ZHANG FU QIU v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

ZHANG FU QIU v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

ZHEN HUI LIU v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent

COURT: LOCKHART J. DATE: 22 DECEMBER 1994 PLACE: SYDNEY

1. The applications in NG 739/94 and NG 748/94 be dismissed;
2. The applicants pay the respondent's costs of the

NOTE: Settlement and entry of orders is dealt with in

BETWEEN: ZHANG FU OTU Applicant AND: MINISTER FOR IMMIGRATION

NEW SOUTH WALES DISTRICT REGISTRY No. NG 748 of 1994

BETWEEN: ZHEN HUI LIU Applicant AND: MINISTER FOR IMMIGRATION

LOCKHART J. These two proceedings, heard together by consent, are brought pursuant to s. 39B of the Judiciary Act 1903 and s. 21

Many citizens of the Peoples Republic of China (the PRC)

arrived in Australia after the Tiananmen Square massacres,

many of whom have sought refugee status. The applicants are two such persons. Their applications for refugee status are

On 1 November 1993 the Minister for Immigration and Ethnic Affairs announced that the Federal Government had decided to provide a special "one-off" opportunity to certain persons, including nationals of the PRC, to obtain permanent residence in Australia. The Government's decision was implemented by establishing in the Migration Regulations four classes of entry permits, namely, class 815 (PRC (Permanent) ) Entry Permit, class 816 (Special (Permanent)) Entry Permit, class 817 (Protection (Permanent) Entry Permit and class 818

(Highly Qualified On-shore (Permanent)) Entry Permit.

Class 815 Entry Permits provide permanent residence in Australia for certain PRC nationals who entered Australia on

Class 817 Entry Permits provide permanent residence for persons in Australia who have been granted refugee status under the United Nations Convention and Protocol relating to

Class 818 Entry Permits provide permanent residence to

highly qualified post-graduate students in Australia.

Class 816 Entry Permits is the class with which these proceedings are concerned. A class 816 Entry Permit provides permanent residence for persons who have entered Australia and who have certain prescribed qualifications, in particular with respect to age, skills and proficiency in the English

By providing the opportunity for better qualified persons who seek asylum in Australia to obtain permanent residence here under the "Skills Category" of the Migration Program, the Federal Government intended to reduce the backlog and time taken to consider their applications for refugee status. Successful applicants for a class 816 Entry Permit are therefore invited to withdraw their applications for refugee status. Unsuccessful applicants are able to proceed with

These four classes of Entry Permits were introduced into the Migration Regulations by the Migration (1993) Regulations (Amendment), Statutory Rule No 11 of 1994, which commenced on 1 March 1994 (regulations 1.1 and 16.3). The regulations were made pursuant to the powers then conferred upon the Governor- General, acting with the advice of the Federal Executive Council, by s. 181 and in particular s. 33 of the Migration Act 1958 (the Migration Act). Section 33 empowered the making of regulations, without limiting the generality of s. 181, to

make provision for entry permits, including different classes

On 1 September 1994 entry permits in these four classes became transitional permanent visas, retaining the same class numbers as they bore when entry permits. The legislative mechanism adopted to achieve this transmutation is rather complex. It commenced with the Migration Reform Act 1992 (Act No. 184 of 1992) (the Migration Reform Act) which had the object of regulating, in the national interest, the coming into and presence. in, Australia of non-citizens (s. 3A(1)). Section 3A(2) states that, to advance its object, the Act "provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that that Act be the only source of the right of non-citizens to so enter or remain". The Migration Reform Act provided for different commencement days for different sections. The relevant sections with which this case is concerned (in effect converting entry permits into permanent visas) were to commence on 1 November 1993 (s. 2(3)). This did not occur, because the Migration Laws Amendment Act 1993 (Act No 59 of 1993) was enacted. It deferred the commencement date of the relevant provisions of the Migration Reform Act from 1 November 1993 to 1 September 1994 (ss. 2, 4 and 5). The result is that, until 1 September 1994 the relevant provisions in the Migration Regulations were with respect to class 816 (Special (Permanent)) Entry Permits; but from 1 September 1994

