FEDERAL COURT OF AUSTRALIA

IMMIGRATION – Migration Act 1958 (Cth) – whether regulation made under the Migration Act 1958 (Cth) amending the eligibility criteria for a temporary visa was invalid for unreasonableness – whether the regulation was reasonably proportionate to the purpose of the regulation‑making power – application of the reasonable proportionality test to purposive powers – whether the regulation discriminated against the Appellants on the basis of their national origin – Racial Discrimination Act 1973 (Cth) – relationship between direct and indirect discrimination

Racial Discrimination Act 1973 (Cth):  s 9(1)

Migration Regulations 1990:  Schedule 2, Part 435

Migration Regulations (Amendment) Statutory Rule No 184 of 1997:  clause 7

Migration Regulations (Amendment) Statutory Rule No 279 of 1997

LIYANAGE PILAK ROBERT LEONARD DE SILVA & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ANOR

VG 67 of 1998

BLACK CJ, GOLDBERG & FINKELSTEIN JJ

MELBOURNE

24 NOVEMBER 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  Kanchane Dinesh Rajapakse of West Footscray be joined as an appellant in the appeal.

2.                  The appeal be dismissed.

3.                  The appellants whose names are set out in the schedule to this order pay the respondents’ costs of the appeal but in the event that any appellant pays to the solicitor for the respondents a 1/158^th share of the costs within six weeks of the costs being agreed between the solicitors for the parties or taxed, then that payment shall be in full and final discharge of that appellant’s liability for the costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

SCHEDULE

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

INTRODUCTION

This is an appeal from a judgment of Justice Merkel, dismissing applications by one hundred and sixty-four applicants for a declaration that certain regulations made under the Migration Act 1958 (Cth) (“the Act”) are invalid.

The appellants contend that Merkel J should have declared one of those regulations to be invalid.  That regulation is contained in clause 7.1 of the Migration Regulations (Amendment) Statutory Rule No 184 of 1997 (“the Regulation”) and purports to amend the eligibility criteria for Subclass 435 temporary visas (Sri Lankan) contained in Schedule 2 of the Migration Regulations 1990. 

The appellants are citizens of Sri Lanka who entered Australia between 1 November 1993 and 31 July 1996, and who have been in Australia since their entry by authority of a Subclass 435 visa.  They claim that the Regulation would, if valid, terminate their entitlement to remain lawfully in Australia.

BACKGROUND

Subclass 435 visas were introduced in 1990 as entry permits “for temporary visitors from Sri Lanka” who had arrived lawfully in Australia under one of several different classes of other temporary permits.  The visas were introduced by s 119G of the Migration Regulations 1989 under s 31 of the Act (which provides for the creation of prescribed classes of visas and for regulations prescribing criteria for such classes), as part of a humanitarian program.  Under that program, temporary arrangements are made for persons lawfully in Australia who (in the government’s view) are unable to return, or ought not return, to their home country by reason of the situation there.  The Subclass 435 visas were one such arrangement which, Merkel J noted, were made by the government because of the civil conflict and unrest that existed in Sri Lanka in 1990.  Similar arrangements have also been made for persons from Lebanon, China, Iraq, Kuwait and the former Yugoslavia.

After their introduction in 1990, the Subclass 435 visas were extended or renewed several times without substantial change to their eligibility criteria.  The last such extension was granted in June 1996, when persons holding Subclass 435 visas who had lawfully entered into Australia on or before 31 July 1996 were authorised to remain in Australia until 31 July 1997. 

Following the June 1996 extension, the primary criteria for Subclass 435 visas were as follows.

 “435.2         PRIMARY CRITERIA

…

435.21                    Criteria to be satisfied at time of application

435.211                If section 48 of the Act applies to the applicant, he or she has not been refused a visa, or had a visa cancelled, under section 501 of the Act.

435.212        The applicant is a citizen, and normally a resident, of Sri Lanka.

435.213        The applicant did not enter Australia after 31 July 1996.

435.214        The applicant is not the holder of a visa (other than a Subclass 435 visa) having effect on or after 31 July 1997.

