DEC-S2012-027- Full Case Report

Equal Status Acts 2000-2011

Decision DEC-S2012-027

PARTIES

Ihor Davydchak

v.

Central Applications Office

File Reference: ES/2010/004 & ES/2012/083
Date of Issue: 16/07/2012

Key words
Equal Status Act, 2000 - 2011, Direct discrimination, Section 3(1) - less favourable treatment, Race - 3(2)(h), victimisation - 3(2)(j), provision of a service -Section 5(1), education - Section 7(2), statutory time limits - section 21(2), section 38A - burden of proof, no prima facie case.

Delegation under Equal Status Acts, 2000-2011

The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Act 2000-2011 on the 12th January 2010, 25th of January 2010 on 13th March 2010 and on the 13th April 2012. On the 3rd October 2011 in accordance with his powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, the Director delegated the case to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts. On this date my investigation commenced. A submission was received from the complainant on the 25th of January 2010 and the 24th of October 2011 and from the respondent on the 1st July 2010 and 10th October 2011. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 26th October 2011 and the 28th November 2011. Further correspondence and a further complaint form were referred by the complainant on the 13th of April 2012 and this complaint was investigated in conjunction with the original referrals. The final correspondence in relation to all the complaints was received on the 15th June 2012.

1. Dispute

1.1 The dispute concerns a claim by Ihor Davydchak (hereinafter the complainant) that he was discriminated against and victimised on the race ground in relation to the services provided by the CAO. The complainant alleges that the respondent discriminated against him in terms of Sections 3(1)(a) and 3(2)(h) and (j) of the Equal Status and contrary to Section 7(2) of that Act.

2 Background

2.1 In January 2007 the Minister for Education and Science introduced a new Graduate Medical Education Programme (GEM). The programme was first established in the University of Limerick and the Royal College of Surgeons in Ireland and for the years 2008 onwards the graduate programme was also run in UCD and UCC. The application process is through the CAO. Entry to the programme is open to candidates who hold or expect to hold a minimum of a 2:1 (second class honours) degree (NFQ level 8) or equivalent. Candidates also had to undertake a Graduate Medical School Admission Test (GMSAT) the score is used to select candidates for the programme.

3 Complainant's Case

3.1 The complainant, a Ukraine national, referred a complaint to the Equality Tribunal claiming that the respondent discriminated against him in relation to his applications for Graduate Entry to Medicine. The complainant first applied in 2007 through the CAO to the University of Limerick but he was not successful. He said during his evidence that he had no complaint about his 2007 application and accepted that he did not get a place because his score (GMSAT) was too low. However subsequent to the hearing and on the 13th of April 2012 he referred a complaint about the process in 2007 having sought information through Freedom of Information. The complainant submits the CAO cannot provide proof that he was put on the waiting list in 2007 and he has to assume therefore he was not put on the list as required by the rules. He submits that the rules are clear that any person who meets the requirements for the course have to be put on the waiting list and allowed to compete for places.

3.2 The complainant applied again in 2008 to all the Universities (UL, UCD RCSI, and UCC) offering the GEM programme and again he failed to get admission to the programme. He said that during March to June that he had numerous communications with the respondent about his application. He received a letter dated 8th April 2008 stating that he did not meet the minimum entry requirement of a NFQ level 8 honours degree at 2:1 level or an equivalent. The complainant submitted his Ukraine qualifications and also a letter from the National Qualification Authority stating his qualifications were considered comparable to Honours Bachelor Degree which is level 8 on the NFQ and a comparability statement from UK NARIC which indicated his qualifications were comparable to a British Bachelor degree standard. He said that he believed that the issues around his qualifications were resolved. He subsequently learned that only one institution UL accepted that his Ukraine qualifications met the standard for entry to the GEM programme. UL decided, because they had accepted his qualifications in 2007 as equivalent to a 2:1 level 8, that they would accept him for 2008. The other Institutions determined that his qualifications were not listed as comparable to an honours degree in UK NARIC. The complainant said that he received information and e-mails pertaining to his application under the Freedom of Information. He believes that the respondent did not pass on the information he submitted to all the Institutions and this was the reason his qualifications were rejected.