such permits were converted into class 816 Transitional

Permanent Visas. An application for a class 816 Entry Permit made on or after 19 December 1989 and before 1 September 1994 became converted into an application for a fMTransitional (Permanent) Visa. This was achieved by regulation 23 of the Migration Reform (Transitional Provisions) Regulations (Statutory Rule No 261 of 1994), (in particular regulation 23(2)). Statutory Rule No 261 of 1994 repealed Statutory Rules Nos 11 and 87 of 1994. Statutory Rule 11 of 1984 had established the Migration (1993) Regulations (Amendment) which, as mentioned earlier, themselves established the four classes of entry permits including class 816. Statutory Rule 87 of 1994 established the Migration (1993) Regulations (Amendment) which made certain changes to the criteria to be Satisfied to qualify for a class 816 Entry Permit, to which

Statutory Rule No 261 of 1994 in effect converted the previous applications for class 816 Entry Permits into applications for class 816 Transitional (Permanent) Visas such that the applications are taken to be applications for Transitional Visas, to be decided according to the criteria that applied to the entry permits for which application has been made (regulation 23(3) and (4) of Statutory Rule No 261

It 1s necessary to examine in some detail certain of the

provisions of the Migration Regulations relating to class 816

Entry Permits. Broadly speaking, class 816 requires that "principal applicants" (as from 7 April 1994 redefined by Statutory Rule 87 of 1994 as "principal persons") have the ability to communicate in the English language "in a mix of social and work situations", to use the language of subclause 816.732(1). An applicant for an 816 Entry Permit must make application for it in accordance with an approved form (816.711(1)) and pay the prescribed fee (816.711(4)(a)). Clause 816.72 prescribes the criteria to be satisfied at the time of the application for the entry permit, including a criterion that the applicant has not attained 45 years of age before 1 November 1993. Various additional criteria are set out in subclause 816.721(2), (3), (4), (5) and (6) including requirements that the applicant in Australia had obtained or completed certain post-secondary educational qualifications or held certain overseas technical qualifications or general academic qualifications (816.721(2)). The provisions of

subclause 816.72(1) are complicated and need not be stated.

Clause 816.73 prescribes the criteria to be satisfied at the time the decision is made with respect to the application for the class 816 Entry Permit. Subclause 816.73(2) requires that the applicant is a principal applicant (now "principal person") who has the ability to communicate in English "in a mix of social and work situations", demonstrated by evidence of the kind set out in subclauses 816.732(2)(4)(3). In order

to demonstrate this ability, applicants for a class 816 Entry

Permit may provide evidence of various things in the alternative, namely, within two years before the date of the application successful completion of the Occupational English Test conducted by the National Languages and Literacy Institute of Australia or the Australian Assessment of Communicative English Skills Test (ACCESS) or the International English Language Testing System Test (IELTS), or evidence of holding an overseas qualification acceptable to Australian standards of Associate Diploma or higher, for which the primary language of instruction was English, or (and this is the particularly relevant matter for present purposes) at any time prior to the decision on the application for the class 816 Entry Permit, successfully completing in Australia at least one year of full-time study or equivalent part-time study towards a post secondary qualification, for which the

This lastmentioned evidentiary provision was changed by Statutory Rule 87 of 1994 by omitting it and substituting a provision that the applicant at any time prior to the decision on the application for the class 816 Entry Permit has successfully completed one year of full time study or equivalent part-time study in an accredited post secondary course in Australia, for which the primary language of instruction is English. This provision commenced on 7 April 1994 and has relevance for present purposes, to which

Alternatively, other evidence of the ability of the applicant to communicate in English in a mix of social and work situations is to successfully undertake at the first or second attempt, and at a time and place nominated by the Minister, a test of proficiency in the English language

The test of English proficiency nominated by the Minister is the Special Test of English Proficiency (the STEP test) which has been developed especially for this class of entry permit by the National Centre for English Language Teaching Research (NCELTR) at Macquarie University, Sydney. The STEP test is required to be taken by applicants who are unable to demonstrate proficiency in English by one of the other means set out in 816.732(2) mentioned above, at a time and place

