Aderemi v Tafe International [2025] FCA 1443

1. In late 2023, the applicant, Adedipupo Tony Aderemi, lodged a written complaint with the Australian Human Rights Commission (AHRC). In his complaint, Mr Aderemi made various allegations concerning the first respondent, TAFE International WA (TAFE), and the second respondent, Jacquelyn Johnstone (collectively, the respondents). Mr Aderemi alleged that in various interactions he had with the respondents during a period from about April to July 2023, he 'experienced racial hatred', that his human rights had been breached, and that he had been 'victimised' because he had made, or had tried to make, a complaint about discrimination.
2. The AHRC accepted Mr Aderemi's complaint as a complaint in which it was alleged that the respondents had engaged in racial hatred for the purposes of s 18C of the Racial Discrimination Act 1975 (Cth). Further, and only after the AHRC subsequently received further information from Mr Aderemi, his complaint was also accepted as one in which it was alleged that the respondents had engaged in victimisation contrary to s 18AA of the Racial Discrimination Act.
3. A delegate of the President of the AHRC (AHRC delegate) ultimately decided to terminate Mr Aderemi's complaint pursuant to ss 46PF(1)(b) and 46PH(1)(c) of the Australian Human Rights Commission Act 1986 (Cth). Pursuant to s 46PH(3) of that Act, the AHRC delegate advised Mr Aderemi of that decision in writing on 27 May 2024.
4. Mr Aderemi now seeks to make an application to this Court, pursuant to s 46PO(1) of the Australian Human Rights Commission Act, alleging that the respondents did acts amounting to 'unlawful discrimination', as defined in s 3 of that Act. More specifically, Mr Aderemi wishes to make an application alleging that the respondents performed acts of victimisation and racial hatred, contrary to ss 18AA and 18C of the Racial Discrimination Act, respectively. Mr Aderemi claims that because the respondents performed those acts, he is entitled to 'compensation'.
5. On 5 August 2025, a hearing was conducted before me to deal with the question of whether Mr Aderemi is entitled to institute these proceedings, and if he is so entitled, whether he should be granted leave under s 46PO(3A)(a) of the Australian Human Rights Commission Act.
6. For the following reasons, I am of the view that Mr Aderemi is not entitled to institute these proceedings to allege that the respondents performed acts of racial hatred. Further, and in any event, Mr Aderemi should not be granted leave to make an application alleging that the respondents performed acts of racial hatred or of victimisation.
7. Before explaining why I have reached those conclusions, it is necessary to say something more about the relevant statutory context in which Mr Aderemi's application falls to be considered.

The Australian Human Rights Commission Act

1. Part IIB of the Australian Human Rights Commission Act contains various provisions that are concerned with redress for 'unlawful discrimination', a phrase that is defined in s 3 to mean, relevantly, any acts, omissions or practices that are unlawful under Pt II or Pt IIA of the Racial Discrimination Act.
2. Pursuant to s 46P of the Australian Human Rights Commission Act, which appears at the beginning of Pt IIB of that Act, a written complaint may be lodged with the AHRC alleging, relevantly, that:

(a) one or more acts have been done; and

(b) the act or those acts are 'unlawful discrimination'.

1. Mr Aderemi lodged a written complaint with the AHRC on 24 December 2023.
2. If a complaint is made to the AHRC under s 46P, it must be referred to the President of the AHRC: s 46PD. Pursuant to s 46PF, the President must then either consider whether to inquire into the complaint (s 46PF(1)(a)), terminate the complaint without inquiry (s 46PF(1)(b)), or inquire into and attempt to conciliate the complaint (s 46PF(1)(c)).
3. The President may inform him or herself of such facts and circumstances as are necessary to form an opinion about whether to inquire into a complaint: s 46PF(1A). Further, the President may terminate a complaint on several grounds, including that he or she is satisfied that the alleged acts, omissions or practices are not unlawful discrimination: s 46PH(1)(a). The President must also terminate a complaint that is trivial, vexatious, misconceived or lacking in substance: s 46PH(1B)(a).
4. If the President decides to terminate a complaint, then he or she is required to comply with the notification requirements in subss (2), (2A) and (3) of s 46PH: s 46PF(1B).
5. Where a complaint has been terminated by the President under s 46PH and the President has given notice under s 46PH(2) in relation to that termination, the person who made the complaint may apply to this Court or to the Federal Circuit and Family Court of Australia (Division 2), alleging unlawful discrimination by one or more of the respondents to the terminated complaint: s 46PO(1). Such an application must be made within 60 days after the date of issue of a notice under s 46PH(2): s 49PO(2).
6. Section 46PO(3) provides that the unlawful discrimination alleged in an application made under s 46PO(1) must:

(a) be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b) arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

1. Pursuant to s 46PO(3A)(a), an application must not be made unless the court concerned grants leave to make the application.
2. Having summarised the relevant provisions of the Australian Human Rights Commission Act, it is then necessary to refer to some aspects of the Racial Discrimination Act.

The Racial Discrimination Act

1. Part II of the Racial Discrimination Act is concerned with the prohibition of racial discrimination. Several provisions within Pt II declare that certain acts, or the refusal or failure to do certain acts, are unlawful. For example, s 9 declares that it is unlawful for a person to do any act of racial discrimination. Other sections, such as ss 11 to 16, provide that certain acts relating to places and facilities, land, housing and accommodation, goods and services, employment and advertising are unlawful if they are done by reason of a person's race, colour or national or ethnic origin.
2. The first claim that Mr Aderemi seeks to make in these proceedings is set out in his originating application in the following terms:

The Respondent unlawfully victimised the Applicant after the Applicant had informed the Respondent of reporting the conduct of the Respondent and Second Respondent to the Australian Human Rights Commission if the Respondent denies the Applicants [sic] the opportunity to sponsor his associates to come study through TAFE, as the Second Respondent had displayed unprofessional conducts [sic] during her interaction with the Applicant.

1. At the hearing, Mr Aderemi confirmed that this aspect of his claim amounts to an allegation of victimisation, contrary to s 18AA of the Racial Discrimination Act (victimisation claim).
2. Section 18AA(1), which is also in Pt II of the Racial Discrimination Act, provides as follows:

(1) It is unlawful for a person to commit an act of victimisation against another person.

Note 1: See also subsection 27(2) (offences relating to administration of this Act).

Note 2: See also the definition of unlawful discrimination in the Australian Human Rights Commission Act 1986.

(2) For the purposes of subsection (1), a person (the first person) commits an act of victimisation against another person if the first person:

(a) refuses to employ the other person; or

(b) dismisses, or threatens to dismiss, the other person from the other person's employment; or

(c) prejudices, or threatens to prejudice, the other person in the other person's employment; or

(d) intimidates or coerces, or imposes any pecuniary or other penalty upon, the other person;

by reason that the other person:

(e) has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or

(f) has given, or proposes to give, any information or documents to a person exercising or performing any powers or functions under this Act or the Australian Human Rights Commission Act 1986; or

(g) has attended, or proposes to attend, a conference held under this Act or the Australian Human Rights Commission Act 1986.

1. As will be seen, only paras (d), (e) and possibly (f) of s 18AA(2), have any potential relevance in the circumstances of this case.
2. At the hearing, Mr Aderemi also confirmed that the victimisation claim is based on what he says occurred during a meeting he had with Ms Johnstone at a TAFE office on 10 March 2023. I will describe Mr Aderemi's version of the circumstances of that meeting in more detail later in these reasons.
3. Further, although the victimisation claim suggests that it is only directed at TAFE, I will approach it on the basis that Mr Aderemi alleges that it was Ms Johnstone who actually did the acts on which that claim is based, and that TAFE is vicariously liable as Ms Johnstone's employer pursuant to s 18A of the Racial Discrimination Act. The AHRC also appeared to treat Mr Aderemi's complaint as an allegation that it was Ms Johnstone that performed an act of victimisation. However, the basis on which it considered Mr Aderemi's complaint against TAFE is not clear from the materials that are before me.
4. The second claim made in Mr Aderemi's originating application is in the following terms:

The Second Respondent said to the Applicant that 'The Applicant is delusional to think he could bring his high risk African family members to come to Australia to live or to Study' And that Africans are high risk to the Australian society. The Applicant submits that such statement made by the Second Respondent is unlawful and discriminatory because, the statement was made in public (At the reception at the Respondents['] office), and the discriminatory words was used on multiple occasion by the Second Respondent as a means of Justifying her actions and position regarding the Applicant[']s concern.

1. At the hearing of this matter, Mr Aderemi confirmed that this aspect of his claim amounts to an allegation of racial hatred, contrary to s 18C of the Racial Discrimination Act (racial hatred claim). Part III of the Racial Discrimination Act prohibits certain offensive behaviour based on racial hatred. Section 18C, which is in Pt III of that Act, provides that it is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

1. For the purpose of s 18C, an act is taken not to be done in private if it is done in a public place (s 18C(2)(b)) or if it is done in the sight or hearing of people who are in a public place (s 18C(2)(c)). A 'public place' relevantly includes any place to which the public have access as of right or by invitation, whether express or implied: s 18C(3).
2. The racial hatred claim only alleges that Ms Johnstone performed acts of racial hatred. However, I will assume that Mr Aderemi also alleges that TAFE is vicariously liable for Ms Johnstone's alleged acts of racial hatred, pursuant to s 18E of the Racial Discrimination Act. Once again, the precise basis on which the AHRC considered Mr Aderemi's complaint against TAFE is not made clear from the materials that are before me.
3. There is one further provision of the Racial Discrimination Act that must be mentioned, namely, s 6A(2). In Elekwachi v Human Rights and Equal Opportunity Commission (1997) 79 FCR 271 at 284, Mansfield J said that s 6A(2) 'provides a "choice of law" rule by removing from those eligible to proceed under the Racial Discrimination Act persons who have in some way proceeded under corresponding State or Territory legislation in respect of the subject of the complaint'.
4. The respondents contend that Mr Aderemi has relevantly proceeded under corresponding Western Australian legislation by making a complaint to the Equal Opportunity Commission of Western Australia (EOC) under the Equal Opportunity Act 1984 (WA) (the EOC complaint). On that basis, the respondents submit that by operation of s 6A(2) of the Racial Discrimination Act, Mr Aderemi is deemed not to be entitled to institute these proceedings.
5. As there is a dispute between the parties about the proper construction of s 6A(2), I will return to deal with this provision in more detail later in these reasons.

