Ealing London Borough Council v Race Relations Board

Introduction This is an appeal from the decision of a judge of this Court, on 21 April 1998, to dismiss an application for a declaration under s 10 of the Racial Discrimination Act 1975 (Cth) ("the RDA"). The appellant, who had brought the application and brings this appeal as a representative party of a group of 690 applicants ("the Group"), claims that by reason of the provisions of Statutory Rule No 279 of 1997 ("the Statutory Rule") the Group did not enjoy a right enjoyed by persons of other national origins (Iraq, Kuwait, Lebanon, China, Sri Lanka and States comprising the former Yugoslavia) and that accordingly s 10 of the RDA operated to entitle them to enjoy the rights conferred by the Statutory Rule to the same extent as persons of those other national origins.

Factual Background The following description of the factual background is taken largely from the reasons for judgment of the learned primary judge and includes some of his Honour's findings of fact. On 13 June 1997 the respondent announced that the Australian Government had decided to resolve uncertainty surrounding the future status of certain groups of people who, for humanitarian reasons, had been allowed to remain in Australia as long-term temporary residents. It had been the practice of successive Australian Governments over many years to provide, for humanitarian reasons, extension of stay concessions for people temporarily in Australia who were suddenly faced with serious disruptions in their home countries and who would have faced acute difficulties if required to return home from Australia at that time. These concessions enabled such persons to obtain an extension of their residence entitlement, usually by way of visa, to remain lawfully in Australia pending the resolution of the situation in their home countries. The measures were reviewed from time to time. The concessional treatment ceased when current developments in those countries indicated that such a concession was no longer necessary. On 1 October 1997, two categories of visas were created to resolve the status of those persons who had been allowed to remain in Australia. The visas came to be known as Resolution of Status Visas (850 and 851 respectively). They were given statutory effect through the Statutory Rule, by amending the relevant schedules to the Migration Regulations. Visa 850 is a temporary visa. Visa 851 provides for permanent residence if certain conditions are satisfied. The requirements to be satisfied for entitlement to either visa included: · lawful entry into Australia, before certain specified dates, as the holder of a passport of a specified country; and · citizenship of, and being usually resident in, that country immediately before such entry. The specified countries and the specified dates ("the Cut Off Dates") were as follows: (a) Iraq and Kuwait - on or before 31 October 1991, (b) Lebanon - on or before 30 November 1991, (c) PRC - on or before 1 November 1993, (d) Sri Lanka - on or before 1 November 1993, and (e) former Yugoslavia - on or before 1 November 1993. [On 1 November 1993 the Minister for Immigration at the time, had announced a measure enabling nationals of the PRC, who had arrived in Australia before 20 June 1989 (the time of the Tiananmen Square incident), to acquire permanent residence. At the same time he also announced the creation of additional permanent residence categories. This government decision was given statutory effect through SR 11 of 1994.] The uncontradicted evidence indicated that: · the Cut Off Dates were fixed having regard to the periods of disruptions and disturbances in those countries and Australia's economic and budgetary constraints on providing general assistance beyond the countries and dates fixed; · the decision provided a cut-off between those who had been in Australia for a lengthy period without their status having been resolved, and those who had arrived more recently in the light of improving circumstances in their home countries in the knowledge that they would be required to return home; · in particular, the Cut-Off Dates for citizens of Iraq, Kuwait and Lebanon reflected the dates when earlier temporary concessions for those nationals ceased. They were fixed to normalise the position of those individuals who remained in Australia beyond those dates with their status unresolved; · the Cut-Off Date for the citizens of the PRC, Sri Lanka and the former Yugoslavia were consistent with the former Minister's decision of 1 November 1993, which made permanent residence available to certain groups primarily from the PRC. However, it also included persons from Sri Lanka and the former Yugoslavia, who had applied for refugee status or had been granted humanitarian temporary entry permits and who had met age and other qualification criteria; · the 1997 decision recognised that the earlier governmental decisions had generated hopes and expectations in other citizens of those countries in Australia at the time, from broadly similar situations, that they would also be allowed to stay; and · at the time of the 1997 decision, it was contemplated that the proposed measures would enable about 8,000 people to apply for the new visas. The appellant, who was born in the Republic of the Philippines on 25 May 1958, entered Australia on 25 October 1991 as the holder of a passport issued by that country. On arrival she was granted an entry permit which was valid for three months. On 24 October 1997, the appellant lodged an application for both an 850 Resolution of Status (Temporary) visa and an 851 Resolution of Status visa. Her application was refused because she was not the holder of a passport of one of the countries specified in the regulations. The appellant contended, both at first instance and on appeal, that the limitation (by reference to the specified countries), of the right to apply for the new visas attracted the operation of s 10 of the RDA. The specific provisions which contain those limitations [sub-clause 1216A(3)(b) of Part 2 of Schedule 1; sub-clause (3) of clause 850.212 and clause 850.213 of Schedule 2 of the Statutory Rule] will be referred to as the "Visa Provisions". The Relevant Statutory Provisions Section 10 of the RDA relevantly provides: "Rights to equality before the law 10. (1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin. (2) A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention." (Emphasis added) The Convention referred to is the International Convention on the Elimination of All Forms of Racial Discrimination, which came into force on 21 December 1965. By s 504(1) of the Migration Act 1958 (Cth) ("the Migration Act"), the Governor-General is empowered to make regulations required or permitted to be made or which are necessary or convenient to give effect to that Act. Section 31 of the Migration Act provides for regulations which prescribe criteria for visas of specified classes. The object of the Migration Act is set out in s 4 which provides: "4.