The STEP tests were and are scheduled for November 1994, January, May and July 1995. The November and January tests are for those applicants attempting the test for the first time; the May and July tests are for those applicants who are unable to pass the STEP test at the first attempt, including those who are deemed to have failed the test because they did

9,019 out of 14,551 principal applicants for class 816

Entry Permits have been identified by the Department as

required to undertake the STEP test. 7,126 persons were scheduled to sit the tests in the first week of November, with the remainder scheduled to sit the test in January 1995. Of the 7,126 persons scheduled to sit the test in November, 6,629

On 1 November 1994 it was decided by the Minister that persons who did not wish to sit the test, with other candidates, for fear of revealing their identities as asylum seekers, could do so in private provided that they applied to the Test Administrator, STEP Project, before 30 November 1994 and were prepared to pay an additional fee of $95. As at 15 November 1994 five applications had been received from applicants wishing to avail themselves of the offer to sit the

The applicants in these proceedings challenge the validity of the clause 816.73 criteria, that is the criteria to be satisfied at the time of the decision with respect to

Counsel for the applicants submitted that the criteria established by clause 816.732 of Statutory Rule No 11 of 1994 are invalid as constituting an unreasonable or uncertain

It was also argued in support of Mr Qiu's application that the amendment to subclause 816.732(2)(a) effected by Statutory Rule 87 of 1994 has no retrospective operation in respect of Mr Qiu's application which was made before the

The attack on the validity of clause 816.732 was the

principal question argued before me in these proceedings and

It was argued on behalf of the applicants that clause 816.732 is ultra vires on two bases: first, that the regulation is manifestly unreasonable, and secondly, that it

It is necessary to examine the source of the relevant regulation making power. This must be the starting point for the examination of the argument. It is not an easy exercise because it involves the process of examining the labyrinthine structure of the various statutes and regulations in the migration field in force at relevant times including many

Clause 816.732 of the Migration Regulations was made pursuant to the regulation making powers conferred by s. 33 and 181 of the Migration Act which were in force, both on 1

March 1994 when the original clause 816.732 was made and on 29

March 1994 when clause 816.732(2)(a) was amended. The amendment is material on another branch of the argument

Section 40 of the Migration Reform Act 1992 commenced on 1 September 1994 (see s. 2(3) of the Migration Reform Act 1992 (Act No 184 of 1992) as amended by ss. 5 and 7 of the Migration Laws Amendment Act 1993 (Act No 59 of 1993)) and

"The regulations may provide that, from 1 September 1994, applications made after a specified date, or other specified applications, for visas or permits in a specified Principal Act class are to be taken to be applications for visas in a specified amendment Act class."

The expression "amended Act class" is defined in s. 40(1) of the Migration Reform Act 1992 to mean a class of visas that is provided for by, or by regulations under, the Migration Act 1958 as amended by the Migration Reform Act 1992. "Principal Act class" means a class of visas or permits that is provided

Regulation 23 of Statutory Rule No 261 of 1994 was made pursuant to the regulation making power conferred by s. 40(7) of the Migration Reform Act 1992. That regulation commenced on 1 September 1994: see regulation 2. Regulation 23

therefore came into force immediately after s. 40(7) itself

came into force. Regulation 23(1) provides that regulation 23 applies to an application for an entry permit that was made on or after 19 December 1989 and before 1 September 1994 (Mr Qiu's application fits within these dates having been made on 1 March 1994) and that had not been finally determined before 1 September 1994 (Mr Qiu's application has not been finally determined). Regulation 23(2) provides that an application to which regulation 23 applies is taken on 1 September 1994 to be, if it was for a permanent entry permit (which a Class 816 (Special Permit) Entry Permit is), an application for a

"An application that, under subregulation (2), is taken to be an application for a transitional visa is to be decided according to the criteria that applied to the entry permit for which application was made."