Mr Aderemi's complaint to the Australian Human Rights Commission

1. Before summarising the complaint that Mr Aderemi made to the AHRC, it is very important to appreciate that none of Mr Aderemi's claims have been proved. It must therefore be understood that by referring to Mr Aderemi's claims, and not to Ms Johnstone's version of the relevant events, the Court is not purporting to make any determination about the merits of Mr Aderemi's claims. The only reason for referring to the detail of Mr Aderemi's claims is to explain the context in which this Court is required to decide whether he is entitled to make his application based on those claims and, if so, whether he should be granted leave.
2. As I have already explained, Mr Aderemi lodged a written complaint with the AHRC pursuant to s 46P of the Australian Human Rights Commission Act on 24 December 2023. In that complaint, Mr Aderemi alleged that during, and then arising out of, a meeting that he had with Ms Johnstone at a TAFE office on 10 March 2023, one or both of the respondents did acts that amounted to 'unlawful discrimination', as defined in s 3 of that Act.
3. Almost six months after he lodged his complaint, the AHRC notified Mr Aderemi in writing that the complaint would be terminated. In the AHRC's written termination notice, the AHRC delegate identified a more refined scope of Mr Aderemi's complaint. Specifically, the AHRC delegate identified Mr Aderemi's complaint as amounting to an allegation that acts of racial hatred had occurred at a meeting that he had with Ms Johnstone on 10 March 2023 at a TAFE office. Further, the AHRC delegate indicated that the AHRC had also accepted the complaint as a complaint that acts of victimisation had been performed. Mr Aderemi does not now suggest that the AHRC mischaracterised or misunderstood his complaint.
4. The AHRC delegate's summary of Mr Aderemi's complaint is in the following terms:

• You are an Australian citizen of African background from Nigeria.
• On 8 March 2023, you submitted a student study application with TAFE on behalf of a relative - [Mr E], and on 9 March 2023 the application was denied.
• You submitted various other applications and received the same rejection. You then applied for electrical engineering, which is [Mr E's] preferred course as this is his speciality.
• On 9 March 2023, [Mr E] received an email from TAFE saying that he was required to submit his application through a 'registered' TAFE agent before TAFE could proceed with his application.
• On 10 March 2023, you walked into the TAFE office and spoke to Jacqui Johnstone, Manager of Customer Services.
• You asked for the reason behind the automatic rejection for anyone from Africa.
• Jacqui Johnstone said she was aware of this and said, 'Africans are high risk to the Australian society' and even if she would consider your application, you had to go through their agents. She said it is not certain that you could ever bring in your family member to study. She also said you were delusional to think that you could bring in a family member to study and apply for a visa to study.
• You asked her to explain why she considered Africans to be high risk to the Australian society and if she knew that such an utterance is discriminatory. She replied that she was not concerned about how you feel about her utterances, but she is most concerned about the type of people they are letting into Australia, through TAFE.
• You explained the importance of the admission from TAFE and how vital it is to the offer letter and admission [Mr E] had received from the University of Western Australia (UWA).
• She then said she would consider [Mr E's] application, and you should email her all the documents you had submitted to UWA on [Mr E's] behalf. She assured you that as long as [Mr E] has a letter of offer from UWA, there should be no problem getting an offer letter from TAFE.
• You sent the documents to Jacqui Johnstone and in telephone conversations on 12 and 18 April 2023, she confirmed she had received all the information.
• In a subsequent telephone call, Jacqui Johnstone proceeded to quiz you about why had you 'claimed' [Mr E] had received an offer from UWA. You explained that you thought she said she had received all the documents you emailed to her. The UWA offer letter was included in the emails you had sent, and she had acknowledged receipt of the documents over the phone.
• Just two hours after the telephone conversation, [Mr E] received an email with a rejection letter.
• You believe Jacqui Johnstone and her co-workers have a stereotypical ideology towards Africans and the way you were spoken to and treated was highly discriminatory and offensive.
• The words Jacqui Johnstone used against you, where she called you a delusional African by thinking you could get your family members to Australia through TAFE, is discriminatory and offensive.
• Jacqui Johnstone has executed and displayed gross prejudice toward Africans by telling you that she considers Africans to be 'high risk' and you believe she intentionally humiliated you in public calling 'Africans high risk to the Australian society',

In your email of 10 March 2024 and attachment you also say:

• The conversation with Jacqui Johnstone took place in public at the customer service area of the organisation, with people of other racial backgrounds present.
• Victimisation occurred when you informed 'the TAFE staff' that you would be reporting 'her' discriminatory, unprofessional, and unethical conduct towards you to the Human Rights Commission, because you felt you were hated and in harm's way, dealing with people with such mindset.
• 'She' victimised you for asserting your rights as an Australian citizen of African background, and denied the applications you submitted on behalf a loved one.

1. The AHRC delegate's written notice recorded that Mr Aderemi's complaint of racial hatred was specifically concerned with words that he alleged Ms Johnstone said to him during a meeting that took place after Mr Aderemi walked into a TAFE office on 10 March 2023. In particular, the AHRC delegate recorded that that Mr Aderemi alleged that Ms Johnstone had said to him that 'Africans are high risk to the Australian society', that he was 'delusional' to think that he 'could bring in [to Australia] a family member to study' and apply for a visa to study, and that she was 'most concerned about the type of people they are letting into Australia, through TAFE'.
2. The AHRC delegate noted that Mr Aderemi's complaint of victimisation emerged for the first time in an email he sent to the ARHC on 10 March 2024, almost three months after he first lodged his complaint. The full text of that email is as follows:

Dear Natalie,

Please find attached the response which I sent to the legal representative of TAFE International some minutes ago.

My response to his request, in order for the matter to move forward and be understood by both parties, is contained in the attachment .

The incident happened in 'public' and the statements she made was both in the context of my person as an Australian of African (and my loved ones) background and also in the context of immigration through studies which I happened to be the representative of the applicant.

I submit that, 'victimisation' in the context of my complaint occurred when I informed the TAFE staff that I would be reporting her discriminatory, unprofessional and unethical conduct towards me to the Human Rights Commission, because I felt was hated and in harm[']s way, dealing with people with such mindset. I submit that she victimised me for asserting my rights as an Australian Citizen of African background, and denied the applications I submitted on behalf a loved one.

Regards, Tony.

(emphasis added)

1. In relation to this email, the AHRC delegate said in its written notice:

From your email of 10 March 2024, it appears that you claim Ms Johnstone denied [Mr E's] application because you said you would be reporting 'her discriminatory, unprofessional and unethical conduct' towards you to the Human Rights Commission. However, I note that in the statements you previously provided, including statements regarding your claim under the EOC Act, you do not say that you informed TAFE staff or Ms Johnstone that you proposed to make a report or complaint to the Human Rights Commission. It is also unclear who you say you informed and exactly when this occurred.

1. At the hearing of his application for leave that was conducted before me, Mr Aderemi confirmed that he alleged that it was during his meeting with Ms Johnstone at a TAFE office on 10 March 2023 that he told Ms Johnstone that he would be referring her conduct to the AHRC.
2. It may be seen that the specific acts that were identified by the AHRC delegate as the acts about which Mr Aderemi complained, and which were alleged to amount to racial hatred and unlawful victimisation, respectively, were acts that Mr Aderemi alleged had been performed by Ms Johnstone. However, although TAFE was referred to in the AHRC's written termination notice as the 'first respondent', the AHRC delegate did not clearly identify the basis on which Mr Aderemi's complaint against TAFE had been accepted. As I have already said, I will assume, favourably to Mr Aderemi, that his complaint to the AHRC was accepted as one that amounted to an allegation that TAFE was vicariously liable for Ms Johnstone's alleged acts of unlawful discrimination, pursuant to ss 18A and 18E of the Racial Discrimination Act.
3. It is not necessary for Mr Aderemi to establish that the AHRC fell into error in deciding to terminate his complaint. However, it is informative to reproduce the AHRC delegate's reasoning in relation to Mr Aderemi's allegation of racial hatred:

I understand you claim that the way you were treated by Ms Johnstone in terms of the alleged comments she made during your meeting with her on 10 March 2023, constitute racial hatred. You refer specifically to an alleged comment by Ms Johnstone that: 'Africans are high risk to the Australian society'. You also allege she said that you were delusional to think that you could bring in a family member to study and apply for a visa to study, and she was most concerned about the type of people they are letting into Australia through TAFE.

I acknowledge that you say you found Ms Johnstone's alleged comments offensive and humiliating. However, as explained below, I am concerned about the apparent merit of your claim under section 18C of the [Racial Discrimination Act].

To support a claim of racial hatred, a complainant must provide sufficient information to support that the act they are complaining about is reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person or group of people. The test in section 18C(1)(a) is an objective one. This means that if a matter proceeded to court, the question to be considered is not whether the person making the complaint was offended, insulted, humiliated or intimidated, but rather whether the act complained of was reasonably likely to have that effect on a hypothetical representative member of the relevant group of people, in this case the relevant group being 'Australian citizens of African background'.

Case law regarding section 18C of the [Racial Discrimination Act], supports that the hypothetical representative of the relevant group should not be a person who is particularly susceptible to be aroused or incited, and that for an act to be racial hatred it must have 'profound and serious effects' and 'not be likened to mere slights'.

