Sahak v Minister for Immigration & Multicultural Affairs

Federal Court of Australia (Full Court)|2002-07-18|Before: Hely JJ

north J: 1 I agree with Goldberg and Hely JJ that the appeals should be dismissed, but I do so for different reasons. 2 The relevant right for the purpose of s 10 of the Racial Discrimination Act 1975 (Cth) (RDA) is the right to judicial review of the decision of the Tribunal. That right is given by s 75(v) of the Australian Constitution (Constitution). The appellants are entitled to seek constitutional writs against the Tribunal. The grounds available under s 75(v) of the Constitution are more ample than the grounds available under the Migration Act 1958 (Cth) (Migration Act). 3 In what ways, then, is the right to seek judicial review not enjoyed or, enjoyed to a more limited extent, by the appellants than persons who are able to understand the procedure, the decision of the Tribunal and who have a command of English such that they are able to institute an application for judicial review within the time limited by s 478 of the Migration Act. The only limitation is that the appellants may be confined to instituting proceedings in the High Court rather than having available the opportunity to commence proceedings in both the High Court and the Federal Court. The same restriction has the consequence that the appellants would be denied the chance to challenge the decision of the primary judge in the Federal Court through the appeal process. 4 But once the relevant right is seen as the right to judicial review of the Tribunal's decision, and it is appreciated that the High Court exercises a wider jurisdiction under s 75(v) of the Constitution than the Federal Court exercises under s 476 of the Migration Act, and that the right which remains available is exercisable in the highest court in Australia, it cannot be said that the right is not enjoyed, or enjoyed to a lesser extent, by the appellants than by persons who are able to understand the procedure and the decision of the Tribunal and by reason of their command of English are able to institute an application for judicial review within the relevant time limit. 5 On this view, it is not necessary to determine whether, in the absence of a right to take judicial review proceedings in the High Court, s 478 falls within s 10 of the RDA. 6 However, it is appropriate that I indicate a strong inclination to the view that s 478 would in those circumstances, as a practical matter, restrict the right of persons such as the appellants to access the right to challenge decisions of the Tribunal to an extent that persons of other national origins do not experience. In particular, to say that any differential impact is suffered not because of national origin, but rather as a result of individual personal circumstances, appears to me to adopt a verbal formula which avoids the real and practical discrimination which flows as a result of the operation of s 478. 7 Although arising in a different statutory context, the point may be illustrated by reference to the landmark decision of the Supreme Court of the United States of America in Griggs v Duke Power Co 401 US 424 (1971). 8 The question in that case was whether an employer's requirement that applicants for employment pass an intelligence test or hold a school diploma was an unlawful employment practice. Such a practice was a practice which deprived the applicant of an employment opportunity or adversely affected their status because of, inter alia, their race or colour. The requirement was shown to operate to disqualify Negroes at a substantially higher rate than white applicants. The reason was that Negroes had historically enjoyed much lower educational opportunities than whites. 9 It was not said that Negroes suffered discrimination by reason of their personal educational standards but rather by reason of race or colour. To approach anti-discrimination provisions in the former way would rob them of much of their intended force. Such a construction runs counter to the aims of such legislation. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

VICTORIA DISTRICT REGISTRY No S 148 of 2001

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Introduction 10 This appeal and the related appeal by Hasan Khalil Isa in proceeding number S 143 of 2001 raise for consideration the consequences of a failure by an applicant to lodge an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") within the time period prescribed by s 478(1)(b) of the Migration Act 1958(Cth) ("the Act"). In each case the application to the Court for review of the Tribunal's decision was made outside the twenty‑eight day period prescribed by s 478(1)(b) of the Act. The legislation under consideration in the appeals is in the form which applied prior to the amendments to the Act which came into operation on 2 October 2001. 11 The circumstances giving rise to the appeals are most unfortunate and have been brought about by circumstances beyond the control of the appellants.

