When the Truth Is on Your Side You Do Fight for It

1.        Introduction

1.1.

In 2015 and 2016, Federal Court of Australia (FCA) dismissed Qizhi Chen vs Monash University case with costs of staggering figures against her. Chen has since been petitioning to the United Nations against the FCA on the grounds of racial discrimination.

1.2.

On 21 September 2021, Australian Parliament released the Sex Discrimination Amendment Bill 2021, which crystal-clearly rectified the law error made by the FCA in Qizhi Chen vs Monash University case.

On 24 September 2021, the United Nations advised Chen that she should seek domestic remedies again.

1.3.

Since then Chen has been seeking judicial review with the High Court of Australia (HCA, M24/2022) against two judgments [2015] FCA 130 and [2016] FCAFC 66, on the grounds of

(1) Racial bias,

(2) Law error,

(3) Unreasonableness, and

(4) Actual Fraud.

2.  Racial Bias

2.1.

This ground is in relation to the incident reported in Monash University Forging Evidence to Mask Sexual Harassment and FCA supporting Monash racial discrimination

2.2.

Chen’s then lawyer stated that

“It is of note that Ms Chen has been studying or working in English speaking countries and regions since 1996. She has worked and published in English at Imperial College London, Monash University and elsewhere, including being employed as a university lecturer. Ms Chen is of Chinese descent. Monash University has unfairly used Ms Chen’s ethnic origin (and language associated with that origin) to form the view that she misunderstood Mr Simon’s sexual advances towards her. This contributed to Monash University’s conclusion that a formal investigation into Ms Chen’s Complaint should not be pursued. In the circumstances, Monash University has engaged in unlawful direct race discrimination, in breach of s9 of the Racial Discrimination Act 1975 (Cth).”

2.3.

The primary judge supported Monash’s racial discriminatory View in his decision [2015] FCA 130, and by that conduct alone, he had engaged in racial discrimination in violation of Article 2 of The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) by undertaking “defend and support racial discrimination by any persons or organisations” which is Monash defendants in this matter.

2.4.

Racial bias is so fundamental that it requires automatic reversal of tainted judgement/decision. Racial bias is “a familiar and recurring evil that, if left unaddressed, would risk system injury to the administration of justice.” [1]  There is a public “imperative to purge racial prejudice from the administration of justice.” [2] The High Court of Australia on behalf of the State Party has the obligation to show to the public that the Australian legal system has a zero tolerance for racial bias.

3.  Law Error

3.1.

To protect Monash defendants, Judge Tracey engineered an error of law that there was no civil victimisation in the Sex Discrimination Act 1984 (Cth) and that the Federal court had no jurisdiction to deal with it.

3.2.

The newly released The Sex Discrimination Amendment Bill 2011 has rectified the above law error, stating that “the existing s94 of the SD Act always intended to provide the basis of civil victimisation.”

3.3.

The authorities listed FCA data base collectively demonstrate that the legal community of this country, including the judge Tracey, had always known “civil victimisation”.

3.4.

It is entirely inappropriate that Monash hired lawyers made up the ‘no civil victimisation’ opinion at odds with almost the whole body of FCA authorities, and that the primary judge Tracey decided accordingly at odds with his own precedent (No.15). The Judge also failed to take into account a mandatory relevant consideration (No.2), and turned a deaf-ear to Chen’s statement that she stood for civil remedies. Hence, Chen has been treated differently and unfairly, on a discriminatory basis.

3.5.

In the above circumstances where the decision of no civil victimisation was made in willful disregard of clearly established case-law body of FCA, the existing legislation the SD Act 1984 (Cth), and Chen’s claim for civil remedies, the severity of this law error amounts to unreasonableness and discrimination, as that decision made could not possibly be made by a court acting in good faith.

3.6.

That Error of Law made by Tracey J in his Judgment [2015] FCA 130 has turned this judgment into a ‘zero-patient’, from which [2016] FCAFC 66, [2016] FCA 661[5] and more cases have stemmed with the same error of law one after another [6]. Ultimately it triggered the new s47A in the SD Amendment Bill 2021. That Law Error made in Chen's case, the only one in 38 years of the SD Act 1984 (Cth), indicates the plain ineffectiveness of justice system in Chen’s case.

4.  Unreasonableness

4.1.

This ground is related to Institutional Sexual Harassment incident (the Laboratory Incident). This incident is a compelling indicator of a concerning work environment at Monash where senior male leaders are aided in seeking sexual favour from female subordinates in the Faculty. This incident alone is sufficient to establish the claim of sexual harassment in Chen’s case. 

4.2.

Monash University and Federal Court of Australia (FCA) have invested huge effort in making the incident:

(1) Flat denial of the defendant before Chen’s audio record emerged.

(2) Monash University attempted three times to erase the incident during court hearing proceedings.

(3) Monash University combined the Laboratory incident with another office incident. The primary judge used the latter as a tool to leave the former out of his judgement [2015] FCA 130.

(4) FCA Full Court masked that leave-out in judgment FCAFC 66 at [141]. The judges did so by making a plainly false finding.

 (5) Most recently, the Response filed by Monash University on 16-08-2022 in the judicial review proceedings, Monash incorrectly denies the admission of the Lab incident by the primary court; and

(6) Misleadingly combined the Laboratory incident with the office incident, again, but in a new way, so that the latter could be used as a tool to get rid of the former, a ‘hot potato’.

(7) Most lately the Justice Keane left this the laboratory incident out of his decision, again.

4.3.

The conducts of the FCA judges amount to unreasonableness, because (1) no fair-minded, impartial courts would drop the laboratory incident (institutional sexual harassment) or ignore the irrefutable audio-recording evidence of the event; and (2) the finding made by [2016] FCAFC 66 is plainly false and groundless.

5. Actual Fraud

5.1.

This ground is in relation to the incident reported in Monash University Forging Evidence to Mask Sexual Harassment and FCA supporting Monash racial discrimination.

5.2.

The standard of proving actual fraud requires evidence of an intention to knowingly mislead or deceive.

5.3.

Monash investigator (Norena Kavanagh) recorded the following note in her report: 

QC said ‘ you look good ’;  no need to adjust tie[7]  (the Note)

in a table-column entitled with "Details provided by Dr Chen in writing and at interview held on 22 February 2012".

5.4.

After Qizhi Chen’s audio record of the interview emerged, Kavanagh admitted to the effect that she knew the second part of the Note was not Chen’s words (Exhibit F8 T1017.15-17). Her knowing was also indicated by the Note itself where there is ‘  ’ on the first part, and no ‘  ’ on the second part. This difference indicates that at that very moment when she was writing down the second part (without ‘  ’) beside the first part (with ‘  ’) of the Note in that table-column, Kavanagh knew exactly that the second part of the Note was not Chen’s words and was thus misleading in that table-column.