Case law also supports that context is important when considering whether a particular act may breach section 18C. From the information you have provided it appears that in response to your complaint to the [Western Australian Equal Opportunity Commission] about the same subject matter, TAFE advised the [Western Australian Equal Opportunity Commission] that the comment about African applicants being 'high risk' was made in the context of the Commonwealth Department of Home Affairs visa related assessments, which deem offshore Nigerian student applicants aged 30 to 34 as 'high risk' and requiring a higher level of documentary documentation.

Overall, there appears to be insufficient information to support that the alleged comments in all the circumstances would offend, insult, humiliate or intimidate a hypothetical representative member of the relevant group in terms of having profound and serious effects.

(original emphasis, footnotes omitted)

1. In relation to Mr Aderemi's allegation of victimisation, the AHRC delegate said that there was insufficient information to conclude that any comment made by Mr Aderemi to Ms Johnstone regarding a complaint to the AHRC was a substantive and operative reason why Mr E's application was refused. The AHRC delegate also said that it was unclear whether the decision to refuse Mr E's application was an act that caused 'detriment' to Mr Aderemi, for the purposes of paras (a) to (d) of s 18AA(2) of the Racial Discrimination Act.
2. Having summarised the approach that was taken by the AHRC, it is now convenient to say something about Mr Aderemi's originating application, and about the accompanying statement of claim.

Mr Aderemi's originating application and statement of claim

1. I have already observed that in his originating application, Mr Aderemi claims that he was subjected to victimisation and racial hatred, contrary to ss 18AA and 18C of the Racial Discrimination Act, respectively. Based on those claims, Mr Aderemi seeks an order that either, or both, of the respondents pay him 'compensation' in the amount of $1.5 million. In that regard, Mr Aderemi claims that he is entitled to 'compensation'

for the damages caused by the Respondents['] actions to the Applicant[']s interests and missed investment opportunities that would have led to the Applicant benefiting from his researching and documenting the transference of technology between Africa and Australia. Which would have allowed the applicant[']s developmental initiative (African Reborn International) [to] provide technical training to African technicians so as to enable them [to] provide clean and sustainable energy sources, clean mining practices and skills and required development to their various communities.

1. In paras 3 and 4 of the originating application, Mr Aderemi appears to make further claims under s 18 of The Australian Consumer Law (being Sch 2 of the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law)). It is unnecessary to say anything about these claims. As I indicated at the hearing of Mr Aderemi's application for leave, I will hear from the parties later as to the future progress of this aspect of Mr Aderemi's claim.
2. The originating application also refers to the Age Discrimination Act 2004 (Cth). However, Mr Aderemi advised at the hearing of his application for leave that his claim did not include any allegations of age discrimination, and that this aspect of the originating application could be struck out.
3. The statement of claim upon which Mr Aderemi wishes to rely has been drafted in a narrative style. Accordingly, it fails to plead only the material facts that are relied upon and that are necessary to give the respondents fair notice of the case to be made against them. Nevertheless, the statement of claim at least confirms that Mr Aderemi does wish to rely on what he alleges Ms Johnstone said to him at a meeting at a TAFE office on 10 March 2023, and that his racial hatred claim is in terms that are broadly consistent with the AHRC's articulation of his complaint of racial hatred. However, and for reasons that have not been made clear, the material facts supporting Mr Aderemi's victimisation claim do not appear in the statement of claim. For present purposes, I will assume, favourably to Mr Aderemi, that this is an oversight.
4. Before proceeding to identify the issues that must be determined, it is necessary to identify the materials relied on by the parties.

1. When Mr Aderemi filed his originating application, he also filed an affidavit that was affirmed by him on 29 June 2024. To that affidavit, Mr Aderemi purported to attach 'Documents from Equal Opportunity Commission'. However, no such documents were attached.
2. Subsequently, Mr Aderemi filed a further affidavit affirmed by him on 29 October 2024. Several documents were annexed to that affidavit. Those documents appeared to comprise various pieces of correspondence with the University of Western Australia, and with TAFE. Mr Aderemi also attached documents that he described as 'Correspondence Equal Opportunity' and 'Evidence of Discrimination'.
3. The respondents rely on an affidavit affirmed by Alexander James Gibson on 18 December 2024. They also seek to rely on an affidavit affirmed by Ms Johnstone on 15 April 2025.
4. In his affidavit, Mr Gibson gives evidence about the EOC complaint. As that complaint is of critical importance to the question of whether Mr Aderemi is deemed not to be entitled to institute these proceedings by operation of s 6A(2) of the Racial Discrimination Act, I will shortly refer to the EOC complaint in more detail.
5. Ms Johnstone's affidavit sets out her version of the events of 10 March 2023. However, as this is not the occasion on which to engage in a fact‑finding exercise in relation to disputed facts (Rawson v South Metropolitan Health Service [2024] FCA 769 at [81), I have not taken Ms Johnstone's affidavit into account in determining whether Mr Aderemi is entitled to institute these proceedings or in deciding whether he should be granted leave.

1. According to Mr Gibson's unchallenged evidence, which I accept:

(1) On 1 May 2023, Mr Aderemi made the EOC complaint under the Equal Opportunity Act, in which he alleged that TAFE had engaged in racial discrimination in the provision of services. The EOC complaint was concerned with the same events that are the subject of Mr Aderemi's originating application.

(2) On 18 December 2023, the EOC complaint was dismissed by the EOC on the ground that it was misconceived or lacking in substance.

(3) Later, on the same day, Mr Aderemi requested that the EOC refer his complaint to the State Administrative Tribunal of Western Australia (SAT), pursuant to s 90 of the Equal Opportunity Act.

(4) When the EOC then referred Mr Aderemi's complaint to the SAT, Mr Aderemi was named as the applicant and TAFE was named as the respondent. However, Ms Johnstone was not named as a party to those proceedings.

(5) On 12 December 2024, the SAT dismissed the EOC complaint on the basis that it was frivolous, vexatious, misconceived or lacking in substance: Aderemi and TAFE International WA [2024] WASAT 141.

1. In the complaint form that Mr Aderemi submitted to the EOC, a copy of which is attached to Mr Gibson's affidavit, Ms Johnstone (and another person) were nominated as the persons who were involved in the complaint. Mr Aderemi also named TAFE as the organisation involved. There were boxes on the form that were to be ticked by the person completing the form, if applicable. On Mr Aderemi's complaint form, the boxes for 'race' and 'racial harassment' were ticked, and a date of 10 March 2023 was nominated as the date on which the alleged conduct had occurred. In the form, Mr Aderemi also set out the details of his complaint, alleging that he believed that he had been 'racially discriminated against by Jacqui Johnstone and her team at TAFE WA'.
2. Part of the information that Mr Aderemi included in his complaint was the following:

On or around 09/03/2023, I decided to visit the TAFE office in Perth to ask why my applications were denied without any requirement to see if the applicant has the required document.

I have never seen or witnessed such bias towards Africans.

Jacqui Johnstone, told me Africans are high risk and that I am delusional if I think I can bring my families to Australia through TAFE. And that even if she would consider any application from me or from Africa, we must go through her agents.

I believe Jacqui Johnstone has used her position as the Manager Customer Service, to discriminate against me and my family member whom I was intending to sponsor to Australia to come study.

Jacqui Johnstone, in public, called Africans high risk to the Australian society, and threatened to use her power over me and other Africans by stopping us from accessing education in Australia.

I believe Jacqui Johnstone and her team member [R] denied all my applications due because [sic] of my race.

1. It is apparent that after Mr Aderemi submitted his complaint form, his allegations were then investigated by the EOC as one of 'race discrimination in the area of the provision of goods and services', under Pt III of the Equal Opportunity Act.
2. In support of his EOC complaint, Mr Aderemi subsequently provided a lengthy written 'Statement of Circumstances and Allegations' to the EOC. As Mr Aderemi's claims in this Court are principally concerned with what he alleges occurred at TAFE on 10 March 2023, it is only necessary to reproduce what he said about that event in that statement, which appeared at paras 11 to 30 of the statement:

On March 10th, 2023, I walked into the TAFE office and approached the gentleman at the reception desk.

I asked him if '[R]' was available and he replied 'no', so I asked to see a more superior officer.

Another young man attended to me and I asked if he was the most superior officer and he replied 'no'.

The young man then left and called Jacqui Johnstone, the Manager of Customer Services, TAFE International, Western Australia. [Contact details supplied].

I asked Jacqui Johnstone if I could record the conversation but she objected to this.

I asked Jacqui Johnstone, the reason behind the automatic rejection for anyone from Africa.

Jacqui Johnstone said she was aware of this and stated that 'Africans are high risk to the Australian society, and that even if she would consider my application, I had to go through their agents'.

In addition, she went on, 'that even though I go through their agents, it is not certain that I could ever bring in my family member to study'.

Jacqui Johnstone then told me that I was 'delusional' to think that I could bring in a family member to study and apply for a visa to study.

I asked Jacqui Johnstone to explain why she considered Africans to be high risk to the Australian society.

In addition, I asked if she knew that such an utterance is discriminatory.

Jacqui Johnstone replied she is not concerned about how I feel about her utterances but she is most concerned about the type of people they are letting into Australia, through TAFE.

I informed Jacqui Johnstone about my concerns regarding the approach she insisted upon that I had to take to get an admission for my family member.

I explained the importance of the admission from TAFE and how vital it is to the offer letter and admission [Mr E] has received from the University of Western Australia (UWA).

Jacqui Johnstone concluded that I should provide to her all the documentation which I had submitted to UWA on behalf of [Mr E].

Jacqui Johnstone said she would then consider [Mr E's] application.

I explained how I was insecure about sending my personal information via the internet and how my preference would be to submit the information in person.

Jacqui Johnstone was adamant and insisted that I submit the paperwork to her via an email address.

Jacqui Johnstone then gave me her business card to email the documents to.

Jacqui Johnstone assured me that so long as [Mr E] has an offer from UWA, then there should be no problems getting an offer letter from TAFE International Western Australia.