Mr Sahak's circumstances 12 Mr Sahak, a citizen of Afghanistan, arrived in Australia by boat on 18 December 1999. He does not speak or read English. On arrival he was detained in immigration detention at the Woomera Immigration Reception and Processing Centre ("the Woomera Centre ") as an unlawful non‑citizen. On 14 May 2000 he lodged an application under the Act for a Protection (Class XA) Visa with the Department of Immigration and Multicultural Affairs. On 8 August 2000 a delegate of the respondent ("the Minister") refused to grant the appellant a visa and on 11 August 2000 he applied for a review of that decision to the Tribunal. On 26 October 2000 the Tribunal affirmed the decision of the delegate not to grant the appellant a protection visa. The decision was sent on 26 October 2000 by facsimile transmission to the appellant at the Woomera Centre pursuant to s 430D(2) of the Act, and was received by the appellant no later than 30 October 2000. Accordingly, the twenty-eight day period in which the appellant was required under s 478(1)(b) of the Act to lodge an application for judicial review of the Tribunal's decision expired on 27 November 2000. As a result of circumstances to which we shall refer the appellant lodged his application for an Order of Review of the Tribunal's decision by the Court on 28 December 2000, outside the twenty-eight day period allowed by s 478(1)(b) of the Act. 13 On 1 August 2001, a judge of the Court dismissed the application on the ground that it had been lodged with the Court out of time and that the Court had no power or jurisdiction to extend the time period prescribed by s 478(1)(b) of the Act. The appellant's application and that of Mr Isa were one of seventeen applications before the primary judge made to the Court under s 476 of the Act which were lodged by the various applicants on 28 and 29 December 2001. The primary judge's reasons for dismissing the various applications are recorded in Salehi v Minister for Immigration & Multicultural Affairs [2001] FCA 995 ("Salehi"). In the present matter the primary judge adopted his reasoning in Salehi and held that the Court had no jurisdiction to entertain the application. 14 The circumstances culminating in Mr Sahak lodging his application with the Court out of time are as follows. Mr Sahak was notified of the Tribunal's decision around 30 October 2000. At about the same time he received a letter from his lawyer informing him of the decision and indicating that she could no longer act for him. 15 Mr Sahak completed the pro forma document provided at the notification interview requesting his lawyer to contact him. The lawyer did so promptly and confirmed that she could no longer act for him. On 1 November 2000, Mr Sahak applied for legal assistance to the Legal Services Commission of South Australia. On 14 November 2000, he received a letter from the Commission asking for further information. The evidence did not disclose how he responded to that request. 16 The principal officer at the Woomera Centre responsible for dealing with Mr Sahak and the other applicants at relevant times was Ms Sandra Triplett, the Acting Deputy Business Manager of the Woomera Centre. There were limited interpreting services available at the Woomera Centre. In early November 2000 Mr Sahak wrote a letter in his native language to the Minister's officers requesting the forms required to apply to the Federal Court to review the Tribunal's decision. That letter was sent in response to Ms Triplett indicating, at the notification interview, that the forms were available on request. The normal process would have been that the request was translated and the forms provided. That did not occur. The request in the letter did not come to Ms Triplett's attention. The primary judge found that Ms Triplett did not deliberately ignore or misplace the letter but the primary judge was satisfied that, whatever the reason, the normal process for dealing with such a request did not occur. The primary judge also found that during November Mr Sahak focussed his efforts on securing legal assistance up to the time the twenty‑eight day period expired. The primary judge found that from early December 2000 Mr Sahak commenced to enquire of the interpreter about the availability of the necessary forms but did not get access to them until 14 December 2000 when they were completed with the assistance of an interpreter. The interpreter promptly gave the documents to Ms Triplett or her officers but they were not lodged with the Court until 28 December 2000.

