Federal Court of Australia

Ekermawi v Commonwealth of Australia [2025] FCA 1141

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application filed on 10 July 2025 is dismissed.

2.    The amended originating application filed on 14 October 2024 is dismissed under section 31A(2) of the Federal Court of Australia Act 1976 (Cth) and rule 26.01(1) of the Federal Court Rules 2011 (Cth).

3.    The applicant is to pay the respondent’s costs, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application filed on 10 July 2025 is dismissed.

2.    The amended originating application filed on 14 October 2024 is dismissed under section 31A(2) of the Federal Court of Australia Act 1976 (Cth) and rule 26.01(1) of the Federal Court Rules 2011 (Cth).

3.    The applicant is to pay the respondent’s costs, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    By way of amended originating applications filed on 14 October 2024 in proceedings NSD 906 and NSD 907 of 2024 (amended applications) under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) against the Commonwealth, the applicant, Samir Ekermawi, alleges that he has been subjected to unlawful discrimination under the Racial Discrimination Act 1975 (Cth) (RDA).

2    By interlocutory applications dated 20 December 2024 and 10 June 2025, the Commonwealth seeks orders for Mr Ekermawi’s amended applications to be summarily dismissed under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth) (FCR).

3    By interlocutory applications filed on 10 July 2025 supported by an affidavit of Mr Ekermawi affirmed on 27 June 2025, Mr Ekermawi seeks orders dismissing the Commonwealth’s interlocutory applications. In addition, Mr Ekermawi seeks orders that the whole of his amended applications be upheld. However, as I explained at the hearing, to this extent the relief sought is not interlocutory in nature but final, and it would not be appropriate to determine that question at this stage of the proceeding. Rather, it is necessary first for me to determine the interlocutory applications for summary dismissal and, if need be, the jurisdictional issue also raised by the Commonwealth.

4    For the reasons set out below, Mr Ekermawi’s interlocutory applications must be dismissed and his applications for substantive relief summarily dismissed with costs on the ground that they have no reasonable prospects of success.

2.    BACKGROUND

2.1    The Complaint with the AHRC

5    On 2 August 2022, Mr Ekermawi, filed a complaint with the Australian Human Rights Commission (AHRC) against the Commonwealth alleging that:

(1)    he believed that he had experienced racial hatred and that his human rights had been breached by the Commonwealth;

(2)    his race was Palestinian;

(3)    the Australian government was complicit against the Palestinian nation;

(4)    the “Passport and Centrelink departments” had failed to place the name of Palestine in their computers so that he could identify Palestine in response to the question of his place of birth; and

(5)    the complaint could be resolved by the Commonwealth recognising Palestine as a place of birth in all of their computer systems which is a human right.

6    Given that the allegations were made against what Mr Ekermawi described as the “Passport and Centrelink departments”, the AHRC treated the complaint as two separate complaints, one against Services Australia (SA) and another against the Department of Foreign Affairs and Trade (DFAT).

7    On 16 May 2024, Mr Ekermawi was notified that each complaint had been terminated by a delegate of the President of the AHRC on the ground that the delegate was satisfied that there was no reasonable prospect of the matter being settled by conciliation.

2.2    Proceedings in the Federal Court following termination of the complaint with the AHRC

8    As earlier mentioned, Mr Ekermawi seeks relief under s 46PO of the AHRC Act against the Commonwealth. The amended originating applications in each proceeding are relevantly identical save that in NSD 906 of 2025, Mr Ekermawi’s complaints relate to conduct allegedly by SA, while in NSD 907 of 2025 Mr Ekermawi’s complaints relate to conduct allegedly by DFAT.

9    By his amended originating applications, Mr Ekermawi contends that SA and DFAT have:

engaged in unlawful conduct within the meaning of sections 9(1), 10(1), 17, and 18C(1) of the Racial Discrimination Act 1975 (Cth) (RD Act) and International Law, in relation to the Applicant, causing him mental health issues, systemic discrimination, denied social identities, denied right to equality before the law, and marginalised.

10    The unlawful conduct identified by Mr Ekermawi against SA and DFAT appears to be that:

(1)    SA restricts him from identifying Palestine as his country of birth in legal applications for Commonwealth public services, relevantly Centrelink applications, because the list of countries which may be selected when making an online application with SA does not include Palestine; and

(2)    DFAT “allows people to nominate countries that were countries at the time of their birth on their passports, [but] this is not allowed in the case of the Palestinians”.

