the various staff members) I consider that it would not be appropriate to grant relief in the form of reinstatement or to require Professor Murray to write a letter of recommendation for the Applicant.
408. [408]
     With respect to the question of compensation, I find that the claim for compensation in the form of the alleged alternative fees to undertake an MBBS course at a private university would fail. As submitted by the Respondents, there is a lack of an established causal connection between the alleged treatment and the amount claimed. In any event, I could not be satisfied that the global amount claimed properly reflects the costs of an alternative degree, particularly where there was no evidence about whether the Applicant would receive credit for the years that he passed.
409. [409]
     However, if the Applicant had established that his suspension was on the basis of direct discrimination, I would have been minded to order a global award of $8,000.00 as compensation for distress and humiliation suffered by the Applicant, pursuant to s 209(1)(b) of the ADA.^[342]

Orders

410. [410]
     For the reasons set out above, the complaint lodged by the Applicant on 23 July 2019 against each of the Respondents is dismissed.
411. [411]
     With respect to the question of costs, I order that:

     1. any party seeking an order for costs must file with the Tribunal, and give to the other party a copy of, written submissions as to costs, no longer than eight (8) pages, within 28 days of the date of the Decision;
     2. if written submissions as to costs are filed, the other party must file with the Tribunal, and give to the other party a copy of, written submissions in reply, no longer than eight (8) pages, within 28 days of receipt of the written submissions;
     3. if no written submissions as to costs are filed, there shall be no order as to costs of the proceeding;
     4. if written submissions as to costs are filed, the application for costs will be heard and determined on the papers without an oral hearing.