Mr Isa's circumstances 17 Mr Isa arrived in Australia on 1 February 2000. He is a stateless Palestinian who was born in Syria and lived also in Lebanon. He does not speak or read English. On arrival he was detained in immigration detention at the Woomera Centre as an unlawful non‑citizen. On 9 July 2000 he lodged an application under the Act for a protection visa and on 28 July 2000 a delegate of the Minister refused to grant the visa. On 8 August 2000 Mr Isa applied to the Tribunal to review the decision and on 23 November 2000 the Tribunal affirmed the decision of the delegate of the Minister not to grant Mr Isa a protection visa. Mr Isa was notified of the Tribunal's decision on 30 November 2000, in accordance with s 430D(2) of the Act. Consequently, the period of twenty‑eight days thereafter by which he was required, under s 478(1)(b) of the Act, to lodge his application for review of the Tribunal's decision concluded on 28 December 2000. His application was in fact lodged with the Court on 29 December 2000. The primary judge found that the reason why his application was lodged with the Court one day late was not clear, that it was not Mr Isa's fault and that Mr Isa had done all that he could have been expected to do to file his application in time. 18 Mr Isa received a letter dated 29 November 2000 from the lawyer who had assisted him in his review before the Tribunal, informing him that the lawyer would not be able to assist him if he wished to seek review of the Tribunal's decision before the Federal Court. In about mid‑December 2000 Mr Isa approached an Arabic interpreter employed at the Woomera Centre, told him he wished to apply to the Federal Court to review the Tribunal's decision and sought the forms necessary to do so. The appellant and other detainees had been asking officials at the Woomera Centre for those forms for some days. The interpreter asked another interpreter employed at the Woomera Centre to attend to the appellant's request. On 16 December 2000 the appellant asked this interpreter for the necessary forms and she told him that she had the forms and would hold on to them and help him fill them out. The interpreter obtained the necessary information from the appellant in Arabic before Christmas and gave him the completed form after Christmas. On 28 December 2000, the last day of the twenty‑eight day period, the appellant endeavoured to contact the interpreter to ensure his application was lodged within time. The interpreter did not complete the forms for the appellant on time because, as the primary judge found, "she was so busy and because she believed that an extension of time was possible". The interpreter acknowledged that the steps she took for the appellant in relation to completing and arranging for the execution and lodgement of the application for review and the affidavit were done as part of her duties with the Department of Immigration and Multicultural Affairs. 19 On 1 August 2001, the primary judge dismissed the application on the ground that it had been lodged with the Court out of time and that the Court had no power or jurisdiction to extend the time period prescribed for by s 478(1)(b) of the Act. In Mr Isa's application the primary judge adopted his reasoning in Salehi and held that the Court had no jurisdiction to entertain the application which he dismissed. 20 This brief recitation of the relevant facts in relation to both appeals demonstrates that the failure of the appellants to lodge their applications for judicial review with the Court within the prescribed period of twenty-eight days was not due to any personal default on their part.

Reasoning of primary judge 21 The primary judge considered a number of authorities in which single judges of the Court had concluded that the language in s 478(1)(b) of the Act was such that there was no power in the Court to grant an extension of time for the filing of an application for judicial review outside the twenty-eight day period, notwithstanding the injustice that might arise. See, for example, Kucuk v Minister for Immigration & Multicultural Affairs [2001] FCA 535; Nirmalan v Minister for Immigration & Multicultural Affairs [1998] FCA 672 (Full Court). 22 These two applications were part of a group of seventeen applications by detainees at the Woomera Centre which were lodged out of time in similar circumstances, and which were heard together. The primary judge made the following observations in relation to the applications generally at [51]: "As the evidence shows, such persons are frequently unable to read or speak English, and sometimes are illiterate in their own language. At least with the seventeen persons to whom I have referred, they were dependent upon those maintaining the particular detention centre for the provision of forms to enable them to seek review to the Federal Court, as their requests for legal assistance were not met. They did not all receive those forms when requested, or experienced delays in being able to convey their requests for the necessary forms or then in receiving the forms. None of those delays were their fault. They could have done no more to get the forms. As I have found, some residents of Woomera Detention Centre went on a hunger strike to draw attention to their requests for the forms. They were then, in all instances, physically unable by themselves to complete those forms in English, and in some instances in their own language. They sought help from the interpreters available, on a very limited basis, at the Woomera Detention Centre. They did not receive that help in a timely manner, through no fault of their own but due to the limited time the interpreters had available." 23 The primary judge dismissed the applications on the ground that s 478(1)(b) is a statutory imperative, and s 478(2) makes it clear that the Court may not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in s 478(1)(b), irrespective of the merits of the case for an extension of time.