The criteria in clause 816.721 (relating to the time of the application) and in clause 816.732 (as amended on 7 April 1994 (the time of the decision)) were the criteria that applied to a class 816 Entry Permit at the time of the making

Regulation 40 of Statutory Rule No 261 of 1994 repealed Statutory Rules Nos. 11 and 87 of 1994 (see the Schedule,

Paragraph 1). As a result of that repeal Mr Qiu can no longer

seek a declaration that clause 816.732 is invalid, either in the form which it took in Statutory Rule No i1 or in the form after amendment by Statutory Rule No 87. Mr Qiu would need to seek leave to amend his application to seek a declaration that regulation 23 of Statutory Rule No 261 is invalid. Although that leave has not been sought and therefore not granted, I shall continue to deal with the matter on the footing that it has been sought and has been granted, because in the circumstances of this case such an application would be a formality. No suggestion to the contrary was made by counsel

The argument on behalf of the applicants that the exercise of the regulation making power to adopt the criteria in clause 816.732 was unreasonable and uncertain would remain, but with the vital difference that the relevant regulation making power is s. 40(7) of the Migration Reform Act 1992 as

To some extent the earlier regulation making powers under the Migration Act 1958 apply because regulation 23(6) of Statutory Rule No 261 of 1994, in defining a Transitional

(Permanent) Visa, does so by stating that it is a visa:

"(a) to travel to and enter Australia for a period of 3 years from the date of

(c) that is subject to the conditions (if any) that the Minister imposes, being conditions that the Minister could

have imposed if the application had been decided under the old Act and

The "old Act" is defined as meaning the Migration Act as in force immediately before 1 September 1994 (s. 3(1) of

The principal regulation making power conferred by the Migration Act 1958 in its earlier form was s. 181; that has now been replaced by s. 504 of the Migration Act operative from 1 September 1994. Both sections are in the usual form, namely, that regulations may be made not inconsistent with the Act "prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act ..." The specific heads of regulation making

power stated in ss. 181 and 504 are not relevant for present

It matters not, however, in this case whether the argument of counsel for the applicants is approached on the footing that the relevant source of regulation making power is s. 40(7) of the Migration Reform Act 1992 as amended or other sources of power previously mentioned. The answer would be

the same whichever source of power is considered; but the

attack on validity is at its weakest when viewed from the

position of s. 40(7), which is the true source of power.

Discussion of the validity of a regulation must commence with the determination of the "true nature and purpose of the [regulation-making] power", adopted by Dixon J. in Williams v Melbourne Corporation (1933) 49 CLR 142 at 155. The approach was approved by Wilson, Dawson, Toohey and Gaudron JJ. in a joint judgment in South Australia v Tanner (1989) 166 CLR 161

Their Honours adopted with approval the reasonable proportionality test of validity as stated by Deane J. in The Commonwealth v Tasmania [the Tasmanian Dams Case] (1983) 158 CLR 1 at 260, namely, whether the regulation is capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose. Their Honours stated that the same test in relation to a power limited to regulation (as distinct from outright prohibition) was expressed by Dixon J. in Williams at 156 as being in substance whether the regulation goes beyond any restraint which could be reasonably adopted for the prescribed purpose. See also the judgment of Brennan

When the validity of a regulation is challenged on the basis that it is "unreasonable", such that it goes beyond the

regulation making power, the word ""unreasonable" in this

context means that the regulation is so oppressive and capricious that no reasonable mind can justify it: Widgee Shire Council v Bonney (1907) 4 CLR 977 at 980-3, 986-9; Brunswick Corporation v Stewart (1941) 65 CLR 88 at 97 and Carter v Egg and Egg Pulp Marketing Board for the State of Victoria (1942) 66 CLR 557 at 584-5 per Stark J., per McTiernan J. at 591 and Williams J. at 599. The meaning of "unreasonable" in this context is explained in the cases