1. The balance of Mr Aderemi's 'Statement of Circumstances and Allegations' set out his version of the contact he had with Ms Johnstone after the 10 March 2023 meeting, as well as what were, in effect, several submissions.
2. It may be seen from this summary of the EOC complaint that Mr Aderemi specifically referred to a conversation that he alleged he had with Ms Johnstone on 10 March 2023. The terms of that conversation are similar to the terms of the conversation that was later the subject of Mr Aderemi's complaint to the AHRC, and is, in turn, similar to the racial hatred claim. However, the factual basis on which he now seeks to rely in support of the victimisation claim was not referred to at all in the EOC complaint.
3. The EOC evidently provided a copy of Mr Aderemi's complaint to the General Manager of TAFE, as they were invited to provide a written response. However, there is no evidence before me to suggest that the EOC provided a copy of the complaint to Ms Johnstone. This is consistent with the EOC treating the EOC complaint as a complaint only against TAFE.
4. After the EOC received TAFE's response to Mr Aderemi's allegations, Mr Aderemi was invited to reply. Once again, in his reply, Mr Aderemi made no mention of the facts necessary to establish the victimisation claim.
5. As I have already noted, the EOC decided that the EOC complaint was 'misconceived and lacking in substance', and it was dismissed pursuant to s 89 of the Equal Opportunity Act. When he was notified that his complaint had been dismissed, Mr Aderemi then requested that his complaint be referred to the SAT pursuant to s 90(2) of the Equal Opportunity Act.
6. After the EOC complaint was then referred to the SAT on 10 January 2024, Mr Aderemi filed a 'Statement of Issues, Facts and Contentions', in which he purported to make complaints of racial discrimination under s 46 of the Equal Opportunity Act, and racial hatred under the Racial Discrimination Act. Mr Aderemi also purported to make claims under s 18 of the Australian Consumer Law as well as under the Public Service Act 1999 (Cth).
7. It is unnecessary to set out all of the factual contentions that were set out in the 'Statement of Issues, Facts and Contentions'. It is enough to note that Mr Aderemi continued to assert that Ms Johnstone had said substantially the same things that he had alleged she said in his complaint to the AHRC, and that her conduct amounted to racial hatred. However, once again, the 'Statement of Issues, Facts and Contentions' did not include the facts necessary to establish the victimisation claim.
8. Before moving on to deal with the issues that must be determined, it is necessary to observe that the evidence before me establishes that the first time Mr Aderemi made the victimisation claim, alleging that he had been 'victimised because [he] made, or tried to make, a complaint about discrimination', was when he made a complaint in those terms to the AHRC on 24 December 2023. However, the first time that any substantive details of the victimisation claim emerged was when Mr Aderemi sent an email to the AHRC on 10 March 2024, the contents of which I have reproduced earlier in these reasons. That was almost three months after he first complained to the AHRC, and over nine months after the EOC complaint was first made.
9. There is also one final matter to note. Based on Mr Gibson's affidavit, it appears that Mr Aderemi's application to the SAT was listed for mediation in June 2024. On the day before that mediation was to take place, Mr Aderemi sent an email to TAFE's counsel, in which he said that he had 60 days within which to lodge a complaint with the AHRC for 'Racial Hatred, Victimisation, Misleading and Deceptive Conduct, and breach of the [Public Service Act] against your client'. Mr Aderemi's email concluded with the following paragraph:

Hopefully we can resolve all of these matters amicably tomorrow at mediation. If not, I wouldn't hesitate to submit the application immediately after mediation tomorrow.

1. The respondents submit that Mr Aderemi's email establishes that he commenced these proceedings 'for the stated purpose of placing pressure on [TAFE] to settle the SAT proceeding'. On that basis, the respondents submit that even if Mr Aderemi is entitled to institute these proceedings, they nevertheless ought be permanently stayed or dismissed under ss 22 and 23 of the Federal Court of Australia Act 1976 (Cth) or on the basis that it is an abuse of process pursuant to r 26.01(d) of the Federal Court Rules 2011 (Cth). As will be seen, it is unnecessary to deal with this submission.
2. It is now convenient to identify the relevant issues that must be resolved.

1. Having regard to the respective positions taken by the parties to these proceedings, two broad issues emerge.
2. The first issue is whether s 6A(2) of the Racial Discrimination Act operates so that Mr Aderemi is deemed not to be entitled to institute these proceedings.
3. The second issue is whether, on the assumption that Mr Aderemi is entitled to institute these proceedings, he should be granted leave pursuant to s 46PO(3A)(a) of the Australian Human Rights Commission Act.
4. I will deal with those issues in turn.

Is Mr Aderemi deemed not to be entitled to institute these proceedings?

1. Because there is a dispute about the proper construction of s 6A(2) of the Racial Discrimination Act, it is necessary to reproduce that provision in full:

(1) This Act is not intended, and shall be deemed never to have been intended, to exclude or limit the operation of a law of a State or Territory that furthers the objects of the Convention and is capable of operating concurrently with this Act.

(2) Where:

(a) a law of a State or Territory that furthers the objects of the Convention deals with a matter dealt with by this Act; and

(b) a person has, whether before or after the commencement of this section, made a complaint, instituted a proceeding or taken any other action under that law in respect of an act or omission in respect of which the person would, but for this subsection, have been entitled to make a complaint under the Australian Human Rights Commission Act 1986 alleging that the act or omission is unlawful under a provision of Part II or IIA of this Act;

the person shall be deemed never to have been, and is not, entitled to make a complaint or institute a proceeding under the Australian Human Rights Commission Act 1986 alleging that the act or omission is unlawful under a provision of Part II or IIA of this Act and any proceedings pending under this Act at the commencement of this section in respect of such a complaint made before that commencement are, by force of this subsection, terminated.

(3) Where:

(a) a law of a State or Territory that furthers the objects of the Convention deals with a matter dealt with by this Act; and

(b) an act or omission by a person that constitutes an offence against that law also constitutes an offence against this Act;

the person may be prosecuted and convicted either under that law of the State or Territory or under this Act, but nothing in this subsection renders a person liable to be punished more than once in respect of the same act or omission.

1. The 'Convention' that is referred to in s 6A is the International Convention on the Elimination of All Forms of Racial Discrimination that was opened for signature on 21 December 1965 and was then entered into force on 2 January 1969 (Convention): s 3 of the Racial Discrimination Act. The English text of the Convention is set out in the Schedule to the Racial Discrimination Act.
2. Section 6A was introduced into the Racial Discrimination Act by the Racial Discrimination Amendment Act 1983 (Cth), which commenced on 19 June 1983. The circumstances in which s 6A was introduced were comprehensively described by Mansfield J in Elekwachi at 281-282:

The circumstances leading to its introduction were identified by the Minister in the House of Representatives in the Second Reading Speech (Hansard, House of Representatives, 25 May 1983, pp 923-924) as a result of the decision of the High Court in Viskauskas v Nyland [1983] HCA 15; (1983) 153 CLR 280. In that case, the High Court concluded that s 19 of the Anti-Discrimination Act 1977 (NSW) was inconsistent with s 13 of the Racial Discrimination Act, and that a complaint under the NSW Act was therefore incompetent. That was not because there was direct inconsistency between the legislation, but because in respect of racial discrimination the Racial Discrimination Act was intended to cover the field, at least so far as the operation of s 19 of the NSW legislation operated. Thus, by reason of s 109 of the Constitution, it was invalid. The Minister stated:

'The Court took the view that the Commonwealth Racial Discrimination Act was intended to cover the whole area of racial discrimination prohibition in Australia, and therefore it was not possible for the State legislation to operate in the same field.

...

The Government takes the view that constructive developments have taken place in some States in the field of anti-discrimination law and that Federal measures should not impinge upon those developments. The High Court decision has meant that the constructive New South Wales racial discrimination provisions are no longer effective. The New South Wales Government has asked that urgent action be taken to overcome the effect of the Court decision, and the Government agrees that it is desirable to do so.

The Bill makes it clear that State and Territory legislation which furthers the objects of the Racial Discrimination Convention can stand alongside the Commonwealth legislation. The States of course will need to ensure that their legislation does further those objects and is in a form in which it is able to operate concurrently with the Commonwealth Act.

In New South Wales there were a large number of complaints in various stages of investigation when the Court decision was announced. The Bill has been drafted in such a way as to allow those cases to continue under the State legislation.

As it will be possible in many cases for a person to pursue a remedy under either Commonwealth or State law, provisions have been included to prevent a person from taking action under both laws in respect of the same matter and also to prevent the difficulty presented by double penalties.'

It will be seen that the problem which gave rise to the amending Act, as the major part of that Second Reading Speech suggests, was addressed in s 6A(1) of that Act. The observations relating to s 6A(2) of that Act are very short. Section 6A(2) is apparently intended both to address the question of then existing concurrent proceedings and also to prevent a person from taking action under both Commonwealth and State laws in respect of the same subject matter. Section 6A(3) is intended to prevent the difficulty presented by double penalties.

1. The respondents submit that in the circumstances of this case, s 6A(2) of the Racial Discrimination Act deems that Mr Aderemi has never been, and is not, entitled to institute these proceedings. Mr Aderemi disputes that submission and argues that s 6A(2) is not engaged.
2. The parties' respective submissions give rise to a question of statutory construction. In that regard, it is well settled that the current general approach to statutory interpretation was set out by Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] (which was cited by Gageler CJ, Gordon and Edelman JJ in R v Rohan [2024] HCA 3; (2024) 280 CLR 288 at [25] and by the Full Court in Bakers Delight Holdings Ltd v Fair Work Ombudsman [2025] FCAFC 144 at [83]):

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense.