The nature of the appeal 24 The notices of appeal filed by the appellants, without the benefit of legal assistance, did not disclose any proper grounds of appeal or errors of law upon which reliance was placed. However, subsequently, counsel agreed to act pro bono for the appellants and an amended notice of appeal was filed by leave. The amended grounds of appeal accepted that the time limit required by s 478(1)(b) cannot be extended even in circumstances where the time limit was exceeded through no fault of the appellants. The amended notices of appeal raised the following grounds: (a) the primary judge erred in finding he had no jurisdiction under s 478 of the Act to consider the applications for review;

(b) the Court had jurisdiction to consider the applications for review by reason of the operation of s 10(1) of the Racial Discrimination Act 1975 (Cth) ("RDA") because: (i) the appellants, Mr Sahak and Mr Isa, are respectively of Afghani and Syrian national origin, and an attribute or characteristic of persons of those national origins is that English is not spoken or written by them, or is a secondary language, and the appellants were in fact illiterate in English when they attempted to apply to the Court for review of the Tribunal decision;

(ii) the reason, or a substantial reason, that the appellants' applications for review fell outside the time limit prescribed by s 478 was because they did not have access to an interpreter who could fill in and complete the application forms for them before the expiration of the time limit prescribed in s 478; (iii) the effect of s 478 is that persons of Syrian and Afghani national origin enjoy the right of equality before the law, including access to the Court and its judicial review procedures, to a more limited extent than persons of a national origin which has an attribute or characteristic of English as a first language, or do not enjoy that right at all; and (iv) by force of s 10(1) of the RDA, the twenty‑eight day time limit did not operate as against the appellants. The operation of s 10 of the RDA on s 478 of the Act had not been raised at first instance but the application for leave to file Amended Notices of Appeal raising these grounds was not opposed. 25 Section 10 of the RDA provides: "(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." 26 Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (1975) ("the Convention") relevantly provides: "In 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, notably in the enjoyment of the following rights: (a) The right to equal treatment before the tribunals and all other organs administering justice;" "Racial discrimination" is defined in Article 1 of the Convention as meaning: "any 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 human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life." 27 The appellants submitted that they had a right enshrined in Article 5(a) of the Convention to equality before the law and the courts and a right to access to the courts. Their inability to read and write English and their need to use an interpreter to complete the applications to be filed in the Court formed a substantial part of the reasons for not filing the applications within the required period of twenty‑eight days. It was said that the effect of s 478(1) meant that the appellants enjoyed the rights of equality before the law and access to the courts "to a more limited extent" than persons whose race or national origin was English‑speaking because it prohibited the Court from remedying the disadvantage suffered by the appellants by granting an extension of time. 28 The appellants submitted that the "more limited extent" required for the operation of s 10(1) of the RDA was established by s 478 precluding an accommodation or allowance being made for non‑English speaking persons who need to obtain access to interpreters before they can complete the forms applying to review a decision of the Tribunal. It was said that the discrimination was indirect in its effect because s 478(1), although neutral on its face, had a discriminatory effect on non‑English speaking persons. 29 The appellants recognised that their right to access to the High Court was not limited by s 478 but still maintained that their right to access to the courts was impaired by s 478, albeit not obliterated. 30 The Minister submitted that the appellants did not have a "right" within the meaning of s 10 of the RDA in the terms for which the appellants contended, that s 478 did not operate in a discriminatory manner, and that any disadvantage to the appellants arose from a lack of an English education and not as a result of the operation or effect of the Act.