…

435.5            WHEN VISA IS IN EFFECT

435.511        Temporary visa permitting the holder to travel to, enter and remain in Australia until 31 July 1997.”

On 13 June 1997, the Minister for Immigration and Multicultural Affairs (“the Minister”) announced that a new category of permanent residence visas would be created for citizens from various countries, including Sri Lanka, who had arrived lawfully in Australia on or before 1 November 1993.  The terms of the proposal were explained in a fact sheet published by the Department of Immigration and Multicultural Affairs (“the Department”) at that time.

“…

Initially, eligible applicants will be granted further temporary residence … Permanent residence will be available to eligible applicants 10 years after the date of their first arrival in Australia. 

The criteria which applicants will need to satisfy for the new visas include those detailed below. 

It is expected that people will be able to apply for the new visas from 1 October 1997.

…

Criteria

To qualify for the temporary residence visa (the first stage) applicants must

-        have arrived lawfully in Australia from:

·              Kuwait                                 - on or before 31 October 1991;

·              Iraq                                      - on or before 31 October 1991;

·              Lebanon                               - on or before 30 November 1991;

·              China                                   - on or before 1 November 1993;

·              Sri Lanka                             - on or before 1 November 1993;

·              countries in the

former Yugoslavia

region                                   - on or before 1 November 1993;

-        be citizens of, and usually resident in, these countries;

-        have continued to reside in Australia since the dates mentioned above; and

-        meet Australia’s strict good health and character requirements.

To qualify for permanent residence (the second stage), applicants must:

-        hold the new temporary (first stage) visa;

-        have continued to reside in Australia; and

-        continue to meet good character requirements.”

The fact sheet expressly addressed how the proposed scheme would affect citizens of Sri Lanka with a Subclass 435 visa.

“…

I am Sri Lankan and I hold a Class 435 temporary visa which expires on 31 July 1997.  What will happen to me?

If you hold a Class 435 temporary visa and arrived in Australia on or before 1 November 1993, you will be able to apply for another Class 435 visa to carry you through until 31 July 1998.

If you apply for the new temporary visa, you will receive a Bridging Visa which will come into effect if your Class 435 visa expires before your temporary residence application is finalised and/or your Class 435 visa expires.

If you are a holder of a Class 435 visa and not eligible for the new visas you must depart Australia no later than 31 July 1997.  There will be no further extension to your current visa beyond 31 July 1997.”

On 30 June 1997, regulations were introduced to give effect to the first (temporary residence) stage of this scheme.  Those regulations are contained in clause 7 of Statutory Rule No 184 of 1997 (“the clause 7 regulations”) and clause 12 of the Migration Regulations (Amendment) Statutory Rule No 279 of 1997.  Their effect was summarised by Merkel J in his reasons for judgment.

“h      Statutory Rule No 279 created the subclass 850 Resolution of Status (Temporary) visa for, inter alia, Sri Lankans in Australia on or prior to 1 November 1993, and the permanent subclass 851 Resolution of Status visa for, inter alia, the holders of the subclass 435 or 850 visas, who satisfy the requirements for permanent residence, which included 10 years residence in Australia;

h        Statutory Rule No 184, inter alia, changed eligibility for subclass 435 visas for Sri Lankans in Australia from [entry to Australia] on or prior to 31 July 1996 [to entry on or prior] to 1 November 1993 and, to ensure that applicants for a subclass 850 visa would be lawfully in Australia at the date of their application, extended the period of the visa from 31 July 1997 to 31 July 1998 for those eligible to apply for it.”

Before Merkel J the appellants challenged the validity of both the clause 7 regulations and the regulations contained in clause 12 of Statutory Rule No 279.  On appeal, however, they confined their claim to clause 7.1 of Statutory Rule No 184.  It is convenient to set out, at this point, the whole of clause 7.

“7.       Schedule 2, Part 435 (Sri Lankan)

7.1       Clause 435.213:

Omit the clause, substitute:

“435.213         The applicant entered Australia on or before 1 November 1993 as the holder of an entry permit or an entry visa which had effect as if it were an entry permit.”

7.2       Clause 435.214:

Omit “31 July 1997.”, substitute “31 July 1998.”.

7.3       Clause 435.511:

Omit “31 July 1997.”, substitute “31 July 1998.”.”

(It will be recalled that the provisions of Schedule 2, Part 435 of the Migration Regulations that were amended by this clause were set out earlier in our reasons.)