(1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. (2) To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain. (3) To advance its object, this Act requires persons, whether citizens or non-citizens, entering Australia to identify themselves so that the Commonwealth government can know who are the non-citizens so entering. (4) To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act." The Decision at First Instance The following is a summary of only those parts of the primary judge's decision which led to the application being dismissed. National Origin The primary judge noted that the requirement, in the Visa Provisions, that an applicant has entered Australia as the holder of a valid passport of one of the specified countries, did not in terms select "national origin" as the factor which enlivened its operation. Nor did it refer to race, colour, or ethnic origin. His Honour held that the Visa Provisions could not be said to nullify or impair the enjoyment of a right by the applicant by reason of "national origin". In doing so, his Honour followed a line of authority which included Ealing London Borough Council v Race Relations Board [1972] AC 342; Australian Medical Council v Wilson (1996) 68 FCR 46 and De Silva v Ruddock (Merkel J, 19 February 1998 unreported) in which a distinction was drawn between the expressions "national origin" and "nationality". His Honour also relied upon the text of the Convention itself (and in particular par 3 of Article 1) when he concluded that there was a distinction between the words "national origin" as denoting place or nation of "origin" and "nationality". His Honour drew in his conclusions in the following terms: "Over a lifetime, a person may acquire a number of different "nationalities" which, depending on the legal regimes in force in any particular country, may be held successively from time to time or even simultaneously where States recognise dual nationality. In these circumstances it may often be a matter of substantial difficulty to determine the relevant nationality of a person for the purpose of a particular regulatory regime. On the other hand, the expression "national origin" is a narrower concept and more readily determined because it is limited to "origin", which is fixed at birth and incapable of change. In framing an International Convention and legislation to implement its provisions against the background of many different legal systems, there is much to be said for preferring a more specific criterion which can be more readily determined with greater certainty. In the present case the criterion adopted is whether the person, at the time of entry into Australia, held a valid passport of a specified country. This is not a reference to the national origin of the person." Was there a Relevant "Right"? The primary judge then considered whether the appellant enjoyed a "right", or enjoyed a "right" to a lesser extent in comparison with persons of another race or colour or national or ethnic origin. It seems clear that his Honour considered this issue in case he was found to be wrong in his first conclusion, which we have summarised above. His Honour held that there was no relevant "right" which attracted the protection of the RDA. His Honour held that the provision of an opportunity to become a permanent resident did not deprive nationals of other countries, who did not have a similar history and who were non-citizens, of the opportunity to enjoy a "right" to reside in Australia. The provision of such an opportunity therefore did not enliven s 10 of the RDA. Furthermore, his Honour held that the criteria for selection of the listed countries could not be said to be arbitrary, having regard to the circumstances in which the selection of those countries and the cut-off dates was made. For those reasons, his Honour said that he was not persuaded that the appellant was "… unequally affected in the enjoyment of any "right" as a result of the visa conditions." Indirect Discrimination The primary judge rejected the appellant's argument that there was indirect discrimination by reason of the fact that in the majority of cases the criteria of "nationality" and "national origin" would coincide. In those circumstances, so it had been submitted, the Statutory Rule conferred a comparative advantage by reference to nationality whereby a substantial number of persons of the corresponding national origin would enjoy the right to a greater extent than persons not of that origin. His Honour rejected this argument, saying that there was no reason to introduce into s 10 concepts of indirect discrimination. Section 10, so his Honour reasoned, was concerned with the effect of a law and not with the concept of discrimination upon the individual. His Honour's conclusions were expressed in these terms: "The real question for the Court is the proper construction of the language used in the section. If it can be said that by reason of a provision of a law, there is an effect of the type set out in the section, then the equalising adjustment provided for in the section is enlivened. It is not to the point to speak in terms of direct or indirect discrimination. The section operates by reference to the nationality of a person at a particular point of time when that person entered Australia as the holder of a valid passport of a listed country. For the reasons given earlier, on a proper interpretation of the section, the language does not warrant the conclusion that national origin and nationality are the same."