3.3 The complainant also submits that information about his residency status in Ireland was not provided to the Institutions either. UCC asked him to verify his EU fees status on the 14th March 2008 and he complied with the request. He got an offer around the beginning of July 2008 of a course in genetics through the CAO from UCC. Having not heard from the respondent about the graduate medical programme, he called on the 29th of August 2008 and he was informed that his application was turned down in the middle of July 2008 because the Universities believed he did not have EU-fees status. The complainant submits he had EU-fees status since 2005 because he has permission to remain in Ireland. A higher fee structure applies to applicants who do not have EU status and they are required to apply directly to the Colleges. The complainant sent in documentation to the respondent to verify his status. He said that there was a breakdown in communications with the CAO who failed to inform him that there was a problem with his EU fee status.

3.4 In relation to his 2009 application, the complainant said that he attended at the CAO office in Galway on the 1st September 2009 and he spoke to the General Manager (GM) who told him that he had been deemed ineligible and he was not on the list for the next round of offers. He also said that he could not be put back on the list except with the agreement of the Institutions. He said that he was told by the GM of the CAO that he was a special case and he was on a special list. He believes that this was discriminatory and that he was not treated in the same manner as other applicants. The complainant submits that he was discriminated against by the respondent in the way his applications were handled and information passed to the Institutions. He also submitted that the CAO allowed a committee of the Institutions to assess his applications even though he has not applied for a place in some of them.

4 Respondent's Case

4.1 The respondent denies that the complainant was discriminated against or victimised on the race ground. The CAO is an organization which was founded in 1976 by the higher education institutions. The HEIs delegated to the CAO the task of processing centrally applications for the admission of students to first year courses. The purpose of the CAO is to process applications centrally on behalf of the HEIs in a fair and efficient manner and in accordance with the published rules and regulations contained in the CAO Handbook. The HEIs retain the function of making all decisions on applications for admission to college. The CAO application season starts in November for entry to the institutions the following September. Applications are mainly online but additional information such as birth certificates marriage certificates foreign examination details are sent in by post and scanned into the system. When the application process closes on the 1st of February the data is transferred from the web server to the main computers to which the Higher Education Institutions have access. The Institutions evaluate the applications and provide a rating for each applicant for each course to the CAO and the CAO has no input into that process. The rating is a six digit score which is used to rank applicants for the same course and is usually made up of an examination score such as the Leaving Certificate points, GCE points or the GMSAT points followed by a random number which is a computer generated number and distinguishes applicants on the same points. The random number is generated by the CAO for every applicant and prior to the order of merit being drawn up. It is used to offer places where there is a tie on points and the number of applicants exceeded the number of places left on the course. The places are allocated to the applicants with the higher random number. If the Institution deems an applicant ineligible for a particular course they are given a rating of 000000. The Institutions than instruct the CAO to offer places in order of merit. Applicants are offered the highest preference course to which they are entitled to from the waiting list in accordance with the order of merit. Waiting lists can be added at any time during the season if the applicant presents to the Institutions through the CAO material/documents which make them eligible for the particular course and they are put on the list in order of merit in accordance with the rating. The first round of offers is called the zero round and the next is round one and offers continue until all the places on the particular course are filled or until the end of the CAO season in mid October.

4.2 The GEM Programme first introduced in 2007 is a restricted course. Applications must be made to the CAO before the 1st February and applicants must be EU residents. Applicants from outside the EU must apply directly to the colleges. In 2007 GEM course was offered by RCSI and UL. The complainant submitted his application in 2007, but he did not submit any evidence of his EU status to the CAO but he did provide it to UL at a later time. Both Institutions deemed him eligible according to their criteria and he was put on the waiting list. The complainant's GMSAT score was 54. The score for entry to the RCSI were 58 and to UL 59 and therefore the complainant was not offered a place. He was offered a place in Science in UCD.