THE PROCEEDINGS AT FIRST INSTANCE

Before Merkel J, the appellants contended that the Regulation, which introduced a new 1 November 1993 cut‑off date for eligibility for Subclass 435 visas, was invalid on the grounds that the selection of the 1 November 1993 cut‑off date:

(a)        was unreasonable in that it was arbitrary and capricious;

(b)        meant that the Regulation was not reasonably proportionate to the pursuit of a permitted regulation-making purpose; and

(c)        involved the Regulation being unlawful for direct discrimination under s 9(1) of the Racial Discrimination Act 1973 (Cth) (“the RDA”).  (The appellants also argued that the Regulation was invalid for indirect discrimination under s 9(1A), but abandoned that argument on appeal.)

In addition, the appellants claimed that whilst the Regulation was invalid, the other clause 7 regulations (which extended the operation of Subclass 435 visas from 31 July 1997 to 31 July 1998) were valid, and that the Regulation should be severed from clause 7 of Statutory Rule No 184.  The consequence of this, it was said, was either that there was no cut‑off date at all for Subclass 435 visas, or that the previous cut‑off date of 31 July 1996 remained.  It was contended that on either basis Subclass 435 visas operative until 31 July 1998 remained available to Sri Lankan citizens in Australia who had entered Australia after 1 November 1993 but before 31 July 1996 and that, as the appellants were such persons, the respondents had wrongfully refused to grant them extensions or renewals of their Subclass 435 visas.

Merkel J rejected the appellants’ contention that the Regulation was invalid for unreasonableness, lack of reasonable proportionality or discrimination.  His Honour also rejected the argument that the Regulation, if invalid, could be severed from clause 7 of Statutory Rule No 184. 

UNREASONABLENESS AND LACK OF REASONABLE PROPORTIONALITY

Merkel J considered the appellants’ claims of unreasonableness and lack of reasonable proportionality together, and concluded that the challenge to the Regulation’s validity failed.  His Honour’s conclusions can be summarised as follows:

·        The Regulation fell within the statutory description of regulations that the Minister was authorised to make under ss 31 and 504 of the Act. 

·        In addition, the Regulation was capable of being considered to be reasonably proportionate to the pursuit of the purpose for which regulations could be made under those sections; namely, to give effect to the objects of the Act including the regulation, in the national interest, of the coming into and presence in Australia of non-citizens (s 4).  The reason was that it was not unreasonable or disproportionate to afford certain longer term temporary visa holders an opportunity to become permanent residents by creating the scheme announced by the government on 13 June 1997 (including the Resolution of Status visas introduced by Statutory Rule No 279) to enable that object to be achieved.

·        Whilst there was necessarily some arbitrariness in the selection of the 1 November 1993 cut‑off date, the considerations balanced by the Minister in the process of that selection were relevant and reasonable, and were matters to which the executive branch of government was entitled to have regard in exercising its regulation-making power under the Act.  In addition, it was appropriate to ensure that persons eligible for one of the new Resolution of Status visas were lawful non-citizens at the date of their visa application, which was all the Regulation did.

·        Finally, the Minister’s further and discrete decision not to extend or renew the Subclass 435 visas was a decision which, as a matter of policy, was open to the Minister to make.  The appellants had no right under the Act or in law to compel the government to further extend their Subclass 435 visas.

The primary submission on behalf of the appellants is that Merkel J was in error in rejecting their claim that the Regulation was invalid for unreasonableness.  The appellants argue that his Honour should have concluded otherwise because he should have been satisfied that the selection of the 1 November 1993 cut‑off date was arbitrary and capricious.

In substance, the appellants submit that, in effect, a class of persons was created by the government’s introduction of the Subclass 435 visas.  That class comprised citizens of Sri Lanka who, for humanitarian reasons connected with conditions in their own country, were allowed to remain in Australia, and was expanded gradually over time to include the appellants.