(footnotes omitted)

1. The evident purpose of s 6A(1) is to ensure that, notwithstanding s 109 of the Constitution, the laws of the States and Territories that further the objects of the Convention can operate concurrently with the Racial Discrimination Act. However, having decided to allow those laws to operate concurrently with each other, Parliament clearly considered that it was necessary to avoid the potential for certain complaints, proceedings or other action to be taken under the laws of the States and Territories, as well as under the Australian Human Rights Commission Act.
2. Based on its text, it is evident that the purpose of s 6A(2) is to prevent the making of complaints or the instituting of proceedings under the Australian Human Rights Commission Act in respect of an act or omission, where a complaint has already been made, a proceeding has already been instituted, or other action has already been taken under a concurrently operating State or Territory law, in respect of the same act or omission.
3. Sections 6A(2)(a) and 6A(2)(b), respectively, provide for the pre-conditions that must be satisfied before a person 'shall be deemed' not to be entitled to make a complaint or institute proceedings (including a proceeding in this Court) under the Australian Human Rights Commission Act.
4. At a high level of generality, it may be seen that the condition in s 6A(2)(a) is broadly concerned with the question of whether the Racial Discrimination Act and a relevant law of a State or Territory do in fact have a field of concurrent operation. However, whether the condition in s 6A(2)(a) will be satisfied in a particular case will depend on the terms of the relevant 'law of a State or Territory', and whether, by those terms, that law furthers the objects of the Convention, and 'deals with a matter dealt with by' the Racial Discrimination Act.
5. When read with the reference in s 6A(2)(b) to a person having 'made a complaint, instituted a proceeding or taken any other action under that law' (emphasis added), it is clear that the relevant 'law of a State or Territory', for the purpose of s 6A(2)(a), is the law under which a person has already made a complaint, instituted a proceeding, or taken any other action when they first sought to make a complaint or institute proceedings under the Australian Human Rights Commission Act. This means that the question that arises under s 6A(2)(a) is whether that law, so identified, 'furthers the objects of the Convention', and whether it 'deals with a matter dealt with by [the Racial Discrimination Act]'.
6. It is uncontroversial that when Mr Aderemi filed his originating application, he had already made the EOC complaint, and that it was made under a law of the State of Western Australia, namely, the Equal Opportunity Act. It is also uncontroversial that the Equal Opportunity Act furthers the objects of the Convention. In that regard, Art 2 of the Convention provides that the State Parties to that Convention 'condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races'. Article 2 also relevantly provides that, to this end, each State Party 'shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization'.
7. Additionally, Art 5 of the Convention provides that,

[i]n compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law.

1. Article 5 then lists several rights, the enjoyment of which are to be guaranteed, relevantly including:

(1) The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration.

(2) The right to housing.

(3) The right to education and training.

(4) The right to equal participation in cultural activities.

(5) The right of access to any place or service intended for use by the general public such as transport, hotels, restaurants, cafes, theatres and parks.

1. When viewed in this context, it is clear that the Equal Opportunity Act does indeed further the objects of the Convention. In that regard, reference need only be made to s 3 of the Equal Opportunity Act, which provides that:

(a) to eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status or pregnancy, family responsibility or family status, sexual orientation, race, religious or political conviction, impairment, age, publication of relevant details on the Fines Enforcement Registrar's website or, in certain cases, gender history in the areas of work, accommodation, education, the provision of goods, facilities and services and the activities of clubs; and

(b) to eliminate, so far as is possible, sexual harassment and racial harassment in the workplace and in educational institutions and sexual harassment and racial harassment related to accommodation; and

(d) to promote recognition and acceptance within the community of the equality of persons of all races and of all persons regardless of their sexual orientation, religious or political convictions or their impairments or ages.

1. What is in issue is whether the Equal Opportunity Act 'deals with a matter dealt with by [the Racial Discrimination Act]', for the purposes of s 6A(2)(a) of the Racial Discrimination Act.
2. The respondents submit that the phrase 'deals with a matter' in s 6A(2)(a) should be construed broadly, and that the word 'matter' is used generally in the sense of 'subject matter'. In that regard, the respondents submit that a 'matter' that is 'dealt with' by both the Equal Opportunity Act and by the Racial Discrimination Act means 'unfavourable acts or omissions on the ground of race'.
3. On the other hand, in Mr Aderemi's written submissions, which appear to have been prepared by someone who has had at least some legal training, it is submitted that the word 'matter' in s 6A(2)(a) should be given a more restricted meaning. In particular, it is submitted that the word should be given a 'confined and precise scope, referring to a legally cognisable controversy based on specific statutory rights or duties arising under the [Racial Discrimination Act], and not merely a generalised area of subject matter such as racial conduct or discrimination broadly'. It is argued that the word 'matter' refers not to a 'broad subject matter, but to a distinct statutory cause of action or legal right'. Mr Aderemi says that even if the factual allegations underlying his EOC complaint and the claims he seeks to make in these proceedings bear some similarity, the 'source of law, the definitions of discrimination, and the available remedies differ in meaningful ways' such that 'it cannot be said that both Acts deal with the same "matter"' in the sense required to engage s 6A(2)(a).
4. I do not accept Mr Aderemi's submissions.
5. There are three preliminary points that can be made about the text of s 6A(2)(a).
6. Firstly, when s 6A(2)(a) is read as a whole, it may be seen that it will only be engaged if there has been a complaint made, proceedings instituted, or other action taken, under a law of a State or Territory that both furthers the objects of the Convention and that also 'deals' with a 'matter' that is 'dealt with' by the Racial Discrimination Act.
7. Secondly, is not necessary for the laws of a State or Territory, with which s 6A(2) is concerned, to deal with all of the matters that are dealt by the Racial Discrimination Act. It is sufficient if the relevant law of a State or Territory 'deals with a matter' (emphasis added) that is 'dealt with' by the Racial Discrimination Act.
8. Thirdly, while a matter that is dealt with by a law of a State or Territory must be the same as a matter that is dealt with by the Racial Discrimination Act, there is nothing in the text used in s 6A(2) to suggest that the matter must be 'dealt with' in exactly the same way.
9. Having made those preliminary points, it is then necessary to observe that the word 'matter' is susceptible to several different meanings, depending on the context in which it is used. According to the Oxford English Dictionary (online edition, as at November 2025), the word 'matter' can refer to '[a]n event, circumstance, fact, question, state or course of things, etc., which is or may be an object of consideration or practical concern; a subject, an affair, a business'. However, it can also be used to describe '[a] subject of contention, dispute, litigation'. For example, where the word 'matter' is used in ss 75 and 76 of the Constitution, it 'encompasses a justiciable controversy about a legal right or legal duty': Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 276 CLR 216 at [31] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ).
10. In construing the word 'matter' it is, of course, necessary to have regard to the context in which it appears. In that regard it is important to note that s 6A(2)(a) directs attention to the question of whether 'a matter dealt with' (emphasis added) by the Racial Discrimination Act, is a 'matter' that a relevant law of a State or Territory also 'deals with' (emphasis added). The ordinary meaning of the phrase 'to deal with' is 'to act in regard to, administer, handle, dispose in any way of (a thing)... to handle effectively; to grapple with; to take successful action in regard to' and 'to act towards (a person), to treat (in some specified way)': Oxford English Dictionary (online edition as at November 2025). According to the Macquarie Dictionary (online edition as at November 2025), 'deal with' is, relevantly, defined as 'to occupy oneself or itself with' and 'to take action with respect to; handle'. The Merriam-Webster dictionary (online edition as at November 2025) relevantly defines the phrase 'deal with' as 'to do something about (a person or thing that causes a problem or difficult situation)'.
11. In light of those ordinary meanings, and having regard to the fact that s 6A(2)(a) falls to be construed in a context in which it essentially asks whether legislation 'deals with a matter', it is clear that s 6A(2)(a), properly construed, asks whether relevant State or Territory legislation that furthers the objects of the Convention, seeks to do something about, or to grapple with, or to take action with respect to a subject, or a circumstance or a state of things that is also 'dealt with' by the Racial Discrimination Act.
12. I have reproduced the objects of the Equal Opportunity Act earlier in these reasons. Relevantly, the objects of that Act include the elimination, so far as is possible, of discrimination against persons on the ground of race, in the areas of work, accommodation, education, the provision of goods, facilities and services and the activities of clubs. Similarly, the preamble to the Racial Discrimination Act provides, in part, that Parliament considered that it was desirable to make provision for the 'prohibition of racial discrimination and certain other forms of discrimination'. Accordingly, at that high level of generality, it may be seen that the Equal Opportunity Act and the Racial Discrimination Act both 'deal with' the subject of racial discrimination.
13. At a more granular level, while there are differences in the way in which the two Acts seek to tackle the issue of racial discrimination, there is no question that this is their purpose. For example, the respective definitions of racial discrimination that are employed in the two Acts are different. Nevertheless, both of those definitions address the same essential subject matter. In that regard, s 36(1) of the Equal Opportunity Act relevantly provides that,

a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of race if, on the ground of -

(a) the race of the aggrieved person; or

(b) a characteristic that appertains generally to persons of the race of the aggrieved person; or

(c) a characteristic that is generally imputed to persons of the race of the aggrieved person,

the discriminator -

(d) treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person of a different race; or

(e) segregates the aggrieved person from persons of a different race.