The Migration Act in the form which it has taken since 1 September 1994 specifically provides that there are to be prescribed classes of visas, and that the regulations may prescribe criteria for visas of a specified class and whether they are visas to travel to and enter Australia or to remain in Australia or both. Also, a visa is of a particular class if the Migration Act or the regulations specify that it is a visa of that class (s. 31). Transitional (Permanent) Visas represent one particular class of visa that has been prescribed by the regulations, namely, regulation 23 of Statutory Rule No 261 of 1994. As mentioned earlier, they are visas to travel and enter Australia for a period of three years from the date of grant and to remain in Australia permanently, but subject to the conditions, if any, that the Minister imposes, being conditions that the Minister could have imposed 1f the application had been decided under the

"old Act" and regulations as in force at the date of the

application. The relevant criteria to apply to an application for such a visa is a question taken to be decided according to the criteria that applied to the entry permit, for which application was previously made, Those criteria are to be found in Statutory Rule No 11 of 1994, in particular with

respect to class 816 to which reference has already been made.

The criteria are to be satisfied at the time of the application for the relevant entry permit and at the time of the decision. They are criteria which concern, in the case of the former time, certain basic qualifications of the applicant, in particular post-secondary educational qualifications; and, at the later time of decision, whether the applicant has the ability to communicate in English in a mix of social and work situations demonstrated by evidence of the kind referred to in sub-clause (2) or (3) of clause 816.732. All matters referred to in those two sub-clauses relate directly to the determination of the question of the ability of the applicant to communicate in English "in a mix of social and work situations", an expression which no doubt is designed to ensure that the applicant can communicate with other persons in Australia in the English language at both

In my opinion the relevant regulations are reasonably proportionate in the pursuit of their enabling purpose; also,

they are not oppressive or capricious, and certainly not of

such a kind that no reasonable mind could justify them and in

that sense be unreasonable. They are far from that.

This branch of the argument of counsel for the applicants

It was argued also by counsel for the applicants that the relevant regulations are beyond power because they are too uncertain. I take it that this submission is a reference to the principle that inferior statutory legislation "ought to be expressed in such a manner as that its meaning may be unambiguous, and in such language as may be readily understood by those on whom it is to operate": Grant on Corporations at 86, adopted by Dixon J. in King Gee Clothing Co Pty Limited v The Commonwealth (1945) 71 CLR 184 at 194-5. See also Cann's Pty Limited v The Commonwealth (1946) 71 CLR 210 at 219 and 224; Television Corporation Ltd v Commonwealth (1963) 109 CLR 59 at 71 and 75; Racecourse Co-Operative Sugar Association Limited v Attorney-General of the State of Queensland (1979) 142 CLR 460 at 480; and Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 per Lockhart J. at 382, 384. If reasonableness or certainty are limitations or conditions upon the exercise by the Governor- - General in Council of regulation making power conferred by Parliament, then, in my opinion, it cannot be successfully maintained that there is an absence of certainty in any

relevant regulations under challenge. I do not discern any

ambiguity; the language may be readily understood by the

I pause, however, to echo the cautionary note sounded by Dixon J. in King Gee Clothing and affirmed by his Honour in Cann's Pty Ltd v Commonwealth (1946) 71 CLR 210 at 227-8. [In

"I am unaware of any principle of law or of interpretation which places upon a power of subordinate legislation conferred upon the Governor-General by the Parliament a limitation or condition making either reasonableness or certainty indispensable to its valid exercise."

It is not yet settled in Australia that uncertainty is a separate or independent ground of invalidity: see Austral

It follows that these attacks on the regulations based on

A further argument was put in relation to Mr Qiu. It was argued that, at the time he lodged his application for a class 816 Entry Permit and paid the requisite fee pursuant to clause 816.71 (his application having been made on 1 March 1994), he was entitled to assume that he had a legitimate expectancy that the criteria which then existed as the criteria to be

satisfied at the subsequent time of the decision being made

with respect to his application under clause 816.73 would be the same criteria as that then applied to him. It was argued on his behalf that he would have met and still does meet the criteria which were initially provided in subclause 816.732(2)(a), namely, that he "has successfully completed in Australia at least 1 year of full-time study or equivalent part-time study towards a post-secondary qualification for

which the primary language of instruction was English ..."