11    Mr Ekermawi relevantly seeks relief in the following terms in both proceedings:

1.    Orders, declaring that the Respondent Commonwealth [SA/DFAT] has committed the unlawful discrimination alleged, and directing the Respondent not to repeat or continue such unlawful discrimination.

2.    Order, that the Respondent Commonwealth [SA/DFAT] to insert the words Palestine into all the Commonwealth computers, for the purpose of identifying Australian Palestinians and their progeny, equal to that of other Australians.

3.    Orders, requiring the Respondent to pay to the Applicants damages (including aggravated damages) by way of compensation for loss or damage suffered because of Respondent’s unlawful discrimination alleged, as the Court considers it to be appropriate.

4.    Orders, that the Respondent give apologies to the Applicants.

12    On 15 November 2024, the Commonwealth filed in each proceeding a notice of objection to the competency of the amended originating applications. The objection raised by the notices was that, on a fair reading of the application, Mr Ekermawi seeks relief and/or findings that are non-justiciable and fall outside the Court’s jurisdiction, namely, that the Court:

(1)    grant relief requiring the Commonwealth to recognise a Palestinian state; and/or

(2)    determine whether the Commonwealth should recognise a Palestinian state as a necessary step along the way to determining whether Mr Ekermawi has been subjected to unlawful discrimination.

13    The Commonwealth stated that relief in those terms was non-justiciable and beyond the Court’s jurisdiction because:

The Court has no constitutional competence to intervene in activities entrusted exclusively to the Executive by Chapter II of the Constitution. One such activity is the recognition of foreign sovereigns and foreign states.

Relatedly, there will be no “matter” before the Court for the purposes of Chapter III of the Constitution if determination of the controversy would require adjudication of obligations which depend entirely on political sanctions and understandings, such as understandings between Australia and foreign governments.

14    In light of the decision in Tickle v Giggle for Girls Pty Ltd [2023] FCA 553 at [25] (Bromwich J) that the FCR do not provide for notices of objection to competency to be filed in relation to a proceeding under s 46PO(1) of the AHRC Act, the Commonwealth also filed an interlocutory application in each proceeding seeking orders dismissing the amended originating applications in whole for want of jurisdiction on the same grounds as those identified in its notices of objection to competency (the jurisdictional applications). As the Commonwealth’s jurisdictional applications and the notices of objection to competency raised a constitutional issue, the Commonwealth also filed and served notices of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth) in each proceeding. I note that none of the Attorneys-General of the states or the territories sought to intervene.

15    On 22 July 2025, the Commonwealth filed an amended interlocutory application in each proceeding seeking summary dismissal of the proceedings, pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth) (FCR) (the summary dismissal applications). In the alternative, the Commonwealth seeks orders striking out the whole of the amended originating applications pursuant to s 23 of the FCA Act and/or r 1.32 of the FCR.

16    In addition, on 10 July 2025, Mr Ekermawi filed an interlocutory application seeking the following orders (the applicant’s interlocutory applications):

The whole of the Respondents filed applications being; (a) notice of objection to competency filed on 15/11/2024 (b) interlocutory applications filed on 10/06/2025 and the notice of a constitutional matter files on 13/06/2025 as well as all the affidavits associated with those applications. Be dismissed, for failing to comply with s 16.32 of the rules. The Respondents has not filed a defence or a viable defence.

The whole of the Respondents filed applications being; (a) notice of objection to competency filed on 15/11/2024 (b) interlocutory applications filed on 10/06/2025 and the notice of a constitutional matter files on 13/06/2025 as well as all the affidavits associated with those applications. Be dismissed, for not complying with the rules and their applications lake truthfulness, vague, and there is a “question of competency”.

The whole of the Applicant application filed on 14 October 2024 (Amended Application) be up held on the grounds set out also in the Applicant’s application filed on 2 April 2024 the Originating Applications proceedings under s 46PO of the Australian Human Right Commission Act (Cth) (AHRCA); and his filed affidavit, of the 1 July 2025.

(Original emphasis.)