1. By comparison, s 9(1) of the Racial Discrimination Act provides that,

[i]t is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

1. Divisions 2 and 3 of Pt III of the Equal Opportunity Act also contain various provisions that declare that in certain specific circumstances, it will be unlawful to discriminate on the ground of race, including, in the context of work (ss 37 to 43), as well as in other areas such as education (s 44), access to places and vehicles (s 45), the provision of goods, services and facilities (s 46), the provision of accommodation (s 47), the disposal of land (s 47A), the membership of clubs (s 48), and in relation to the provision of information (s 49).
2. Similarly, the Racial Discrimination Act also confronts the problem of racial discrimination in specific contexts. In that regard, the Racial Discrimination Act provides that in similar circumstances to those dealt with by the Equal Opportunity Act, such as in relation to access to places and facilities (s 11), access to land, housing and other accommodation (s 12), the provision of goods and services (s 13), and employment (s 15), certain acts or omissions, by reason of race, will be unlawful.
3. Accordingly, although the Equal Opportunity Act and the Racial Discrimination Act have their own definitions of racial discrimination and seek to deal with the issue of discrimination on the ground of race in different ways, both Acts nevertheless 'deal with' the 'matter' of racial discrimination, and do so in a way that furthers the objects of the Convention. It follows that Mr Aderemi's contention that s 6A(2)(a) is not engaged in the circumstances of this case must be rejected.
4. In my view, the pre-condition in s 6A(2)(a) of the Racial Discrimination Act is satisfied in the circumstances of this case.
5. Having dealt with s 6A(2)(a), it is necessary to turn to s 6A(2)(b).
6. Section 6A(2)(b) may be broken up into the following constituent parts:

(1) a person must have made a complaint, instituted proceedings, or taken any other action, under a law of a State or Territory;

(2) the relevant complaint, proceedings or other action taken under that law must have been 'in respect of an act or omission'; and

(3) the relevant act or omission must be an act or omission 'in respect of which the person would, but for [s 6A(2)], have been entitled to make a complaint under the Australian Human Rights Commission Act 1986, alleging that the act or omission is unlawful under a provision of Part II or Part IIA' of the Racial Discrimination Act.

1. There is no question that the EOC complaint was a complaint that was made under a law of the State of Western Australia. Further, the EOC complaint was 'in respect of' acts in the form of statements that are alleged to have been made by Ms Johnstone to Mr Aderemi, specifically statements that were to the effect that 'Africans are high risk to the Australian society' and that he was 'delusional' to think that he could bring in a family member to study and successfully apply for a visa to study.
2. It is also clear that when Mr Aderemi made the EOC complaint, he would have been, but for s 6A(2) of the Racial Discrimination Act, entitled to make a complaint under the Australian Human Rights Commission Act, alleging that those statements were unlawful under Pt II or Pt IIA of the Racial Discrimination Act.
3. It follows that the pre-condition in s 6A(2)(b) of the Racial Discrimination Act is also satisfied in the circumstances of this case.
4. What this means is that Mr Aderemi is therefore deemed not to be entitled to institute a proceeding under the Australian Human Rights Commission Act alleging that the statements referred to earlier in these reasons at [108] are unlawful under a provision of Pt II of the Racial Discrimination Act. However, that is precisely what Mr Aderemi seeks to do here. Mr Aderemi seeks to institute proceedings under the Australian Human Rights Commission Act alleging that the statements referred to at [108] of these reasons amount to racial hatred contrary to s 18C of the Racial Discrimination Act, a provision that appears in Pt IIA of that Act.
5. Nevertheless, the same conclusion cannot be reached in relation to the victimisation claim. Section 6A(2)(b) has not been satisfied in respect of that claim. This is because the EOC complaint was not in respect of the acts that are alleged in these proceedings to amount to victimisation. As I have already explained, the first time that Mr Aderemi mentioned those acts was in the email he sent to the AHRC on 10 March 2024, which was well after Mr Aderemi made the EOC complaint.
6. It follows that the question of whether Mr Aderemi can make an application under s 46PO(1) of the Australian Human Right Commission Act, alleging unlawful discrimination on the basis of the acts that are alleged in the victimisation claim, will depend on whether leave should be granted under s 46PO(3A)(a) of that Act.
7. Before moving on to deal with the question of whether leave should be granted to Mr Aderemi, there is one further matter that must be dealt with. In his written submissions, Mr Aderemi argued that s 6A(2) 'does not preclude a later claim under the [Racial Discrimination Act] against a different respondent where the respondent was not named, and where the prior complaint cannot be said to have dealt with the same legal rights'. No doubt Mr Aderemi makes this submission because the EOC did not appear to treat Ms Johnstone as a person who was alleged to have engaged in discriminatory conduct under the Equal Opportunity Act, and because Ms Johnstone was not joined as a party to the proceedings in the SAT.
8. This submission cannot be accepted. As I have already explained, s 6A(2) is engaged, relevantly, if a person previously made a complaint, instituted proceedings, or took any other action, under a law of a State or Territory in respect of an act or omission. Where that act or omission was one in respect of which a person would have been entitled to make a complaint under the Australian Human Rights Commission Act, alleging that the act or omission is relevantly unlawful, the person is deemed not to be entitled to make a complaint or institute a proceeding under that Act alleging that the same act or omission is relevantly unlawful. It follows that the fact that Ms Johnstone was not a respondent to the EOC complaint or the subsequent SAT proceedings does not have any effect on the operation of s 6A(2) of the Racial Discrimination Act.
9. I will now turn to deal with the question of whether Mr Aderemi should be granted leave to make an application under s 46PO(1) of the Australian Human Rights Commission Act alleging that the respondents performed an act of victimisation. However, on the assumption that I am wrong in concluding that Mr Aderemi is deemed not to be entitled to institute these proceedings to make an application alleging racial hatred, I will also consider whether leave should be granted in relation to that allegation.

Should leave be granted under s 46PO(3A)(a) of the Australian Human Rights Commission Act?

1. It is convenient to first identify the relevant principles that must be applied in determining whether to grant leave under s 46PO(3A)(a) of the Australian Human Rights Commission Act, before then going on to explain why I would not grant leave to Mr Aderemi to institute proceedings to make either the victimisation claim or the racial hatred claim.

1. The principles that are to be applied in considering whether to grant leave under s 46PO(3A)(a) of the Australia Human Rights Commission Act were succinctly summarised by Stewart J in Przybylowski v Commonwealth of Australia [2025] FCA 862 at [15]- [17] in the following way:

The approach of the Court when granting leave under s 46PO(3A)(a) was described by Mortimer J in James v Workpower Inc [2018] FCA 2083 at [37] as being 'to consider ... whether the claims made by an applicant are reasonably arguable, and are - at the least - not fanciful'. Her Honour observed that this was not a particularly high bar, the purpose of the provision being to 'act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level': at [37]. That formulation is consistent with the language used in s 46P(1A), which imposes the requirement for a complaint that '[i]t must be reasonably arguable that the alleged acts, omissions or practices are unlawful discrimination'. These statements were approved by the Full Court in Weir v Telstra Ltd [2023] FCAFC 196; 301 FCR 261 at [56] per Collier ACJ, Rangiah and Thomas JJ.

In Workpower, Mortimer J went on to identify a range of other permissible considerations at [38], including:

• The circumstances of the parties, such as the importance of the subject matter of the complaint to the parties;
• The nature of the allegations made;
• The thoroughness with which the Australian Human Rights Commission dealt with the merits of the complaint;
• Whether there has been delay in complaining about the alleged discrimination;
• Whether other attempts at remediation of the alleged discrimination have occurred outside the complaint process;
• The factual and legal complexity of the matters raised;
• Whether those matters raise issues of public importance or of general application; and
• The general principles of leave including prejudice to parties.

Her Honour cautioned that the Court should avoid embarking on 'a detailed consideration and determination of the merits of the applicant's underlying arguments about unlawful discrimination': at [39]. Nevertheless, the Full Court in Weir noted at [58] that this ought to be qualified by the reasoning of the High Court in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 at [18]- [19], [28] and [41]; that is, the Court may appropriately engage in more than an 'impressionistic assessment of the merits' and instead conduct a 'detailed evaluation of the merits', such as where there is lengthy, unexplained delay.

1. The approach that was taken by Mortimer J (as her Honour then was) to s 46PO(3A)(a) in James v WorkPower Inc [2018] FCA 2083, which was referred to by Stewart J in Przybylowski, should not be understood as setting two standards, namely, a standard of 'reasonably arguable' and a further standard of 'at the least - not fanciful'. In that regard, in Wilson v Britten-Jones (No 2) [2020] FCA 1290, Abraham J said at [86]:

Properly read, James v WorkPower was not setting two different standards, with it necessarily being sufficient to simply determine whether the claim is fanciful or not, it being a lesser standard than reasonably arguable. Content is given to that term by the purpose of s 46PO(3A) as described in James v WorkPower, and as explained inter alia, at [43]. There must currently exist in the material relied on a factual basis to establish that the applicant's claim is reasonably arguable. Although questions of fact and law which are arguable are to be determined at the final hearing there must be a rational factual substratum for the allegations: James v WorkPower at [39], [43]. In other words, there must be some factual basis for the claims, even at a threshold level which is what is required for leave.

1. Further, as Horan J recently said in Rawson v South Metropolitan Health Service [2024] FCA 769 at [34], the merits of the claim and its prospects of success must be considered together with other factors relevant to the grant of leave: see also Makowski v Legal Profession Admission Board [2023] FCA 666 at [36].

1. The respondents submit that the Court should not grant leave pursuant to s 46PO(3A)(a) of the Australian Human Rights Commission Act because, for various reasons, Mr Aderemi does not have a reasonably arguable case that either of the respondents committed an act of racial hatred or an act of victimisation, contrary to ss 18C and 18AA of the Racial Discrimination Act and as alleged in the racial hatred claim and in the victimisation claim, respectively.
2. Mr Aderemi submits that if leave is required, then leave should be granted. However, he has not otherwise engaged with the respondents' submissions in any substantive way.

Should leave be granted in respect of the victimisation claim?

1. In my view, leave should not be granted to Mr Aderemi to make an application alleging that the respondents unlawfully committed an act of victimisation, contrary to s 18AA(1) of the Racial Discrimination Act. This is because the material upon which Mr Aderemi relies in support of his application for leave is incapable of establishing the victimisation claim.
2. Section 18AA(1) of the Racial Discrimination Act provides that it is unlawful for a person to 'commit an act of victimisation against another person'. Section 18AA(2) then identifies the various circumstances in which a person 'commits an act of victimisation against another person' for the purposes of s 18AA(1).
3. There is nothing in the materials before the Court to support an allegation that Ms Johnstone performed an act of victimisation by engaging in any of the conduct referred to in paras (a) to (c) of s 18AA(2). Those provisions are concerned only with conduct that occurs in an employment-related context. As a result, for the victimisation claim to succeed, Mr Aderemi must establish that Ms Johnstone '[imposed] any pecuniary or other penalty upon' him, for the purposes of s 18AA(2)(d).
4. Mr Aderemi must also establish that Ms Johnstone imposed such a penalty 'by reason that' he did, or proposed to do, one of the things provided for in paras (e) to (g) of s 18AA(2). As there is no factual foundation for s 18AA(2)(g), given that there is no suggestion that Mr Aderemi had attended or proposed to attend any conference held under the Racial Discrimination Act or the Australian Human Rights Commission Act, for the victimisation claim to succeed, Mr Aderemi must establish that Ms Johnstone imposed a penalty upon him by reason that he proposed to:

(1) make a complaint under the Racial Discrimination Act or the Australian Human Rights Commission Act: s 18AA(2)(e); or

(2) give any information or documents to a person exercising or performing any powers or functions under the Racial Discrimination Act or the Australian Human Rights Commission Act: s 18AA(2)(f).

