Shuting Zhang v Athlone Institute of Technology

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 14 June 2013
• Neutral Citation: [2013] IEHC 390
• Court: High Court
• Date: 14 June 2013

Zhang v Athlone Institute of Technology

JUDICIAL REVIEW

BETWEEN

SHUTING ZHANG

APPLICANT

AND

ATHLONE INSTITUTE OF TECHNOLOGY

RESPONDENT

[2013] IEHC 390

[339 J.R./2013]

THE HIGH COURT

Judicial review - Education - Schools - Disciplinary proceedings - Fair procedures - Examinations - Regulations and procedures - Appeal - Fair procedures - Regional Technical colleges Act 1992

Facts: The applicant was a Chinese national and a final year student at the Athlone Institute of Technology. On the 13 ^th December 2012, the applicant was present at the premises of the respondent to sit her exam in Financial Management. Prior to the exam commencing, Ms. Valerie Ryan, the invigilator, announced to the applicant and the rest of the students present that all notes and bags had to be placed at the top of the hall, and all mobile phones had to be placed underneath the students” desks. The applicant subsequently placed her notes under her desk along with her mobile phone. The applicant argued that because of the noise in the hall and her limited understanding of the English language, she had misinterpreted Ms. Ryan”s instructions. When the applicant completed her exam, Ms. Ryan noticed the notes under the desk, asked the applicant to remain behind, and then informed her that she believed examination regulations had been broken. Ms. Ryan informed the respondent of the alleged breach. The matter was dealt with at a hearing on the 11th January by the Academic Registrar, Dr. Joseph Ryan, who upheld the alleged breach and ruled that the examination mark would be cancelled with the applicant required to repeat the exam. The applicant”s solicitor then wrote to the respondent alleging that this ruling was unfair due to Dr. Ryan being the husband of Ms. Ryan. The respondent subsequently set aside that decision and decided that there would be a fresh hearing before a person unconnected with the respondent.

The applicant”s solicitors were subsequently informed the new hearing would be on the 12 ^th April 2013. The applicant”s solicitors alleged that they were notified at short notice and so they wrote to the respondent”s solicitor asking what form the hearing would take on the 9th April 2013 so they could advise whether they were in a position to proceed. On the 11th April 2013, the respondent”s solicitor wrote back advising that at that stage there would only be a hearing as to whether or not there was a prima facie case for the applicant to answer in respect of the complaint of a breach of examination regulations. However, following the hearing, the applicant received confirmation that the acting Registrar had instead upheld the breach and imposed a penalty on the applicant.

The applicant brought judicial review proceeding seeking an order of certiorari quashing the acting Registrar”s decision proceedings arguing that her right to fair procedures had been breached. Under the relevant examination regulations and procedures of the respondent, it was clear that where there was an allegation of unfair practice, the Registrar first had to consider whether there was a prima facie case; if such a case was established, it then had to be decided whether it could be dealt with by the Registrar or whether it was appropriate to refer the case directly to a Committee of Inquiry. However, it was alleged that in determining whether a prima facie case existed, the Registrar was to invite the concerned candidate to a formal meeting to discuss the allegations before reaching a decision. It was said that the type of hearing that the respondent subjected the applicant to was outside its regulations and procedures.

The respondent argued that the applicant had accepted she had placed notes under her desk therefore there had been a clear breach of the exam regulations, even if she had misinterpreted the instructions given. It was also said that because the applicant had agreed to the respondent”s regulations at registration, her rights derived from a private contract therefore her case was not amenable to judicial review.

Held by Dunne J that if the court upheld the applicant”s contention that the respondent breached their own regulations in the manner alleged, the applicant”s right to fair procedures would have breached given that the outcome of the hearing reflected on her reputation, honesty and her academic and professional future.

It was further held that on consideration of the available evidence, the court was satisfied that the applicant had been given the clear impression that the purpose of the hearing of the 12 ^th April 2013 was only to establish whether a prima facie case existed and not to adjudicate on whether there had been a breach of the exam regulations. The respondent”s own regulations and procedures envisaged a two stage process which clearly not been adhered to. Even if the hearing had only established whether a prima facie case existed, the respondent”s regulations and procedures did not allow for a scenario where the prima facie issue would be determined at a hearing such as the one that had been held.