4.3 In 2008 the complainant applied to the four institutions running the graduate medical course, UL, RCSI. UCD and UCC. He did not submit evidence of his EU status with his application in February. The CAO wrote to the complainant in March informing him that he had applied for the Graduate Medicine and reminding him to forward to the CAO proof of his eligibility in relation to his educational qualifications i.e. level 8 honours degree at 2:1 level or equivalent. He was also informed that he would be ranked in accordance with his GMSAT result. The 4 Institutions decided to have a common entry standard for the graduate medical programme and they established a commission with representatives from the four institutions to review the applications. The complainant was deemed ineligible for the course by this commission. The CAO wrote to him on the 8th of April 2008 to inform him that the institutions concerned deemed him ineligible because his educational qualifications did not meet the minimum entry requirements. A further letter issued to him on the 9th of May reminding him to submit evidence of his qualifications by the 15th of July and asking him if the GMSAT score on file was correct. The complainant appealed the decision by letter dated the 26th of June and sent in copies of his qualifications and letters from the NQAI and NARIC regarding his qualifications. These documents were scanned and attached to his application. The commission met again on July 18th to review all the documentation submitted by the applicants who were deemed ineligible at the initial meeting. Some were now deemed eligible but others including the complainant were still deemed ineligible. The CAO then issued a standard letter which was approved by the commission to all the ineligible applicants informing them of this fact and reminding them of the requirements for the course.

4.4 At this point the CAO created a rating for each applicant regardless of their eligibility. The computer generates the random number for each institution and this was appended to the GMSAT score and this became the rating for each institution. In the complainant's case his GMSAT was 055 and this random number was 551for UL, 762 for UCC, 970 for RCSI and 998 for UCD. The other institutions had a higher GMSAT score than UL. Therefore the complainant's rating for UL was 055551. After this process all the ineligible applicants for the graduate medical course were then given a zero rating.

4.5 University of Limerick instructed the CAO to issue 54 offers in the round 0 offer of the 1st August 2008. The last person offered a place in this round had a rating of 055552 (GAMSAT score of 055 and a random number of 552). In the round 0 offer for mature applicants the complainant received an offer for Genetics in UCC. The notification form which issued to the complainant in respect of this course also listed the other courses which he had applied for. There was an asterisk symbol beside the graduate medical courses. The notes accompanying the notification stated at C "If the symbol* appears to the right of a Course Code, the higher institution in question considers you to be ineligible for admission to that course". The CAO submitted therefore that the complainant was notified that he was ineligible for the course in early July 2008 and if he had read the CAO Handbook and the notes which accompanied the notification letter he would have known that the symbol meant he was ineligible. The CAO submitted that 11 applicants who had been deemed ineligible sent in supporting documentation and they were now deemed eligible and placed on the waiting list in accordance with their score and UL authorised that 3 of them should be offered places in round one in accordance with the order of merit. Some more applicants sent in supporting documentation and were now deemed eligible for the GEM course and they were also placed on the list for the round 2 offer and 3 more applicants were offered places. On the 29th of August the complainant sent in documentation about his EU fee status and other documentation which was scanned into the system. The CAO sent an email to the admission officers of the 4 universities asking them to review the complainant's application. UL requested the CAO to reinstate the complainant's rating as generated on the 18th of July 2008 and the CAO complied. The complainant was now on the waiting list for the graduate medical course in Limerick (LM101). UL authorized the CAO to make 5 additional offers for this course before the end of the season and all of these offers were made to applicants with a higher GMSAT score of 056 than the complainant's score of 055 and he was not offered a place.

4.6 In 2009 the complainant applied through the CAO for the graduate medical course to UL only. The CAO wrote to the complainant by standard letter on the 18th of May 2009 about his GMSAT score and reminding him to send in any extra supporting document re his qualifications by the 15th July 2009. The institutions followed the same procedures as 2008 and a committee of the institutions reviewed the applications and informed the CAO about the eligible applicants. The complainant was deemed ineligible and the CAO wrote to the complainant on the 17th of July informing him that he had not met the minimum academic qualifications. The complainant appealed this decision by letter to the CAO dated the 23rd July 2009 and it was scanned into the system on the 24th of July. The CAO on the instructions of the Institutions created a rating for the applicants. The complainant's rating was 055277 but he was deemed ineligible by the institutions therefore this went back to zero and he was not placed on the waiting list. After the round 1 offer applicants who had not received an offer were sent a statement of their application along with a letter explaining that the institutions had not authorised them to issue an offer and explaining if an asterisk appeared to the right of the course code the institutions had deemed them ineligible for the course and that they should contact the admission office. The CAO submitted that UL deemed his qualifications eligible based on the fact the they had accepted his qualifications in 2007 and they were asked to reinsert his rating, which was generated on the 19th of July, when or if the score required for entry in Limerick reached 055. The complainant was not offered a place by UL because his GMSAT score was 055 and 056 was the rating required and not all applicants on 056 got in.