1. The word 'penalty' is not defined in the Racial Discrimination Act. However, when considered in the context of s 18AA(2), which is concerned with acts that cause detriments and prejudice, it is plain that the word 'penalty' is to be given its ordinary meaning of a punishment, or a loss or disadvantage of some kind. Further, the 'penalty' with which s 18AA(2)(d) is concerned is one that has been 'imposed' on another person. When regard is then had to the ordinary meaning of the word 'imposed', it becomes clear that s 18AA(2)(d) is at least concerned with a person laying, inflicting or forcing upon another person a punishment, a loss or a disadvantage of some kind.
2. For the purposes of s 18AA(2), a person (the first person) will only commit an act of victimisation against another person if the first person 'imposes any... penalty upon' another person 'by reason that' such other person has taken, or proposes to take, one of the forms of action referred to in paras (e) to (g) of s 18AA(2). This means that there must be a causal link between:

(1) on the one hand, a person having made or having proposed to make a complaint under the Racial Discrimination Act or the Australian Human Rights Commission Act, or having given or having proposed to give any information or documents to a person exercising or performing any powers or functions under either of those Acts; and

(2) on the other hand, the imposition of a penalty on them by the first person.

1. The meaning of the phrase 'by reason that' in s 18AA of the Racial Discrimination Act does not appear to have been previously considered by this Court. However, the meaning of a similar phrase, 'because of', has been considered in the context of s 5 of the Disability Discrimination Act 1992 (Cth), which is in the following terms:

(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and

(b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

1. The Full Court considered this provision, and the causal link supplied by the phrase 'because of' in ss 5(1) and 5(2)(b) of the Disability Discrimination Act, in State of New South Wales - Sydney Trains v Annovazzi [2024] FCAFC 120 and said at [104]:

It will be apparent from the interaction of these statutory provisions that it will be necessary to identify the acts and conduct of the alleged discriminator, as well as the reasons for those acts and conduct. In Purvis v State of New South Wales [2003] HCA 62; 217 CLR 92, Gleeson CJ considered that the applicable provisions of the [Disability Discrimination Act] are concerned with the 'true basis' of the conduct in question: at [13]. The plurality stated at [236] that, relevantly, '...the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability?'

(original emphasis)

1. The Full Court also made the observation at [107] that the phrase 'because of', which appears in s 5 of the Disability Discrimination Act, is not a substitute for motive, purpose or effect, even if those concepts may bear on the question of determining why the discriminator acted in the way that he or she did. Further, at [108], the Full Court said that the answer to the central question of 'why?', will require the act, acts or conduct that are said to have been discriminatory to be identified as well as an examination as to why they were done or engaged in. The answer to that question will be fact dependent.
2. It is obviously necessary to exercise care when using cases that have construed other provisions in a different legislative context. Nevertheless, the above extract from Annovazzi is of considerable assistance. In my view, like s 5 of the Disability Discrimination Act, s 18AA(2) of the Racial Discrimination Act also raises a central question of why a person who is found to have performed one of the acts described in paras (a) to (d) of s 18AA(2), in respect of another person, did that act. If the answer to that question is because the other person engaged in any of the conduct referred to in paras (e) to (g) of s 18AA(2), then there will have been an act of victimisation, which will be rendered 'unlawful' by s 18AA(1).
3. In his original complaint to the AHRC, Mr Aderemi asserted that he believed that he had 'been victimised because [he] made, or tried to make, a complaint about discrimination'. I accept that a complaint under s 46P of the Australian Human Rights Commission Act is not to be construed as if it were a legal pleading: Rawson at [61]. However, Mr Aderemi did not include anything in that complaint that suggested that he had been victimised because Ms Johnstone had imposed a pecuniary or other penalty on him, let alone that such a penalty had been imposed 'by reason that' he proposed making a complaint to, or giving information or documents to, the AHRC.
4. I have already referred to the email that Mr Aderemi sent to the AHRC on 10 March 2024, some months after he first lodged his complaint. The relevant part of that email was in the following terms:

I submit that, 'victimisation' in the context of my complaint occurred when I informed the TAFE staff that I would be reporting her discriminatory, unprofessional and unethical conduct towards me to the Human Rights Commission, because I felt [I] was hated and in harm[']s way, dealing with people with such mindset. I submit that she victimised me for asserting my rights as an Australian Citizen of African background, and denied the applications I submitted on behalf [of] a loved one.

1. However, not only did this information not appear in the original complaint, it was also not referred to in the EOC complaint, or in the 'Statement of Issues, Facts and Contentions' that was subsequently filed in the SAT.
2. In circumstances in which there are no contemporaneous records in the materials before the Court that provide any support for Mr Aderemi's version of a conversation that is now alleged to have occurred well over two years ago, there are obvious difficulties with the victimisation claim. However, there are more fundamental problems with that claim.
3. Mr Aderemi asserts that Ms Johnstone committed an act of victimisation because she imposed a penalty upon him. Further, Mr Aderemi appears to allege that this penalty was imposed on him by reason that he proposed to make a complaint to, or to give documents or information to the AHRC. Doing the best I can, it appears that Mr Aderemi claims that Ms Johnstone imposed a penalty on him because she 'displayed unprofessional conducts [sic] during her interaction with [Mr Aderemi]'.
4. I am mindful that contested questions of fact should generally be left for determination at trial: Weir v Telstra Limited [2023] FCAFC 196; (2023) 301 FCR 261 at [59]. However, there are at least two significant difficulties with this aspect of the victimisation claim.
5. Firstly, it is not reasonably arguable that by simply displaying 'unprofessional conduct' towards Mr Aderemi, Ms Johnstone thereby imposed 'any pecuniary or other penalty' upon him for the purposes of s 18AA(2).
6. Secondly, and in any event, there is no factual basis in the material before the Court that Ms Johnstone ever even engaged in that alleged conduct. In that regard, in his email to the AHRC dated 10 March 2024, in which he articulated his victimisation claim, Mr Aderemi said only that:

I submit that [Ms Johnstone] victimised me for asserting my rights as an Australian Citizen of African background, and denied the applications I submitted on behalf [of] a loved one.

1. It is difficult to read that email as amounting to an allegation that Ms Johnstone imposed a 'penalty' on Mr Aderemi by displaying unprofessional conduct when interacting with Mr Aderemi. Instead, it is an allegation that Ms Johnstone denied applications that Mr Aderemi had submitted to TAFE on behalf of other people. This is the way in which the AHRC delegate said that she understood Mr Aderemi's allegation of victimisation:

From your email of 10 March 2024, it appears that you claim Ms Johnstone denied [Mr E's] application because you would be reporting 'her discriminatory, unprofessional and unethical conduct' towards you to the Human Rights Commission.

(original emphasis)

1. To the extent that Mr Aderemi's email to the AHRC might reflect the true nature of the victimisation claim, and that it is in fact alleged that Ms Johnstone imposed a 'penalty' by denying Mr E's application, there are at least two reasons why that version of the claim is also not reasonably arguable.
2. Firstly, on the questionable assumption that the denial of a student study application could amount to a 'penalty', it was Mr E's application that was denied, not Mr Aderemi's. This is significant because s 18AA(2) relevantly provides that a person commits an act of victimisation when they impose a penalty on another person by reason that the other person has taken or who proposes to take a form of the various actions referred to in paras (e) to (f) of s 18AA(2).
3. Secondly, and in any event, there is nothing in the materials before the Court that could rationally support a conclusion that it was Ms Johnstone who denied Mr E's application.

Should leave be granted in respect of the racial hatred claim?

1. I have already concluded that by operation of s 6A(2) of the Racial Discrimination Act, Mr Aderemi is deemed not to be entitled to institute proceedings alleging that the act that is the subject of the racial hatred claim is unlawful, contrary to s 18C of the Racial Discrimination Act. It necessarily follows from that conclusion that the racial hatred claim is not reasonably arguable and that leave to make an application under s 46PO(1) of the Australian Human Rights Commission Act in respect of that claim must therefore be refused. However, on the assumption that I am wrong in reaching that conclusion, I will explain why I would refuse to grant leave in respect of that claim in any event.
2. To establish the racial hatred claim, Mr Aderemi must prove all the three elements of s 18C(1) of the Racial Discrimination Act. Those elements are: (1) the relevant act must have been done 'otherwise than in private', (2) the act must be one that is 'reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate', and (3) the act must have been done 'because of the race, colour or national or ethnic origin' of a person or group of people: Faruqi v Hanson [2024] FCA 1264 at [25], citing Jones v Scully [2002] FCA 1080; (2002) 120 FCR 243 at [95], Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16; (2004) 135 FCR 105 at [63] (French J) and Bharatiya v Antonio [2022] FCA 428 at [16]- [18].
3. In the circumstances of this case, it is only necessary to focus on the second of those elements.
4. The assessment that is required for the purposes of the second element must be made by reference to 'all the circumstances': Faruqi at [219]. Further, the second element requires an objective enquiry to be made into 'the likely effect of the act upon a hypothetical person in the circumstances of the applicant or as a member of the relevant group': Faruqi at [224], citing Bharatiya at [14], [17], Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 at [15], Creek v Cairns Post Pty Ltd [2001] FCA 1007; (2001) 112 FCR 352 at [12]- [13], Bropho at [66] (French J); Jones at [98]-[99]; Clarke v Nationwide News Pty Ltd trading as The Sunday Times [2012] FCA 307; (2012) 201 FCR 389 at [46].
5. At [238]-[240] of Faruqi, Stewart J said:

The words 'offend, insult, humiliate or intimidate' take their ordinary English meanings ... [T]hose meanings may include the following:

offend - to vex, annoy, displease, anger, now esp to excite personal annoyance, resentment, or disgust (in anyone) (Now the chief sense).

insult - to assail with scornful abuse or offensive disrespect; to offer indignity to; to affront, outrage ...

humiliate - to make low or humble in position, condition or feeling, to humble ... to subject to humiliation; to mortify.

intimidate - to render timid, inspire with fear; to overawe, cow, now esp to force to or deter from some action by threats or violence.

