Tewfik Fassi v Dublin City University
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan |
| Judgment Date | 29 January 2015 |
| Neutral Citation | [2015] IEHC 38 |
| Court | High Court |
| Date | 29 January 2015 |
[2015] IEHC 38
THE HIGH COURT
BETWEEN
AND
O'DONNELL v TIPPERARY (SOUTH RIDING) CO COUNCIL 2005 2 IR 483 2005 2 ILRM 168 2005/47/9846 2005 IESC 18
DUBLIN CITY UNIVERSITY ACT 1989
UNIVERSITIES ACT 1997
EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S1(1)
R v HIGHER EDUCATION FUNDING COUNCIL, EX PARTE INSTITUTE OF DENTAL SURGERY 1994 1 AER 651 1994 1 WLR 242
RAJAH v ROYAL COLLEGE OF SURGEONS 1994 1 IR 384 1993/5/1363
QUINN v HONOURABLE SOCIETY OF KINGS INNS 2004 4 IR 344 2004/43/9784
ZHANG v ATHLONE INSTITUTE OF TECHNOLOGY UNREP DUNNE 14/6/2013 2013/55/15494 2013 IEHC 390
MURPHY v TURF CLUB 1989 IR 171 1989/7/2030
BEIRNE v COMMISSIONER OF AN GARDA SIOCHANA 1993 ILRM 1 1992/10/3136
JUDICIAL REVIEW
Education
Third level student - Dismissal from doctoral degree - Poor academic performance -- Whether supervisory panel and appeals board constituted in accordance with university regulations - Whether decision premature - Whether decision of university amenable to judicial review - Whether decision relating to discipline or academics - Whether sufficient public element - Rajah v The Royal College of Surgeons [1994] 1 IR 384; Quinn v The Honourable Society of King's Inns [2004] IEHC 220, [2004] 4 IR 344 and Beirne v Commissioner of An Garda Síochána [1993] ILRM 1 followed - O'Donnell v Tipperary (South Riding) County Council [2005] IESC 18, [2005] 2 IR 483 and Zhang v Athlone Institute of Technology [2013] IEHC 390, (Unrep, Dunne J, 14/6/2013) distinguished - R v Higher Education Council, ex parte Institute of Dental Surgery [1994] 1 All ER 651 considered - Dublin City University Act 1989 (No 15) - Universities Act 1997 (No 24), ss 27 and 33 - European Convention on Human Rights Act 2003 (No 20), s 1 - Relief refused (2014/283JR - Noonan J - 29/1/2015) [2015] IEHC 38
Fassi v Dublin City University
Facts: The applicant, a Ph.D. student, was deemed unsuitable by his academic supervisors to continue his studies due to poor academic performance. The student”s appeal to the Graduate Research Studies Board (‘the Board’) was rejected. He therefore brought judicial review proceedings to quash both decisions. The applicant was granted leave. The applicant relied on two grounds. Firstly, his supervisors” decision was invalid because the supervisory panel had not been properly constituted and thus affecting the decision of the Board on appeal. Secondly, the decisions were premature. The respondent argued that the decisions taken were a matter of private law and not amenable to judicial review. Also, the applicant”s issues had already been dealt with by the appeal before the Board and could not therefore be revisited. The respondent conceded that the supervisory panel had not been constituted correctly. However, the respondent countered this by arguing that the defective constitution had no bearing on the applicant and did not prejudice him in any way.
Held by Noonan J: The court had to determine if the decisions were amenable to judicial review, whether the constitution of the supervisory panel invalidated its decision and that of the Board and thirdly whether the decision was premature. The court does not intervene with decisions of educational institutions unless the decision was based on improper considerations or motivated by mala fides. There was not a sufficiently public element to the relationship between the applicant and respondent to warrant intervention by the court. The academic judgment and the defect in composition of the panel was not material to that judgment. The court determined that it was a matter for the panel and the Board on appeal to use their academic judgment on the applicant”s ability and performance. The two decisions were not reviewable for these reasons but even if they were the court said the Board had already dealt with all relevant issues. The court therefore refused the application.
JUDGMENT of Mr. Justice Noonan delivered the 29th day of January, 2015
1. The applicant was a Ph.D. student at the respondent University during the academic year 2012/2013. In May 2013, his academic supervisors issued a report deeming him unsuitable to continue his studies as a result of poor academic performance and he was thus unable to progress further. He appealed this decision to the Graduate Research Studies Board ("the Board") which rejected his appeal on the 17th October, 2013. He brings the within judicial review proceedings seeking orders of certiorari quashing both the decision in May and that in October 2013.