Reasoning on appeal 31 The impugned law is s 478 of the Act which provides: "(1) An application under section 476 or 477 must: (a) be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act 1976; and (b) be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision. (2) The Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph (1)(b)." 32 The appellants initially focused their submissions on the effect of s 478(2) but ultimately accepted that the weight of authority is that s 478(1) of the Act is a provision which defines the jurisdiction of the Federal Court and the right to apply to the Court to review a judicially‑reviewable decision: Wang v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 386; Oguzhan v Minister for Immigration & Multicultural Affairs (2000) 99 FCR 285; Kucuk v Minister for Immigration & Multicultural Affairs (supra); Jaffari v Minister for Immigration & Multicultural Affairs [2001] FCA 1516; Mayne Nickless Limited v Multigroup Distribution Services Pty Ltd [2001] FCA 1620. But compare Ayub v Minister for Immigration & Multicultural Affairs (2001) 181 ALR 522. 33 That view was recently endorsed by a Full Court in Rahman v Minister for Immigration & Multicultural Affairs [2002] FCAFC 5 (Hill, Tamberlin and Emmett JJ). The Full Court said at [16]‑[17]: "Section 478 must be construed as a whole. It is not permissible to construe each subsection independently of the other. It may be that, upon a detailed analysis of the provisions of s 478, s 478(2) does no more than state, in express terms, the consequences of s 478(1). Even if that be so, s 478(2) is not otiose. It is designed to make absolutely clear the intention of Parliament that there is to be no review by the Federal Court of a judicially reviewable decision unless an application for such a review was lodged within twenty-eight days of the applicant's being notified of the decision. It is well recognised that a subject's right of recourse to the courts is not to be taken away except by clear words - see Hockey v Yelland (1984) 157 CLR 124 at 130. Nevertheless, it is patently clear that the Parliament intended that the Federal Court would not have any jurisdiction to entertain an application for an order of review if the application was lodged more than twenty-eight days after the applicant was notified of the decision sought to be reviewed. The distinction drawn in Chu's Case [between laws that, within the limits of Commonwealth legislative power, grant or withhold jurisdiction, and laws that purport to direct a court as to the manner and outcome of the exercise of its jurisdiction] does not assist the appellant in the present case. Section 478(2) is not concerned with the manner or outcome of the exercise of judicial power. An element of the right created by s 476(1) to apply to the Court for review of a judicially reviewable decision is that the right be exercised by application made within the time specified in s 478(1)(b). That provision imposes a condition that is of the essence of the new right created by s 476, being the new right to seek review by the Federal Court of a judicially reviewable decision. It is a valid exercise of the legislative power to limit the jurisdiction of the Court to entertain only those applications filed within twenty-eight days of notification of a judicially reviewable decision. Section 478(2) does no more than direct the Court to give effect to that limitation." 34 Section 10 of the RDA is concerned with the operation and effect of laws, rather than with the activities or conduct of individuals. It is the practical operation and effect of the impugned law which is relevant. In Mabo v State of Queensland (1998) 166 CLR 186 Deane J said at 230: "As its opening words ('If, by reason of …') make clear, it is concerned with the operation and effect of laws. In the context of the nature of the rights which it protects and of the provisions of the International Convention which it exists to implement, the section is to be construed as concerned not merely with matters of form but with matters of substance, that is to say, with the practical operation and effect of an impugned law." 35 In order to enliven the operation of s 10 of the RDA, the appellants must establish both that the prejudice of which complaint is made arises by reason of a statutory provision whose purpose or effect is to create racial discrimination, and also that the prejudice amounts to an exclusion from, or impairment of, a human right or fundamental freedom, or a right of a kind referred to in Article 5 of the Convention: Melkman v Federal Commissioner of Taxation (1988) 20 FCR 331 at 336. 36 Section 10 of the RDA does not invalidate or strike down a law which has the purpose or effect of being discriminatory, or being inconsistent with the Convention. Rather, s 10 seeks to ensure and preserve a right to equality before the law in the enjoyment of a relevant right by providing that persons of the race, colour, national or ethnic origin discriminated against by a discriminatory law shall enjoy the same right under that law as other persons enjoy it: Gerhardy v Brown (1984‑85) 159 CLR 70, 94; Mabo v State of Queensland (supra) at 198 per Mason CJ, 217 per Brennan, Toohey and Gaudron JJ, and 232 per Deane J. 37 In its terms, s 478 applies uniformly to all persons who wish to make an application to the Court for review of a judicially‑reviewable decision, or for an order of review in respect of a failure to make a judicially‑reviewable decision, regardless of race, colour, national or ethnic origin. However, s 10 of the RDA may be enlivened if in fact there is discrimination by reason of the operation of a particular law even though that law, on its face, applies equally to all individuals: Nguyen v Refugee Review Tribunal (1997) 74 FCR 311 at 319. Whilst it is not the purpose of s 478 to create racial discrimination, it is necessary to consider whether that is the effect of the section. Put another way, s 10 of the RDA covers discrimination which occurs indirectly as the result of the operation of a law on a right of a person of a particular race, colour or national or ethnic origin. 