4.7 The General Manager of the CAO submitted that the complainant was not discriminated against on the race ground or victimised. He submitted that it was the various HEIs who deemed the complainant ineligible for the graduate medical course and the CAO acted on the instructions of these institutions. He said that the CAO Handbook provides all the procedures an applicant should follow in order to make a correct application to the CAO. He denied that any material submitted to the CAO by the complainant was not passed on to the Institutions. He said that the complainant did not lose out on any offer for graduate medicine in either of the three years in question.

5. Conclusion of Equality Officer

5.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3(1)(a) and 3(2)(h) and j of the Equal Status Act and in terms of Section 5(1) of that Act. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
Preliminary Issues
Statutory Time Limits
The first matter I have to consider is whether the complaint has been notified to the respondent within 2 months of the prohibited conduct in accordance with section 21(2) of the Acts and referred to the Director within the statutory period. Section 21 provides:
"(2) Before seeking redress under this section the complainant --

(a) shall, within 2 months after the prohibited conduct is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of --

(i) the nature of the allegation,

(ii) the complainant's intention, if not satisfied with the respondent's response to the allegation, to seek redress under this Act,

and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

(2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.

(3) (a) On application by a complainant the Director or, as the case may be, the Circuit Court may --

(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction, and where such a direction is given, this Part shall have effect accordingly.

(b) In deciding whether to give a direction under paragraph (a) (ii) the Director or, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including --

(i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii) the extent of any risk of prejudice to the respondent's ability to deal adequately with the complaint."

5.2 The respondent submitted that the complainant's complaint of discrimination which he alleged started with his 2007 application and was repeated in 2008 and 2009 was notified outside the statutory 2 months notification period. The complainant submitted that the CAO misrepresented the facts to him in relation to the reasons he was not successful in his applications. He applied for information under FOI to the CAO and all the Institutions. The CAO is a private company and is not subject to FOI and it did not provide the information requested. (See Judgment of the Supreme Court delivered on the 13th of May 2010 in the case of Central Applications Office Limited and The Minister for Community, Rural and Gaeltacht Affairs, Ireland and the Attorney General). The complainant received information from UL on the 15th of November 2009 which led him to believe that he was treated in a discriminatory manner. He said that the respondent made an incorrect decision about his EU fee status even though at the time information was available in the CAO that he had EU status.

5.3 The complainant has put forward his three applications (2007, 2008 and 2009) to the CAO and submits that he was discriminated against and victimised on the race ground in relation to his applications when he failed to secure a place on the graduate medicine programme. Firstly I will consider the 2008 and 2009 referrals and I will deal with the 2007 referral separately given that it was only received in April 2012 and after the completion of the hearing in relation to the other applications. I have considered the evidence presented in relation to these two years and having regard to section 21 cited above, I am satisfied that each of these alleged incidents of discrimination in relation to applications are connected and intertwined in that the complainant was seeking the same service from the respondent on each occasion i.e. access to the graduate medical course and he believes that the CAO operated a discriminatory policy against him. Section 21, in my opinion, envisages an act of alleged discrimination extending over a period of time, that could be either a once off incident or a number of incidents, and the date of notification to the respondent is the date of the last occurrence or the end of the period The Act clearly provides that where the alleged prohibited conduct extends over a period of time that the 2 month time limit for serving the notification in accordance with section 21 runs from the last occurrence or the end of the period.