2. Leave was granted by order of Peart J. on the 19th May, 2014.
3. In March 2012, the applicant applied for a Ph.D. project in "biotherapeutics for chronic pain" at the International Centre for Neurotherapeutics (ICNT) of the respondent under the supervision of Professor J. Oliver Dolly. This was a paid assignment for which the applicant received a stipend. He commenced working at the ICNT in July 2012 and was registered as a student in October of that year. The applicant had two academic supervisors tasked with monitoring his progress, his principal supervisor being Professor Dolly and the second supervisor Dr. Ahmed Al-Sabi.
4. The applicant appears to have encountered difficulty virtually from the outset. He alleged that there were various shortcomings in the training and supervision provided to him. In December 2012, he travelled to France in order to train in specific laboratory techniques which were felt to be lacking in his case and the cost of this was covered by the ICNT. In February 2013, the applicant made a formal complaint to the university again centring on the issues of supervision and training. This was rejected.
5. The applicant says that on the 12th April, 2013, Professor Dolly informed him of his decision to dismiss the applicant from the course. He says that Professor Dolly offered him the option of withdrawing voluntarily from the course in which event he would be provided with a reference. The applicant declined the offer. He made a further formal complaint to the college in April 2013 and later the same month submitted a complaint to the human resources Department suggesting he was the subject of victimisation.
6. On the 2nd May, 2013, a document described as a PGR2 and entitled "Dublin City University Postgraduate Research Studies Annual Progress Report" was signed by Professor Dolly and Dr. Al-Sabi. This document contains a detailed critique of the applicant's academic performance over the course of his 7 months as a research postgraduate student. The report states that the applicant's theoretical knowledge and experimental skills were inadequate leading to the requirement for the applicant to receive additional training from two post-doctoral researchers and in addition, at a laboratory in France. The supervisors said that great difficulties were encountered in getting him to actually perform experiments. He found some of the tasks assigned to him too challenging despite daily assistance from two senior researchers. His command of English appears to have been poor. He was advised to take some courses in English but did not do so. The supervisors stated that his unsatisfactory performance was accompanied by outspoken, repeated confrontations with several members of ICNT. The report states that during several months of being closely monitored, it became apparent that the applicant displayed unacceptable behaviour that proved disruptive, and thus incompatible with continuing research at ICNT.
7. The report went on to state:
"After in-depth and careful consideration by the Supervisory panel and repeated consultation with senior members of ICNT, this postgraduate was deemed unsuitable to continue a Ph.D. degree in ICNT. This firm decision was not made lightly but based on several standard criteria: intellectual calibre reflected by substandard, trivial research presentations at group meetings, depth of background knowledge relevant to Ph.D. research, limited ability to successfully carry out experiments unaided; inadequate English for writing a Ph.D. thesis or scientific papers, poor/erratic timekeeping and, especially, personal friction he generated with those working in the group. Finally, he objected to having to abide by college/legal regulations. For example, he questioned the need to apply to the Research Ethics Committee for approval of animal work -- a legal requirement -- and had to be omitted from this application due to failing all four modules of a basic course on Animal Handling."
Several meetings of the supervisory panel were held with him this term to explain the unacceptable situation and offer remedial advice. As these efforts failed to correct any of the listed weaknesses, and cognisant of the numerous problems, a unanimous decision was reached on 12th of April 13 and communicated to him that discontinuation of Ph.D. studies in ICNT is being recommended to Registry, School of Biotechnology, Faculty of Science and Health, Fees and Graduate Studies Office. As it would be inappropriate for any more money from the SFI grant to be spent on this researcher who, in our opinion, is unsuitable, we recommend termination of payment of stipend and fees at the earliest possible date.
· I hereby certify that Tewfik Fassi has not maintained satisfactory progress during the academic year 2012/2013.
· It is not recommended that his/her registration for research and study for the award of the degree of M.Sc./ Ph.D. be renewed for the next academic year."
8. As well as being signed by the applicant's two supervisors on the 2nd May, 2013, the report was also signed by Rosaleen Devery on the 8th May, 2013. It...
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Galbraith v Dublin City University
...review. This is clear from the judgments of the High Court in Rajah v. Royal College of Surgeons [1994] 1 I.R. 384 and Fassi v. DCU [2015] IEHC 38. 22 . In Rajah, Keane J. indicated (in the context of a case brought against a decision to refuse to allow a student to repeat a twice-failed ex......