The effect of the Regulation was that members of the class were treated differently by reference to the date of their entry into Australia.  Those who arrived on or before 1 November 1993 were entitled to an extension of their Subclass 435 visas, whilst those who arrived after that date were not.  According to the appellants, the 1 November 1993 cut‑off date was unrelated to any change in conditions in Sri Lanka, and was therefore not a rational basis for dividing the class or affording differential treatment to its members.  Indeed, there could be no rational basis for dividing the class by reference to any date.  This argument involves the submission that, having created a class of persons by reference to a single circumstance that applied to all, there could be no rational basis for treating those persons differently.  The government could either abolish the putative class in its entirety by not extending the visas of any of its members, or afford its members identical further rights to remain in Australia.

The respondents’ general answer to these submissions is that the findings of fact made by Merkel J showed that there was a perfectly rational basis for its selection of the 1 November 1993 cut‑off date, and that this answered any suggestion of unreasonableness in the exercise of its regulation-making power under the Act.

We agree that no case of unreasonableness in the selection of the 1 November 1993 cut‑off date was made out.  As the evidence before his Honour showed, the Subclass 435 visas were introduced in 1990 for humanitarian reasons.  Initially available for twelve months, they were subsequently extended or renewed over a period of seven years until 31 July 1997.  The government was under no obligation to further extend them beyond that date.

The final extension of Subclass 435 visas, announced in June 1996, applied only to persons who had arrived in Australia on or before 31 July 1996.  It was not available to new arrivals on the footing that further extensions beyond 31 July 1997 were unlikely.  It was later confirmed that there would be no further extensions except for those Sri Lankan citizens who had arrived lawfully in Australia on or before 1 November 1993 and who were otherwise eligible to apply for a Resolution of Status visa.  Such extension, as the evidence showed and Merkel J found, was necessary to ensure that the persons who would be eligible for a Resolution of Status visa were lawful non‑citizens in Australia on the dates of their visa applications.  As we have noted, Merkel J rejected the challenge to the validity of the regulation in clause 12 of Statutory Rule No 279 creating the Resolution of Status visas, and the challenge to the validity of that regulation is no longer pursued.  As Merkel J held, once it is concluded that the regulation creating the Resolution of Status visas is valid, it must follow that it is appropriate to ensure that the persons eligible for those visas are lawful non‑citizens at the date of applying for them, and this is all the Regulation does.

The concern of the appellants, however, is not that the group of persons who are eligible for a Resolution of Status visa have been granted further rights to remain in Australia so as to be able to apply for such a visa.  Rather, their concern is with how that group has been defined and, in particular, with the fact that it has not been defined to include all of the persons who held Subclass 435 visas at the time the Resolution of Status visas were created.

That concern is reflected in the appellants’ central submission, described above, that there was a class of persons defined by reference to a single factor – namely, its members’ entitlement to a Subclass 435 visa by reason of conditions in Sri Lanka – that could not rationally be divided, and that the Regulation’s division of that class by reference to a cut‑off date with no connection to conditions in Sri Lanka was therefore necessarily irrational and unreasonable.

In our view, however, that submission cannot be sustained.  The reason is that the Regulation was part of a scheme that involved the closure of the class identified by the appellants (“the first class”), and the creation of a new class of persons defined by reference to a completely different factor – namely, its members’ entitlement to a Resolution of Status visa by reason of the period of their residence and unresolved status in Australia (“the second class”).  We note, in this regard, that the right of the Minister to close the first class was acknowledged by the appellants, on the ground that such closure would not involve any division of that class or differential treatment of its members.

The closure of the first class was foreshadowed in June 1996 with the announcement that Subclass 435 visas would be extended until 31 July 1997 but probably not beyond that date, and took effect on 31 July 1997 when those visas expired.  The creation of the second class was foreshadowed on 13 June 1996 when the scheme involving creation of the Resolution of Status visas was publicly announced, and took effect in two stages with the introduction of Statutory Rule No 184 (on 30 June 1997) and Statutory Rule No 279 (on 1 October 1997) respectively.

The second class includes a range of persons from Kuwait, Iraq, Lebanon, China, Sri Lanka and countries in the former Yugoslavia, including certain persons with Subclass 435 visas (ie members of the first class), and is defined by reference to several criteria all of which reflect the rationale for its creation and the unifying characteristic of its members, “who had been allowed to remain temporarily in Australia for many years and whose status in Australia remained unresolved”.  (See the evidence of Mr Abdul Rizvi, extracted later in these reasons.)  To suggest, as the appellants do, that one of those criteria is unreasonable because it has no rational connection with conditions in Sri Lanka is to misunderstand the nature of the second class by confusing it with the first.

