ay eran Par eRe ad ee OR Ree INA Reeth meee Ge eC met te re taal ae teen OF AUSTRALIA IN CHE PEDERAL COURT E VICTORIA DISTRICT KEGISTPY GENEPAL DIVISION EX TEMPORE JUDGMENT Coram: SMITHERS J. 22 March HIS HONOUR: Little, explored every possible avenues to support the ca think for Application for writ of mandemus against THE REGIicNAL DIRECTOR «NOPTH E Fs A AND COUNSELLOR cIMMICR HONS EONG (Respondent ) ex parte: HON CHEUIG LAL YING CHIU (Prosecutors) In this application in respect of Which Mr. appearing for the apvlicants, as usual, hes "~ ar er the inevitable resuit is that the application the order nisi for a writ cf mandamus muct be refused. Adopting what was said by Mr. Just:ce Toohey in hic judgment celating to applications bv Honora Marv Prid= eae) pe po ey a Ae Re ee eet ate Ret aa ad ae ant a ae te DEER Sy ae Lead Ukerahabe tte ete at tbe a ee ae and Elvs Frances Norman for writs of mandamus acgainst Roland Patrick Hassell and Desmond Matthew Tehen and Stanley McLeish Harris, Desuty President ana members of a Repatriation Review Tribunal, (WA G15 and 16 of 1984, unreported) I am satisfied that notwithstanding that the events with which the claim for mandamus are concerned occurred a considerable time before Z0 December 1983 at which date the jucsisdiction conferred on this court by section 39B of the Judiciary Act 1902 became exercisable, there is jurisdiction to grant the order nisi sought in this case aif the crounds for makina such an order exist. The application is put primarily on the around that the officer aqainst whom the writ of mandamus 15 sought refused to allow the applicants access to Australia, as a place, by reason of their race, nationality or ethnic origin contrary to s.11 of the Racial Discrimination Act 1975 (the Act). Such refusal was constituted by the refusal to issue to the applicants visas to travel to Australia and it is said by Me. Little that the effect of that conduct was to unlawfully refuse to allow the applicants access to Australia, Australia being within the meaning of the expression "any place" in section 1l(a) of the Act. eR BITRATE UEEe AR Te ewan rns po oe re eS ~ - - we eee Noe ow Oe eee & eT hee td etre ath Re tte iS ath edt OF ade CA ake ee ed tat! Sat teal cee Oe Dt mn ts I ete en tel oer eer PE te ae ae Leas It 13 arqued by Dr. Jessup that s.11 of the Act has no reference to the conduct of the officer concerned which is complained of in this case. He suggests that the section has no reference to the transaction which was involved in an immigration officer making assessments or otherwise exercising discretion concerning an application for a visa to Australia by a person or persons ina place outside Australia. i think this 18 correct. I think 1t 1s correct for the reason that to treat Australia as any place within the . meaning of s.ll(a) of the Act is incongruous. For the expression "any place" in the section of the Act to be read the way Mr. Little submits one would have to substitute for the words "anv place". "Australia or any place in Australia". There is certainly no justification for such a substitution. It is perfectly clear that places of limited area in Australia fall within the meaning of "any place" ino s.ll(a). One merelv has to look at the words in the section of the Act which follow, that is, "any place or vehicle that members of the public are ... entitled or allowed to use Lee", £0 zndicate this. Reference to the International Convention on the Elimination of All Forms of Pacial Discrimination (the Convention) upon which the Act is based indicates that the places in contemplation are the places to which, in an Sues ee mne wes ei 2 es Pa =". arn ts Ai SY ee ae ere a akan Lee Scan et a a A ete rime a SF ane al Australia, the public ordinarily have recourse, such as transport, hotels, cestaurants, cafes, theatres and parks: see article S(f) of the convention". It is said by Mr. Little that if one looks at the score sheet which was compiled in accordance with prevarling administrative procedures used in assessment by the officer against whom complaint is made. one can see that the score of the female applicant for a visa was marked down on racial grounds. The specific entry twhhich 1s said to support this view 15 an entry in paragraph 12 of the assessment score sheet. The entry relates to the adaptability of the applicant. Marks are to be awarded: 6, aif the assessment of adaptahility 1s that the applicant should adapt readily or quicklv: 4, if there are no forseeable difficulties; 1, some minor adaptation problems likely; and 0 if substantial adaptation problems are likely. The female applicant in this case was awarded one mark under tne heading of adaptability. The reason given was, "doubtful if spouse would make much effort to adapt, and would remain in ethnic community". It is FRE Ae STE rm en) ee nem eer em eee ee we meeeee = Tatettshe GS td Oe one Ee estat A ancl as oer Chane Bide th Neen ened ene a a nl) nN ee i aR ene ated ad thet wh ee at tT nce ee ee ree He Rae teen ae ee said that the inevitable inference 1s that the low mark for adaptability was aqiven because the lady was Chinese. To my mind, this does not follow at all. The question inevitably related to a lady who was Chinese, how would she adapt? She did not get low marks because she was Chinese but*because being Chinese, she was assessed as the kind of person who might not easily inteqrate or adapt to Australian conditions and society, and would remain in her ethnic community. To my mind, the mark reflected not that the lady was Chinese but rather, was an assessment of her personal qualities. That the officer was not being racially discriminating 1s demonstrated by the correspondinaly high mark given to her husband, a Chinese man, about his ability to aaapt. Me. Little referred to a number of other aspects of the scoring of the marks, but in my opinion they are all non-significant. In addition, it is apparent that the total score of the female applicant was so low that even if she had been awarded full marks for adaptability she would not have reached the lowest pass mark relevant to the issue of a visa. ree mpm treme ne ee - - mee es - ence ne ot ee eee: Themen Une oe toate tad teammate nee rte de? Leis be aeRO oe Oe ole te ate re ee ee te Ne ee . ? ~ ee le er ee les Cal UN eat Td Pe een eRe 4 The issue of an order nisi for a writ of mandamus 1s, of course, discretionary. Delay is relevant and there had been great delay. Mr. Little has argued that the delay was caused by ignorance of rights, namely that the alleqed contravention of provisions of the Act cnly became known a short time ago as a result of the provisions of the Freedom of Information Act 1982. That mav be so, but on the other hand conditions relevant to the issue of a visa have changed considerably since the date of the application for the visas. I think that 1t would be difficult to issue an order nisi for a writ of mandamus in view of the delay and that change of conditions. Delay is, however, 4 minor issue because the other matters which I have mentioned seem to me tobe fatal. Accordinaly TI dismiss the application for an order nisi for the issue of a writ of mandamus and I discharge the injunction which was granted against the Minister in the application in this case under the Administrative Decisions (Judicial Review) Act 1977 (Judicial Review Act). tee eee Pe ee ftw RES ANOLE AT ae res we aie wo o> ons ea. ralbecena rset te th al! aries: St Al LAG tial ae nk UNGlebe eh IT order the applicants to pay the respondent's costs of the application for the mandamus. I order also that the Minister have such costs as ware incurred by him in relation to the application under the Judicial Review Act which I dismiss. ee ena Ae fd en neernt © ne eg T cer werab wt 17 fam. b {} Be me eo Tite Getty . sud peace Bde OF dee LO a + by ee se ad uv 24/3 /ey Ferree MLN La AS Rhee TS SF AEE AOE ~ SC gS aT centtecer neg emen mins Fe rere or nnn netr er ree ee ee eee nee ren ©