38 It is clear that the rights to which s 10(1) refers are not restricted to enforceable rights under local law but encompass broader human rights. In Mabo v State of Queensland (supra), Deane J said at 229: "… in the context of the specific statement in s.10(2) that a reference in s.10(1) 'to a right includes a reference to a right of a kind referred to in Article 5' of the International Convention, it is clear that the 'rights' to which s.10(1) refers are not restricted to enforceable legal rights under local law. The word 'right' is used in s.10(1) in the same broad sense in which it is used in the International Convention, that is to say, as a moral entitlement to be treated in accordance with standards dictated by the fundamental notions of human dignity and essential equality which underlie the international recognition of human rights: cf., the preamble to the International Convention." (see also per Brennan, Toohey, Gaudron JJ at 217). 39 But the right of every person, without distinction as to race, colour or national or ethnic origin, to equality before the law and to equal treatment before tribunals and other organs administering justice, found in Article 5(a) of the Convention, is a human right the enjoyment of which is peculiarly dependent on the provisions of the municipal law. It is therefore necessary to identify the particular right which is said to be the subject of diminished enjoyment. 40 The appellants put their case as to the right which they said was the subject of diminished enjoyment in two ways. First, they submitted that it was the right of access to courts to review the decision of the Tribunal in relation to each appellant. The difficulty facing the appellants with that submission was, as the Minister submitted, that their right of access to the High Court under s 75(v) of the Commonwealth Constitution was not diminished or lessened in any way by the operation of s 478 of the Act. The appellants' response was that the presence of another available jurisdiction, the High Court, meant only that their right of access to the courts was not obliterated but merely impaired. 41 Secondly, the appellants submitted, in the alternative, that the relevant right was a right to apply to the Court pursuant to s 476 of the Act for judicial review. That right may be a statutory right, as the Minister submitted. However, the provisions regulating its application, such as s 478, can still have an impact on the right of an applicant to seek review of a Tribunal decision, notwithstanding that other avenues of redress may be open to an applicant to challenge a Tribunal's decision. We are prepared to accept, for present purposes, that s 10 of the RDA encompasses a right to equal treatment before the courts and that such right includes equal treatment under s 478 of the Act. The fact that a right arises under a statute does not deny it the characterisation of a human right, in particular for the purposes of Article 5(a) of the Convention, if that statutory right is a particular manifestation, or sub‑set, of a broader human right which may be expressed in more general terms. 42 Whichever formulation of the right is adopted, it is still necessary to consider whether that right is impacted upon by s 478 of the Act thereby enlivening s 10 of the RDA. This requires a consideration of whether that right is impaired or diminished by the terms or operation of s 478 in relation to the appellants in a manner which does not occur in relation to persons of another race, colour or national or ethnic origin. It is relevant in considering that question to consider how it might be said, if that impairment or diminution is found, that the right may be enjoyed to the same extent as persons of the other race, colour or national or ethnic origin whose right to seek review of a Tribunal decision under s 476 is not impaired by the terms or operation of s 478. 43 It is an element of that right that it be exercised by application made within the time specified in s 478(1)(b): Rahman v Minister for Immigration & Multicultural Affairs (supra). If racial inequality under the law in the enjoyment of a relevant "right" is shown to exist, s 10 of the RDA remedies that wrong by conferring the relevant right on those who do not enjoy it: Mabo v State of Queensland (supra) at 198. 44 The appellants' case was that they were inhibited and disadvantaged in the exercise of the relevant right by their circumstances. Those circumstances included their detention, having a language other than English as their native language, their inability to understand or to communicate in the English language, the limited availability of interpreters at the Woomera Centre, and a lack of understanding of what was required of them in order to exercise the relevant right. It was said that persons who were not suffering under those circumstances may have been better able to take advantage of the relevant right than were the appellants. 45 But such discrimination or disadvantage as arose from the practical operation of s 478 of the Act was not racial discrimination in terms of the Convention or s 10 of the RDA. Section 478 of the Act does not deprive persons of one race of a right that is enjoyed by another race, nor does it provide for differential operation, depending upon the race, colour or national or ethnic original of the relevant applicant. For example, persons whose national origin is Afghani or Syrian are able to take advantage of the relevant right if their comprehension of the English language is sufficient, or if they have access to friends or professional interpreters so as to overcome the language barrier. There may be persons of another race whose first language is English, but who are inhibited in their enjoyment of the relevant right by reason of illiteracy or some physical infirmity or other impediment. Any differential effect which the application of s 478 of the Act produces is not based on race, colour, descent or national or ethnic origin, but rather on the individual personal circumstances of each applicant. 