It follows that the definition of eligibility for a Resolution of Status visa and extended temporary visa (ie for membership of the second class) partly by reference to the date of an applicant’s entry into Australia cannot be said to have been inherently irrational on the ground that it has no rational connection with conditions in Sri Lanka, or with any other factor unique to the first class.  Put differently, the unreasonableness of the eligibility criteria for the second class cannot be judged by reference to considerations unique to the first class.

The question remains, however, whether the particular criterion introduced by the Regulation (that applicants have entered Australia on or before 1 November 1993) is unreasonable for being arbitrary or capricious on a ground other than its lack of any rational connection to conditions in Sri Lanka.

We agree with Merkel J that it is not.  In particular, we agree with his Honour, on the basis of the evidence of the Assistant Secretary of the Migration Branch of the Department, Mr Abdul Rizvi (which his Honour accepted and the appellants did not challenge), that the decision to introduce the 1 November 1993 cut‑off date was made after balancing considerations, related essentially to policy questions, that were relevant and reasonable in the circumstances, and to which the executive branch of government was entitled to have regard in the exercise of its regulation‑making power under the Act.  That evidence is set out in full in the reasons for judgment of Merkel J, and we set out here only those sections concerning the selection of the 1 November 1993 cut‑off date.

“…

The Resolution of Status visa classes are a response to the circumstances of a number of groups who had been allowed to remain temporarily in Australia for many years and whose status in Australia remain unresolved.  It was not intended that persons who were aware of the situation in their home countries, had the means to leave, and obtained temporary visas for Australia several years after the introduction of the 1990 extension of stay concession would benefit from the Resolution of Status visa classes.  The Resolution of Status visa classes are not a response to the present day situations in the above countries.

The cut off date of 1 November 1993 was determined taking into account a range of factors including Australia’s economic and budgetary capacity to assist.  It provides a necessary cut off between those who had been here for a lengthy period without their status resolved and those who had arrived more recently in the full knowledge of circumstances in their home countries.  The people who had arrived more recently were granted temporary extensions on the clear understanding that they would have to return home.

The cut off date was also consistent with previous arrangements, known as the 1 November 1993 decisions, which made permanent residence available to certain groups, primarily from the Peoples’ Republic of China, but including Sri Lankans who had applied for refugee status or had been granted humanitarian temporary entry permits, and met age and qualification criteria.  Those decisions had generated some hopes and expectations that other Sri Lankans in Australia at that time from broadly similar situations would also be allowed to stay.

The 1991 cut off dates for citizens of Iraq, Kuwait and Lebanon reflect the dates when earlier temporary concessions for those nationals ceased but nonetheless some persons remained in Australia with their status unresolved.

It is also appropriate to point out that any person in Australia, including Sri Lankans, who arrived after 1 November 1993, who believe they have a well founded fear of persecution on return as defined in the United Nations Convention on the Status of Refugees, may seek a Protection Visa.”

The Regulation challenged in this case falls very far short of the definition of unreasonableness referred to by Lockhart J in Qiu v Minister for Immigration (1994) 55 FCR 439 at 446 as meaning “that the regulation is so oppressive and capricious that no reasonable mind can justify it.”  (See also Bienke v Minister for Primary Industries and Energy (1995) 63 FCR 567 at 578 (Full Court)).  The appellants’ contention that the Regulation is unreasonable such that it goes beyond the scope of the Minister’s regulation‑making power must fail.

The appellants made it clear in the course of argument that their case of invalidity was based essentially on the ground of unreasonableness, and did not develop their claim of invalidity for lack of reasonable proportionality.  However, they did not abandon that claim, and it is therefore necessary to deal with it briefly.  Before doing so, we note that it was not suggested that the validity of a regulation could not be challenged for both unreasonableness and lack of proportionality.