5.4 Therefore I will examine the last application and determine if the notification complies with the statutory 2 month period. The complainant notified the respondent of the alleged discrimination on the 24th of December 2009 by Form ES 1. The CAO offer season ended on the 14th of October 2009 and the complainant did not get an offer of a place so this date, in my opinion, is the date the 2 month notification period started to run and therefore it ended on the 13th of December 2009. Therefore the notification of the 24th of December is outside the statutory period. In a letter to the Equality Tribunal of the 15th of January 2010 the complainant requested the Director to dispense with the notification requirement in accordance with section 21(3)(a)(ii). In considering this application I note that the complainant did serve the notification so I am going to consider his application under section 21(3)(a)(i) i.e. was there reasonable cause for the delay in serving the notification on the respondent. The complainant states that he was in ongoing communication with the respondent for a considerable period of time about his application and he appealed the decision of the Institutions that he did not meet the minimum academic requirements contained in the CAO letter of the 23 July 2009. He also submitted that the letter of the 9th of November 2009 received following his appeal of an FOI request to UL was his first indication that he may have been discriminated against. In deciding whether I should extend the statutory notification period to 4 months I have taken into consideration the aforementioned letters of the 9th of November, the length of the delay in the notification which was less than 2 weeks, which is not excessive, and the fact that the respondent has not been prejudiced by the delay because he was aware of the facts of the case particularly from the letter of the 23rd July 2009 and other contacts with the complainant. For these reasons I have extended the notification period to four months. The complaint was referred to the Tribunal on the 4th of March 2010 and within the six months time for referring a complaint. Therefore the complaints are admissible and I have jurisdiction to hear the substantive case in relation to the 2008 and 2009 applications.

5.5 In relation to 2007 referral received on the 13th of April 2012 and notified to the respondent on the 12th of February 2012, the complainant said during the course of the hearings of the above referrals that he had no complaint about the way his application was treated and he understood that he did not get a place on the course because his GMSAT score was too low. After the hearing and before the investigation was completed and the decision issued the complainant notified the respondent on 12th February 2012 that he was complaining about discrimination and harassment on the race ground in relation to his 2007 application for the graduate medical programme. He then referred the complaint to the Director on the 13th of April 2012 and requested an extension of time in relation to the notification and referral on the basis that the facts around his 2007 application were misrepresented to him. This complaint was notified to the respondent and a number of written submissions were provided by both parties. The complainant submitted that following the experience he had with his applications in 2008 and 2009 he began to have doubts whether the explanation provided in relation to 2007 were true. He requested information under FOI in August 2009 and the CAO informed him that they were not covered by the CAO. He then requested information from UL on waiting lists and round offers for 2007 and he said that despite UL having information about his 2008 and 2009 application they failed to release any information to him for 2007. He said that he appealed this decision and this was rejected by UL on the 14th of December 2011 on the basis that the lists did not exist. He said that from 2007 to 2012 the CAO always assured him that he was not discriminated against and that his application was treated in the same way as any other applicant and that it was only after the rejection of his request under FOI on the 14th of December 2011for information in relation to 2007 that he was in a position to conclude that he was discriminated against and that he would refer a complaint.

5.6 Having reviewed the documentation sent to the Tribunal, I am satisfied that no new information came into the complainant's possession on the 14th of December 2011 to justify granting an extension of the statutory time limits. He was informed on that day that UL did not have a copy of the list of people who were offered places in each round in 2007. I am fully satisfied that if the complainant intended to complain about his 2007 application he would have included it in the referral of the complaints in relation to his 2008 and 2009 applications. Or that at the very least he would have raised his complaint during the hearing or the copious submissions he made to the Tribunal during the course of the investigation. In fact he accepted during the course of the hearing that he was not complaining about the 2007 application. He knew that his qualifications were accepted by both UL and RCSI but his GAMSAT score was too low and this was the reason he did not receive an offer. I note that in his submission received by the Tribunal dated 24th October 2011 he refers to the 2007 application and he sets out the contacts he had with the CAO and UL in relation to his residency status and the fact that UL accepted his qualifications and status and that he was an eligible applicant for graduate medical programme but he was unsuccessful because of his GMSAT score. The complainant's submission in relation to 2007 seems to be suggesting that the CAO never created a waiting list with his name on it as an eligible applicant for the course. I am satisfied that the complainant has failed to establish any reasonable cause for the delay in notifying this complaint to the respondent and referring the matter to the Director. Therefore I find the referral in relation to the 2007 application inadmissible.