However, [s 18C(1)(a)] only applies to conduct that has 'profound and serious effects, not to be likened to mere slights'. While there is 'an aspect of gravity or severity inherent in the prohibition', 'the effect need not be at the extreme level of "racial hatred'''.

The requirement that the act is 'reasonably likely' to have the requisite effect is satisfied if there is a 'real' and 'not fanciful or remote ... chance' of the relevant outcome. That is to be assessed on the balance of probabilities on which the applicant bears the onus of proof.

(citations omitted)

1. In her reasons for deciding to terminate Mr Aderemi's complaint, the AHRC delegate correctly referred to the need to have regard to context when considering whether a particular act may contravene s 18C of the Racial Discrimination Act. In that respect, the AHRC delegate said:

From the information you have provided it appears that in response to your complaint to the [Western Australian Equal Opportunity Commission] about the same subject matter, TAFE advised the [Western Australian Equal Opportunity Commission] that the comment about African applicants being 'high risk' was made in the context of the Commonwealth Department of Home Affairs visa related assessments, which deem offshore Nigerian student applicants aged 30 to 34 as 'high risk' and requiring a higher level of documentary documentation.

1. As I have already mentioned, Mr Aderemi relies on an affidavit that he affirmed on 29 October 2024 in support of his application for leave. Several documents are attached to that affidavit. In the affidavit Mr Aderemi expressly attested to the fact that all of the information in those documents is true to the best of his knowledge. In any event, as this is an interlocutory proceeding, the hearsay rule does not apply to that affidavit to the extent that Mr Aderemi has also adduced evidence of its source: s 75 of the Evidence Act 1995 (Cth).
2. One of the documents that is attached to Mr Aderemi's affidavit is a document entitled 'Equal Opportunity Commission Response to Complaint from Mr Tony Aderemi - Against TAFE International Western Australia (TIWA)' (TAFE's EOC response). A further document that is attached to that affidavit is an email that a Conciliation Officer at the EOC sent to Mr Aderemi on 28 September 2023. That email makes it clear that TAFE's EOC response is the same as the response that was referred to by the AHRC delegate in her reasons.
3. TAFE's EOC response contains the following information:

• [TAFE International Western Australia] is a registered training provider trading under the Department of Training and Workforce Development (DTWD) and is responsible for the admission and enrolment of international students at Western Australian TAFE colleges.
• Mr Tony Aderemi has been assisting a prospective student, [Mr E], a 34‑year‑old Nigerian national seeking to study at TAFE.
• The Commonwealth Department of Home Affairs (Home Affairs) is responsible for granting student visas to study onshore in Australia.
• Home Affairs requires applicants for a Student visa to demonstrate they are a Genuine Temporary Entrant (GTE) meaning they need to demonstrate they intend to be in Australia temporarily to gain a quality education.
• Home Affairs assess GTE for all student visa applications and country of citizenship is allocated an 'evidence level index' (see Attachment 1).
• Applicants from Nigeria are deemed high risk, and subject to more stringent assessment criteria and a higher level of evidentiary documentation is required than applicants from countries with a lower evidence level index.
• Home Affairs requires all international education providers to assess applications against GTE criteria, prior to making an offer of enrolment to prospective students.
• If an education provider approves an application that is subsequently refused by Home Affairs for a student visa, this can negatively impact the education provider's institutional risk rating. A higher institutional risk rating makes it more difficult for WA TAFE colleges to attract and enrol international students.
• Home Affairs current visa refusal rate for offshore Nigerian students aged between 30 and 34 applying for a VET course is 100% (see Attachment 2).

1. Accordingly, and based on the evidence upon which Mr Aderemi relies, at the time Ms Johnstone is alleged to have made the statements amounting to an act of racial hatred, the Department of Home Affairs required that applicants for student visas demonstrate that they were are a Genuine Temporary Entrant (GTE). Further, before making an offer of enrolment to prospective students, international education providers were required to undertake assessments of GTEs by reference to an 'evidence level index'. Applicants who are Nigerian nationals and aged between 30 and 34, as Mr E was, were deemed by that index to be 'high risk' and subject to more stringent assessment criteria and a higher level of evidentiary documentation than is required for applicants from countries with a lower evidence level index. What is of significance is that this context forms part of 'all the circumstances' in which an assessment must be carried out for the purpose of the second element of s 18C of the Racial Discrimination Act, namely, whether the act is reasonably likely to offend, insult, humiliate, or intimidate another person or a group of people.
2. The statements that Mr Aderemi alleges were made by Ms Johnstone are to the effect that he 'is delusional to think he could bring his high-risk African family members to come to Australia to live or study' and that 'Africans are high risk to the Australian society'. In my view, even if Mr Aderemi were able to establish that Ms Johnstone made those statements, it is not reasonably arguable that, when considered in the relevant context as is required by s 18C, the statements would amount to an act that is reasonably likely to offend, insult, humiliate or intimidate another person or a group of people. That is particularly so when regard is had to the fact that what is required is conduct that has 'profound and serious effects, not to be likened to mere slights'.
3. In my view, and based on Mr Aderemi's own evidence, there is no factual basis to establish that this claim is reasonably arguable. Instead, when considered in the particular context to which I have referred at [151]-[153] of these reasons, the facts upon which Mr Aderemi himself relies demonstrate that the statements alleged to have been made by Ms Johnstone reflect the 'evidence level index' that the Department of Home Affairs required TAFE to apply in respect of Nigerian nationals in Mr E's age bracket, and that those statements were therefore not reasonably likely to offend, insult, humiliate or intimidate another person or a group of people for the purposes of s 18C of the Racial Discrimination Act.

1. In his supplementary written submissions, Mr Aderemi raises several issues about what he suggests are 'inconsistencies' in relation to the conduct of the EOC. Specifically, he suggests that there is a lack of clarity and consistency within the EOC about whether complaints can be brought against individual respondents. He says that this inconsistency undermines any suggestion that he made an informed election to pursue TAFE, and not Ms Johnstone, under the State EOC regime.
2. Mr Aderemi also suggests that the EOC sometimes communicates with the AHRC when aspects of a complaint are not covered by the Equal Opportunity Act. He says that this supports the proposition that the Equal Opportunity Act does not deal with all 'matters' for the purposes of s 6A(2) of the Racial Discrimination Act.
3. Finally, Mr Aderemi says that the EOC has, from time to time, exercised a discretion in selecting which aspects of a complaint to investigate or refer. He says that when a matter proceeds to the SAT, complainants are often told that they cannot raise allegations that were not included in the original complaint referred by the EOC. On that basis, Mr Aderemi suggests that this gives rise to procedural unfairness because a complainant is thereby 'precluded from ventilating all relevant grievances' and that it cannot be said that a complainant has made 'a clear and knowing election to pursue all relevant legal rights under the Equal Opportunity Act'. He goes on to say that it would be unjust and inconsistent with the legislative purpose of s 6A of the Racial Discrimination Act to treat the lodging of a complaint with the EOC 'as an irrevocable election that bars a complainant from seeking relief under the [Racial Discrimination Act] for conduct that was not properly addressed or allowed to be raised at the State level'.
4. There is no evidence to support any of those contentions. In any event, none of those contentions are relevant to the determination of whether Mr Aderemi is deemed by operation of s 6A(2) of the Racial Discrimination Act not to be entitled to institute these proceedings, or whether leave should be granted under s 46PO(3A)(a) of the Australian Human Rights Commission Act to make an application under s 46PO(1) of that Act.

1. Relying on the email Mr Aderemi sent to TAFE's counsel the day prior to the SAT mediation, which I referred to at [67] of these reasons, the respondents submit that these proceedings are an abuse of process. In that regard, the respondents submit that these proceedings were commenced for the improper purpose of pressuring TAFE into agreeing to settle the proceedings that were then before the SAT.
2. As I have already said, given my conclusions that Mr Aderemi is deemed not to be entitled to commence these proceedings insofar as he seeks to make the racial discrimination claim, and that leave should nevertheless be refused in respect of the racial discrimination and the victimisation claim, it is unnecessary to resolve this aspect of the respondents' submissions.

1. Mr Aderemi is deemed by s 6A(2) of the Racial Discrimination Act not to be entitled to institute a proceeding under the Australian Human Rights Commission Act alleging that the act that forms the basis of the racial hatred claim is unlawful, contrary to s 18C of the Racial Discrimination Act. It follows that leave to make an application to this Court pursuant to s 46PO(1) of the Australian Human Rights Commission Act, alleging unlawful discrimination by the respondents based on the racial hatred claim, must be refused. Even if I am wrong in that conclusion, I would nevertheless refuse to grant leave on the basis that the racial hatred claim is not otherwise reasonably arguable.
2. I would also refuse to grant leave to make an application to this Court pursuant to s 46PO(1) of the Australian Human Rights Commission Act alleging unlawful discrimination by the respondents on the basis of the victimisation claim.
3. I will hear the parties further on the question of costs.

I certify that the preceding one hundred and sixty-five (165) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Vandongen.