The purposive nature of s 504(1) of the Act under which the Regulation was made allows for a challenge to the Regulation’s validity on the ground that it lacks reasonable proportionality (see Leask v The Commonwealth (1996) 187 CLR 579 per Brennan CJ, Gummow and Dawson JJ).  In particular, s 504(1) is a power for the purpose or object of giving effect to the Act, rather than a power upon a particular subject matter, so as to fall within the definition of “purposive power” adopted by Dawson J in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 89.  This is clear from the terms of s 504(1), which enables the Governor‑General to “make regulations prescribing all matters required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for carrying out or giving effect to the Act” (our emphasis).  The principal object of the Act is described in s 4 as being “to regulate, in the national interest, the coming into, and presence in, Australia of non‑citizens”.

The question is therefore whether the Regulation was shown to lack reasonable proportionality; that is, whether it was shown not to be capable of being considered to be reasonably proportionate (in the sense of being adapted or appropriate) to the pursuit of the object of regulating, in the national interest, the coming into and presence in Australia of non-citizens.  (See South Australia v Tanner (1989) 166 CLR 161, Cunliffe v The Commonwealth (1993‑4) 182 CLR 272, Qiu v Minister for Immigration (above) (Lockhart J), Bienke v Minister for Primary Industries and Energy (above) (Full Court), and Leask v The Commonwealth (above).)

It follows from what we have said generally on the question of unreasonableness that the Regulation cannot be said to be lacking in reasonable proportionality.  We would therefore dismiss the appeal in so far as it relies on a claim of invalidity for lack of reasonable proportionality.

Our conclusions make it unnecessary to consider the question of severance.

DISCRIMINATION

Merkel J also rejected the appellants’ claim that the regulations in clause 7 of Statutory Rule No 184 and clause 12 of Statutory Rule No 279 were unlawful for discrimination contrary to s 9(1) of the RDA.  His Honour did so on the following three main grounds.

·        The discrimination was not based on national origin or any other prohibited criterion.

His Honour held that, at best, the alleged discrimination was based on the appellants’ nationality at or since a specified date (ie, 1 November 1993) which, in his Honour’s view, was not the same as their national origin.

·        The true basis of any distinction in the regulations regarding eligibility for the extended Subclass 435 visas and Resolution of Status visas was the date of an individual’s entry into and continuous residence in Australia, and not his or her nationality or national origin.

In his Honour’s view, this meant that there were no grounds on which the purpose of the regulations could be said to have nullified or impaired any human right or freedom.  The reason was that Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (“the Convention”) did not recognise any general right of non‑citizens to continued residence in Australia.

·        Any discrimination that existed could only have been against nationals of Iraq, Kuwait and Lebanon who had entered Australia at an earlier date and therefore were subject to more stringent cut-off dates than the Sri Lankans.

But even then, his Honour held, the differing cut-off requirements were arrived at by balancing a number of factors, which did not appear to be based on nationality or national origin.

On appeal, the appellants initially contended that Merkel J should have concluded that the regulations were discriminatory contrary to s 9(1) because:

·                    they applied to persons on the basis of their national origin; and

·                    they had the effect of impairing the international right of persons of any national origin to the non-discriminatory operation of Australian migration regulations, and the right of such persons to the pursuit of residence and work under Article 5 of the Convention.

As previously noted, however, they abandoned their claim in respect of clause 12 of Statutory Rule No 279, and focused exclusively on the Regulation.

The basis of the appellants’ claim in respect of the Regulation is the proposition that the differential treatment of persons with Subclass 435 visas by reference to the date of their entry into Australia is discriminatory.  Direct discrimination under s 9(1) of the RDA requires:

h        an act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin.

h        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.

The starting point is therefore the identification of the allegedly unlawful act and a determination whether that act involves a distinction, exclusion, preference or restriction based on one of the prohibited criteria specified in s 9(1).

The relevant act in the present case was the making of the Regulation and, implicitly, the requirement that persons applying for an extended Subclass 435 visa have entered Australia on or before 1 November 1993.

At first instance, the appellants contended that the making of both regulations involved two distinctions based on the prohibited criterion of national origin.  The first distinction was between citizens of Sri Lanka with Subclass 435 visas who had entered Australia on or before 1 November 1993, and citizens of Sri Lanka with Subclass 435 visas who had entered Australia after that date.  The second distinction was between citizens of Sri Lanka with Subclass 435 visas who had entered Australia on or before 1 November 1993, and citizens of Kuwait, Iraq and Lebanon with equivalent visas who had entered Australia on or before 31 October 1991, 31 October 1991 and 30 November 1991 respectively.