In regards to the respondent”s argument that the case was not amenable to judicial review, it was held that because the respondent powers in making regulations derived from Regional Technical colleges Act 1992, and because it had been exercising a disciplinary function in reliance of these regulations, the decision of acting Registrar on behalf of the respondent was amenable to judicial review.

Order of certiorari quashing the decision of the respondent.

HAUGHEY, IN RE 1971 IR 217

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RAJAH v ROYAL COLLEGE OF SURGEONS 1994 1 IR 384

QUINN v HONOURABLE SOCIETY OF KINGS INNS 2004 4 IR 344

GEOGHEGAN v INSTITUTE OF CHARTERED ACCOUNTANTS 1995 3 IR 86

EOGAN v UNIVERSITY COLLEGE DUBLIN 1996 1 IR 390

MCKENNA v O CIARAIN & WICKLOW VOCATIONAL EDUCATIONAL COMMITTEE UNREP O CAOIMH 30.11.2001 2001/16/4515

O'DONNELL v TIPPERARY (SOUTH RIDING) CO COUNCIL 2005 2 IR 483 2005 2 ILRM 168 2005/47/9846 2005 IESC 18

1 JUDGMENT of Ms. Justice Dunne delivered the 14th day of June 2013

2 The applicant in this case is in her third and final year as a student at the Athlone Institute of Technology. She attended the premises of the respondent on the 13 ^th December, 2012, to sit her third year exam in Financial Management on the 13 ^th December, 2012. The examination was scheduled to take place at 9.30. When the students arrived for the purpose of sitting their examination it was not possible to commence the exam at the appointed time as was explained by Ms. Valerie Ryan, the invigilator, because when she arrived there was no other invigilator and she, Ms. Ryan, had to go and get the exam papers and set out the exam hall. Consequently the exam started some 15 to 20 minutes after the time appointed.

3 It is common case that once the students were admitted to the exam hall, an announcement was made by Ms. Ryan, the invigilator, to the effect that all bags and notes were to be left at the top of the exam hall and all mobile phones were to be placed on the ground under the student's desks. It is the applicant's case that she did not hear this announcement correctly as a result of noise, confusion caused by the late commencement of the exam and her "somewhat limited English". There is no dispute between the parties that the applicant placed her notes and mobile phone under her desk. Following her completion of the exam she signalled to a second invigilator, a Mr. Shaw, and handed in her answer booklet to him. She got up, gathered her coat and other belongings, including the notes and mobile, from the ground beneath her desk. At that point Ms. Ryan approached her, took her notes and exam paper and demanded that the applicant stay in the exam hall. The applicant was informed that Ms. Ryan was of the view that there had been a breach of the examination regulations on the part of the applicant and gave her a form alleging such breach of examination regulations. The applicant completed part of that document setting out her explanation as to what had occurred. She explained:

"At the beginning of the exam I take my notes and mobile phone on the floor and I never remove it and at 11.35 the Mr take my paper, so I take my phone and note, but the Mrs thinks I have copyed (sic) the note and I have to explain with her. But she doesn't believe me. I never copy and everybody saw I didn't remove the note to".

4 I should note at this point that the applicant is a Chinese national and English is not her first language. Nevertheless, the course she is attending at the Athlone Institute of Technology is a course taught through English.

5 Subsequently, Ms. Ryan completed the breach of the examination regulations form and the issue was dealt with by the respondent at a hearing on the 11 ^th January by the Academic Registrar, Dr. Joseph Ryan. In a letter of the 14 ^th January, 2013, he wrote to the applicant in the following terms:-

"Thank you for attending the hearing which was held on Friday 11 ^th January at 2.00 pm. I am to inform you officially that the finding in respect of your case is that the alleged breach of examination regulations is upheld. The sanction imposed is as follows:-"

6 The cancellation of the candidate's marks in Financial Management.

7 The candidate is to repeat this module no earlier than autumn 2013.

8 This constitutes a second sitting.…"

9 A letter was then written on behalf of the applicant by Barry and Company, Solicitors on the 23 ^rd January, 2013. Mr. Barry in the course or that letter set out the position of the applicant in relation to the events that occurred in the course of the morning of the 13 ^th December, 2012. More particularly, a complaint was made as to the determination by the respondent which was set out in the letter...