But, sub~clause 816.732(2)(a) was amended by Statutory Rule 87 of 1994, the relevant amendment being to omit that Paragraph and substitute a fresh paragraph (a) in these

"(a) has successfully met the academic progress requirements in the institution at which the applicant was enrolled for:

(ii) part-time study equivalent to at least 1 year of full-time study;

in an accredited course leading to a post-secondary qualification where

the primary language of instruction was English; ..."

This amendment commenced on 7 April 1994. The relevant definition of the expression "accredited

course" which applied at all relevant times, and as specified

in clause 816.131, is that it means a tertiary course that is

accredited as a tertiary course by a Commonwealth, State or Territory authority or offered and accredited by a tertiary institution, that is authorized to accredit its own courses by

In these circumstances it was argued on behalf of Mr Qiu that the repeal of the former subclause 816.732(2)(a) and the

substitution of the new provision did not operate to divest

If Mr Qiu had satisfied the criteria under subclause 816.721 which prevailed at the time of his application, it may have been possible to argue that he had a right to be an applicant and to have a decision made on his application, a right that could not be taken away. But Mr Qiu did not satisfy that criteria at the time of his application, because the qualifications which he held did not answer' the description of an "accredited course" for the purposes of subclause 816.721(2)(a). Mr Qiu has- the following

. A Bachelorate of Engineering from Wuhan University of the PRC;

. A Certificate in English from the Wessex College of English in Sydney; and

: A Diploma in Business Management at the Careers Business

The primary language for instruction for the two Australian

There 1s no evidence that either of these courses was an "accredited course" for the purposes of clause 816.721(2)(a). (See the definition of "accredited course" in clause 816.131 mentioned above.) Nor is there evidence that the degree from the Wuhan University has been assessed by National Office of Overseas Skills Recognition (NOOSR) as being comparable to an

Mr Qiu is not a "principal applicant" for the purposes of clause 816.732 because he has not met the requirements of clause 816.721(1)(a), namely, that although he was younger than 45 at the relevant date and he had met the requirements

of subclauses (4) or (6) of clause 816.721, he had not met the requirements of subclause (2) (subclause (3) is not relevant

As Mr Qiu did not satisfy the criteria which existed at the time of his application in order to be a "principal applicant", the argument is not available to him that any expectancy that he then had as to the criteria that would apply at the subsequent time of the decision with respect to his application, would still operate. He can have no rights accrued or acquired under clause 816.732 until the time for

decision with respect to his application has arrived. When

that time is reached the question will be whether Mr Qiu

It is common ground that Mr Qiu does not meet the criteria which clause 816.732(2)(a) now provides, which would require either of the two courses in which he was instructed in Australia to be an "accredited course" or English to have been the primary language of instruction of the course leading

to the Degree of Bachelor of Engineering from Wuhan

Another ground of alleged invalidity of clause 816.732 is that it is said to be inconsistent with s. 9 of the Racial

Discrimination Act 1975 (the Racial Discrimination Act).

In the case of Mr Liu a further attack is made, namely, that the Minister breached an "information privacy principle 11" within the meaning of the Privacy Act 1988 (the Privacy Act) in that he disclosed personal information about Mr Liu

The attacks under the Racial Discrimination Act and the

Section 9(1), (1A) and (2) of the Racial Discrimination

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.

(a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and

(b) the other person does not or cannot comply with the term, condition or requirement; and

(c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;

the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person's race, colour, descent or national or ethnic origin.

A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention."