46 The appellants submitted that the expression "race, colour or national or ethnic origin" in s 10 of the RDA should be construed as including characteristics that appertain to persons of that particular description and that the relevant comparison for the purposes of s 10 was with persons of a race, colour or national or ethnic origin for whom English was a first or a literate language and who were held in immigration detention. 47 We doubt whether s 10 should be so construed, but even if it be accepted that it is a characteristic of persons of Afghani or Syrian national or ethnic origin that English is not their first language and they are not literate in English, it does not follow that, as a consequence, s 478 operates to diminish their right of access to the Federal Court in a way in which an English‑speaking applicant's right of access to the Federal Court is not diminished. 48 The fact that an applicant who wishes to review the decision of a Tribunal requires the services of an interpreter in order to prepare and file an application for review does not mean that the right to apply for the review is lessened. Similarly, a person who speaks English but who does not understand how to complete the application due to circumstances, such as physical infirmity, a lack of literacy or a lack of education, does not have his or her right to apply for review lessened by the time limit in s 478 compared to the right of a literate, educated, healthy, English‑speaking applicant. Any difficulty such persons confront in completing and filing applications for review within the time limit prescribed by s 478 is due to personal characteristics and not due to a circumstance which is dictated by their race, colour, or national or ethnic origin. 49 Put shortly, there is no nexus or causal connection between the provisions of s 478 and the manner in which the applicants enjoy their right of access to the Court pursuant to s 476 as compared with the manner in which English speaking applicants enjoy their right of access to the Court. Section 478 in its terms and operation does not have a differential or discriminatory impact on English and non‑English speaking applicants for review of a Tribunal decision under s 476. It operates uniformly. 50 This conclusion is reinforced by a consideration of the declaratory relief sought by the appellants which was in the following terms: "By force of s 10(1) of the Racial Discrimination Act 1975 (Cth): (a) the Appellants are entitled to make application to the Federal Court pursuant to s 476(1) of the Migration Act 1958 (Cth) notwithstanding that their applications are made outside the 28 day time limit prescribed by s 478(1) of the Act; and (b) this Court has jurisdiction to hear and determine those applications." The appellants submitted that such a declaration would, in the language used in Macabenta v Minister for Immigration & Multicultural Affairs (1998) 154 ALR 591 at 601, constitute an "equalising adjustment" and confer the entitlement necessary to remedy the disadvantage experienced by persons of the appellants' racial and national origins. The alleged disadvantage being that imposed by an unextendable time limit that did not afford them sufficient opportunity to secure access to translations, interpreters and assistance in the English language to complete the necessary forms, and engage in the necessary procedures. 51 The way in which s 10 operates was described by Wilson J in Mabo v State of Queensland (supra) at 207: "Its operation is only to destroy the effect of a law that deprives persons of one race of a right that is enjoyed by persons of another race. It destroys that effect by providing that the first-mentioned group will enjoy the right of which they have been deprived to the same extent as that same right is enjoyed by the last-mentioned group." 52 However, the declaration sought provides the appellants with more than an "equalising adjustment". If a declaration was made in the terms sought, the appellants would be placed in a superior position to that of all other putative applicants for review, whose entitlement to review is constrained by the twenty‑eight day time limit. The appellants would be entitled, in the light of such a declaration, to file an application for review under s 476 of the Act at any time, an entitlement not enjoyed by other applicants. 53 The difficulty encountered by the appellants in formulating their claim for relief exposed the flaw in their submission that their right to access to the courts, and in particular to the Federal Court, is enjoyed to a more limited extent than persons of another race, colour, national or ethnic origin by reason of s 478 of the Act. As that section does not discriminate between, or have differential operation, in respect of persons of different races, colours, national or ethnic origins, there is no room for the declaratory relief sought in relation to the enjoyment of a right. 54 The appeals should be dismissed with costs. 55 The Court wishes to record its appreciation for the role played by counsel for the appellants who appeared pro bono. Her written submissions and oral argument were of great assistance to the court in defining and exposing the issues for determination. The community is well served by counsel who are prepared to appear pro bono in proceedings such as these.

I certify that the preceding forty‑six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Goldberg and Hely.

Associate: Dated: 16 July 2002 Counsel for the Appellant: Ms D S Mortimer - appeared pro bono

Solicitor for the Respondent: Sparke Helmore

Date of Hearing: 25 February 2002

Date of filing written submissions: 4, 11 and 12 March 2002

At a glance

Court

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Judgment (16 paragraphs)

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Legislation Cited (2)

Cases Cited (14)

Cited By (6)