5.7 Discriminatory Treatment - Race
Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
"On any of the grounds specified... (in this case the race ground).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(h) provides that: as between any two persons, the discriminatory grounds ... are ... that they are of different race, colour, nationality or ethnic or national origins (the "ground of race")," and

Section 5. -- (1) provides: " A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public".
And Section 7 provides:
"7. -- (1) In this section ''educational establishment'' means a preschool service within the meaning of Part VII of the Child Care Act, 1991, a primary or post-primary school, an institution providing adult, continuing or further education, or a university or any other third-level or higher-level institution, whether or not supported by public funds.

(2) An educational establishment shall not discriminate in relation to --

(a) the admission or the terms or conditions of admission of a person as a student to the establishment,

(b) the access of a student to any course, facility or benefit provided by the establishment,

(c) any other term or condition of participation in the establishment by a student, or

(d) the expulsion of a student from the establishment or any other sanction against the student."

The first matter I have to decide is whether I should consider the complaint under Section 5 or Section 7. The complainant is complaining about the services provided to access an educational course. However the CAO is not an educational establishment but it was set up by the HEIs to provide a service in relation to the admission of first year students and was subsequently delegated the function of processing applicants for the graduate medical programme on behalf of the Institutions providing the course. I am satisfied therefore that the CAO provides a service and its functions comes within the scope of Section 5(1) of the Acts.

The burden of proof is set out in Section 38A which provides:
38A. -- (1)" Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary."

5.8 Therefore a person making an allegation of discrimination under the Equal Status Acts must first establish a prima facie case of discriminatory treatment. This requires the complainant to establish facts from which it can be presumed that he was discriminated against because of his nationality. Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination. In examining all the evidence at the hearing and the considerable amount of documentation submitted by the complainant it appears to me that the complaint is about the following in relation to his applications for graduate medicine in 2008 and 2009:
(i)The respondent's application procedures made it more difficult for the complainant to satisfy the requirement of EU fee status e.g. the online application form asked about his nationality and country of birth and did not give him an opportunity to provide proof of his EU fees status. (ii) He was not informed by the respondent that this was the reason his application was turned down. (iii) The notification he received from the CAO turning down his application was unclear and stated he did not meet the academic requirement. (iv) In 2008 the CAO allowed applicants to submit further information after the cut off date and they were then deemed eligible and went ahead of him on the waiting list. (v) Despite having been a 2:1 honours degree his application was refused due to the absence of such a degree and the respondent provided no proof that he was on the waiting list. (vi) He was treated as a special case by the respondent and was not put on the order of waiting merit list in 2009. (vii) The CAO allowed the institutions to establish a commission to review the applications for graduate medicine and even when he only applied to UL the whole of this commission deliberated on his application.

5.9 The respondent's case is that the Institutions review the applications and make all of the decisions on an applicants eligibility and on whether they should be put on to the waiting list. The duty of the CAO is to implement the decisions made. The respondent submits that all of the information sent in by the complainant was uploaded to the website for decision by the Institutions and rejects the complainant's contention that information about the complainant's EU fee status or his academic qualifications were not made available. The CAO submitted that each year an applicant applies any addition supporting information must sent into the office as they do not keep information on applicants once the season of offers have come to an end. The respondent also submitted all of the procedures are set out very clearly in the Handbook and applicants are clearly instructed to read it and if they have any queries about their status or qualifications they should contact the Admissions Office of the relevant Institution. The CAO submitted that the graduate medical course was a new course and in the earlier years the letters sent to ineligible applicants may not have been as clear as they should have been, but each year they have together with the Institutions sought to improve the information in the letters. The CAO said that the complainant's academic qualifications were accepted by UL and RCSI in 2007, by UL in 2008 and 2009 but his GMSAT score was too low and he failed to get a place. In 2009 UCD, RCSI and UCC did not accept his Ukraine qualification as a 2:1 honours Bachelors Degree.