On appeal, the appellants limited their case to the first of these distinctions, which they expressed alternatively as an exclusion of Sri Lankan citizens who arrived in Australia after 1 November 1993, a preference for Sri Lankan citizens who arrived in Australia prior to 1 November 1993, and a restriction upon the right to remain in Australia of Sri Lankan citizens who arrived in Australia after 1 November 1993.  They argued that this distinction, exclusion, preference or restriction is based upon the ‘national origin’ of the appellants in the sense that the appellants all originate from the nation of Sri Lanka.  Central to this argument is the submission that the Regulation differentiates on the basis of citizenship or nationality, and that nationality is a strong indicium of national origin.  As it was expressed in the appellants’ written submissions:

“That is the case for each of the applicants: their nationality is Sri Lankan, their national origin is also Sri Lankan.”

In formulating their case in this way, the appellants sought to overcome the effect of those cases in which a distinction has been drawn between national origin and nationality (see Ealing London Borough Council v Race Relations Board [1972] AC 342; Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 per Drummond J; Australian Medical Council v Wilson (1996) 68 FCR 46 per Sackville J).  But to say, as the appellants do, that nationality is a strong indicium of national origin, is not to say that those concepts are in truth the same so as to make both prohibited criteria under s 9(1).  It is, however, unnecessary for us to decide this point because, in our view, the claim of unlawful discrimination fails for another fundamental reason.

Properly formulated, the distinction drawn by the Regulation is between persons who arrived in Australia on or before 1 November 1993, and persons who arrived in Australia after 1 November 1993.  That distinction has no basis in national origin.  The fact that it only impacts upon persons who have otherwise satisfied the eligibility criteria for an extended Subclass 435 visa (including the criterion of Sri Lankan citizenship which, the appellants submit, amounts in this case to Sri Lankan national origin) is presently irrelevant.  It is not those other criteria that are under review; rather, it is the criterion, introduced by the Regulation, that an applicant have entered Australia on or before 1 November 1993.  The only question of relevance to such review is whether that criterion is based on national origin.  In our view it is not.  It is based on the date of individual applicants’ entry into Australia.

The argument that the Regulation is directly discriminatory because it applies, in its operation, to a group of persons defined partly by reference to their (alleged) national origin reflects, in our view, a misunderstanding of the nature of “direct discrimination” and, more specifically, of the difference between “direct discrimination” and “indirect discrimination” under s 9(1) and s 9(1A) of the RDA respectively.  The essence of that difference was described by Bowen CJ and Gummow J in Department of Foreign Affairs v Styles (1989) 88 ALR 621 at 626‑7 as follows.

“Section 5(1) [of the Sex Discrimination Act] refers to what is often conveniently referred to as ‘direct discrimination’, that is, practices which are discriminatory on their face … Section 5(2) refers to ‘indirect discrimination’, that is, practices which are fair in form and intention but discriminatory in impact and outcome.”

This description is reflected in the consideration of direct and indirect anti-discrimination laws in cases such as Commonwealth v Human Rights and Equal Opportunity Commission (Dopking’s Case) (1995) 133 ALR 629 and supports the conclusion that direct racial discrimination (contrary to s 9(1) of the RDA) is concerned with laws that discriminate on their face, whilst indirect racial discrimination (contrary to s 9(1A)) is concerned with laws that are facially neutral but discriminatory in impact and outcome.  The categories of direct and indirect discrimination are for this reason best considered as being mutually exclusive (Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 per Brennan J and Dawson J; Waters v Public Transport Corporation (1991) 173 CLR 349 per McHugh J and Dawson and Toohey JJ; Australian Medical Council v Wilson (above)).

The appellants’ claim that the Regulation is directly discriminatory despite the neutrality of its terms must therefore fail.  Merkel J was correct in concluding that no case of direct discrimination had been made out.

The reasons for our rejection of the appellants’ claim of unlawful discrimination make it unnecessary to determine whether Merkel J was correct in concluding that the Regulation did not impair or nullify any relevant human right or fundamental freedom or whether, as contended by the appellants, there are international rights to the non-discriminatory operation of Australian migration regulations and to the pursuit of residence and work in Australia.

It follows that the appeal must be dismissed with costs.

Associate:

Dated:              24 November 1998