The argument of counsel for the applicants is that, by requiring applicants to provide evidence of the kind mentioned in subclause 816.732(2) and (3), all in aid of demonstrating that they have ability to communicate in English in a mix of social and work situations, there has been a violation of a fundamental human right in that it singles out or distinguishes people who do not have a satisfactory grasp of English such as to enable them to communicate in the language properly from persons who can do so, thereby impairing the

For a statutory provision in the field of migration law (including a regulation such as 816.73) to require that persons who wish to have permanent residence status must satisfy certain criteria relating to their ability to communicate in the English language does not, in my opinion, involve a negation of a human right of the kind mentioned in 6. 9 (including rights or fundamental freedom of the kind referred to in Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination [see the

What clause 816 relevantly does is simply to say that if a person who has entered Australia wishes to have the advantage of permanent residence status, one of the criteria to be satisfied is a degree of proficiency in the English

language, namely, the ability to communicate in English in a

mix of social and work situations. Evidence of the kind specified in subclause 816.732(2) and (3) seems to me to be perfectly acceptable criteria for the Australian Government to adopt. It does not violate s. 9 of the Racial Discrimination Act that the Australian Government requires people who wish to live here as permanent residents to be proficient in the English language. There is no room in my view for the application of s. 9 of the Racial Discrimination Act in this

As to the Privacy Act, the point as I understand it is (in the case of Mr Liu) that he applied for his class 816 Entry Permit on 16 June 1994 and he received a document on or after 7 October 1994 from a manager of the STEP project informing him that he had to attend at the proposed test centre in order to undergo his special test of English proficiency. He has sworn that he did not authorize the Minister to release to any person involved in the English proficiency testing any information relating to him, including any applications he had made to the Minister for refugee status or for a class 816 Entry Permit. This is said to

The challenge is made on this ground by asserting that the Minister is a "record-keeper" within the meaning of s. 10 of the Privacy Act, in that he is an agency that is in

possession or control of a record of personal information,

that this record contains personal information about Mr Liu and that the Minister is required not to disclose it to any person, body or agency without Mr Liu's consent to the

"Personal information" is defined by s. 6, the interpretation section, as meaning information about an individual whose identity is apparent or can reasonably be ascertained from the information. The Minister answers the description of a ""record-keeper" since he has possession or control of records which contain personal information about Mr

The Minister relies on Principle 11 of the Privacy Act whereby a record-keeper, who has possession or control of a record which contains personal information, is not prohibited from disclosing the information if the individual concerned is reasonably likely to have been aware that information of that kind is usually passed to the particular person, body or agency to whom it has been disclosed (Principle 11(1)(a)) or the individual concerned has consented to this disclosure

Mr Liu is reasonably likely to have been aware that information of this kind is usually passed to a body such as NCELTR. Information conveyed to the Minister by Mr Liu in

support of his application for a class 816 Entry Permit must

carry with it the right of the Minister to use the information to enable the application for the Entry Permit to be processed. Part of the processing involves determination of the question whether Mr Liu has the requisite ability to communicate in English. The Minister chose to introduce the system of STEP and gave Mr Liu an opportunity to obtain qualification under it, that is under subclauses 816.732(1)

As to Principle 11(1)(d), the disclosure to STEP was required or authorized by regulation 23 of Statutory Rule No 261 of 1994 which required Mr lLiu's application for a transitional visa to be decided according to the criteria that applied to a class 816 Entry Permit, including the criteria in subclause 816.732(3) requiring a test of proficiency in the English language. The Minister is entitled to nominate a test of proficiency in the English language reasonably directed to the objective of establishing the ability of an applicant to communicate in English in a mix of social and work situations. This test can be administered by any person or body. There is no requirement by law that the Minister or his Department conduct the test. The Minister nominated NCELTR as the body responsible for administering the test for the purposes of subclause 816.732(3). In order that the applicant may sit for that test the Minister is required to disclose sufficient personal information to NCELTR to be able to include the

applicant in the test. Thus, the personal information

disclosed by the Minister to NCELTR to enable Mr Liu to sit

The applicants have failed to establish their cases.

The role of this Court is, of course, to determine questions of law. It is no part of the Court's function to rule on the question of whether, in a wider social content, the applicants should be granted permanent resident status.

That is a matter for the Executive Government of this country

I certify that this and the preceding twenty-eight (28) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.

Counsel for the Applicants Solicitors for the Applicants Counsel for the Respondent Solicitors for the Respondent