5.10 In order for the complainant to establish that he was discriminated against on the race ground he has to submit some evidence that he was treated less favourably than an Irish person or a person of a different nationality was treated in similar circumstances. I note that the CAO deals with about 78,000 applicants for 1,280 courses in 43 third level institutions each year. I also note that in 2008 the CAO had 551 applications for graduate medicines of these 393 were from Irish applicants and 114 were from applicants in 12 EU countries and 44 applicants from 27 countries outside the EU. In 2009 they had 582 applicant of these 460 were Irish, 68 from 12 EU countries and 54 applicants from 22 countries from outside the EU. The complainant did not produce any evidence to support his case that he was treated less favourably than any of these applicants. I am satisfied that applicants who gave their nationality on the CAO form from a country outside the EU were required to provide evidence to the CAO that they qualified for EU fee status otherwise the Institutions would have considered their applications ineligible. It is up to the complainant to provide the information and he knew from 2007 application that evidence of his EU status was required by the Institutions and it was not the responsibility of the CAO to ensure that the complainant provided this information. It is clear the CAO functions are to manage the application process on behalf of the Institutions and implement their decision in relation to offering places to applicants they deem eligible and qualified. It is clear from the evidence that the complainant failed to follow the procedures as set out in the CAO Handbook by providing all the information relevant and necessary for his application at the earliest opportunity and it is clear that the CAO accepted information from him and other applicants after round zero offers and he was put on to the waiting list for UL in 2008. He was again put on the waiting list for 2009 on the instructions of UL when he brought the information to clarify his eligibility to the attention of UL.

5.11 Having examined all the evidence presented to me including all the documentation in relation to the applications for graduate medicine, I can find no evidence that the treatment of the complainant's applications related in any way to his nationality. I am not satisfied that the complainant has presented any evidence from which I could conclude that he was treated less favourably than an Irish applicant or an applicant with EU status was treated in similar circumstances. I am satisfied that the complainant's application for the GEM course in each of the years were unsuccessful because his GMSAT score was too low. I find therefore that the complainants have not adduced any facts from which discrimination can be inferred. The Labour Court, in examining the circumstances in which the probative burden of proof applies in employment equality cases held in the case Melbury Developments and Valpeters (Det. No. EA AO917) as follows:
"Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule."
I am satisfied that the above reasoning of the Labour Court is applicable to the case herein, in relation to the burden of proof as both Acts have similar provisions. The complainant has made assertions unsupported by any evidence and he has not produced any facts from which discrimination can be inferred. I find therefore the complainant has failed to establish a prima facie case of discriminatory treatment on the race ground.

5.12 The complainant also submitted that he was victimised by the respondent in terms of the manner in which he was treated S. 3(2)(j) of the ES Acts defines victimisation as
"(j) that one --

(i) has in good faith applied for any determination or redress provided for in Part II or III,

(ii) has attended as a witness before the Authority, the Director or a court in connection with any inquiry or proceedings under this Act,

(iii) has given evidence in any criminal proceedings under this Act,

(iv) has opposed by lawful means an act which is unlawful under this Act, or

(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv), and the other has not (the ''victimisation ground'')".
Having regard to the evidence adduced, I find that I have not been presented with any evidence from which I could conclude that the complainant has been subjected to victimisation within the meaning of Section 3(2)(j) of the Equal Status Acts. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the victimisation ground.
In the interest of clarity and notwithstanding of my finding of inadmissibility above at paragraph 5.6 above in relation to the 2007 referral, I am satisfied that there was no discrimination or harassment whatsoever by the CAO on the grounds of race in relation to the complainant's application for the GEM programme in 2007.
6. Decision
6.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 25(4) of the Equal Status Acts, 2000 to 2011. I find that:

(i) the respondent did not discriminate against the complainant on the race ground pursuant to sections 3(1) and 3(2)(h) of the Acts in relation to a service and contrary to section 5(1) of the Acts.

(ii) the respondent did not victimise the complainant pursuant to sections 3(1) and 3(2)(j) of the Acts.
(iii) the complaint of discriminatory treatment and harassment on the race ground in relation to the 2007 application to the CAO was notified and referred outside the statutory time limits.

___________________
Marian Duffy
Equality Officer
16th July 2012