17    As I explained at the hearing, the last of these orders was not interlocutory in nature but sought final orders which fell to be considered only if I were to dismiss the summary dismissal applications and find that the Court had jurisdiction contrary to the contentions raised by the notices of objection to competency. As such, this issue does not presently arise.

18    By orders made on 17 December 2024 and 18 July 2025, all three interlocutory applications (the jurisdictional applications, the summary dismissal applications, and the applicant’s interlocutory applications) were listed to be heard on 22 July 2025.

3.    LEGISLATIVE SCHEME

19    Part IIB of the AHRC Act establishes a regime for redress for “unlawful discrimination” (as defined in s 3(1) of the AHRC Act) under various Commonwealth anti-discrimination laws, including, relevantly, Part II of the RDA in which ss 9(1), 10(1) and 17 appear and Part IIA of the RDA in which s 18C is located: see s 46P(1), AHRC Act.

20    Commencing with s 9(1) of the RDA, sub-s (1) relevantly proscribes racially discriminatory acts by “a person” in the following terms:

It is unlawful for a person to do any 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.

21    The terms of s 9(1) are taken directly from Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and must, therefore, be construed in that international context: Baird v Queensland [2006] FCAFC 162; (2006) 156 FCR 451 at [58] (Allsop J (as his Honour then was) (with whose reasons Spender and Edmonds JJ agreed)) and the authorities cited there; Wotton v State of Queensland (No 5) [2016] FCA 1457; (2016) 352 ALR 146 at [511] and [517] (Mortimer J). As Brennan J (as his Honour then was) explained in Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 at 125-126:

human rights or fundamental freedoms are not to be understood as the rights and freedoms which a person has under a particular legal system; they are rights and freedoms which every legal system ought to recognize and observe. They are inalienable rights and freedoms that a human being possesses simply in virtue of [their] humanity…

22    Secondly, s 10(1) of the RDA, on which Mr Ekermawi also relies, provides for rights to equality before the law:

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.

23    Thirdly, s 17 of the RDA renders it unlawful to incite the doing of unlawful acts and is in the following terms:

It is unlawful for a person:

(a)     to incite the doing of an act that is unlawful by reason of a provision of this Part; or

(b)     to assist or promote whether by financial assistance or otherwise the doing of such an act.

24    Finally, s 18C(1) in Part IIA of the RDA prohibits offensive behaviour because of race, colour, or national or ethnic origin in the following terms:

It is unlawful for a person to do an act, otherwise than in private, if:

(a)     the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b)     the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

4.    EVIDENCE

25    The Commonwealth relied on the evidence of the following witnesses:

(1)    In NSD 906 of 2024, the affidavit of Melissa Ann Haines, National Manager of the Social Security Cross Programs Branch of SA, affirmed on 10 April 2025 (Haines Affidavit).

(2)    In NSD 907 of 2024, the affidavit of Troy Kaizik, Assistant Secretary in the Passport Integrity and Support Branch within the Australian Passport Office (APO), DFAT, sworn on 10 April 2025 (Kaizik Affidavit).

(3)    In both proceedings, the affidavit of Damian Craig White, Assistant Secretary of the Middle East Branch, DFAT, affirmed on 10 April 2025. Mr White’s evidence is that the Executive Branch of the Commonwealth Government makes decisions on whether to recognise an entity as a state and that as at the date of his affidavit, Australia does not recognise a Palestinian state.

26    Mr Ekermawi relied on his affidavit affirmed on 27 June 2025 in support of his interlocutory application.

5.    SUMMARY DISMISSAL APPLICATIONS

5.1    Principles

27    The Commonwealth’s summary dismissal applications are made under s 31A of the FCA Act which relevantly provides that:

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)     the first party is defending the proceeding or that part of the proceeding; and

(b)     the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)     hopeless; or

(b)     bound to fail;

for it to have no reasonable prospect of success.

28    Section 31A applies to a case in which there is no statement of claim and only an originating application, as in the present case: see, eg, Payne v Davies [2019] FCA 1506; Tomas v Fair Work Commission [2022] FCA 1261.

29    The test for summary dismissal laid down by r 26.01(1)(a) of the FCR is the same test for summary dismissal as that in s 31A of the FCA Act: Shammas v Canberra Institute of Technology [2014] FCA 71 at [13], [51] (Foster J). Rule 26.01 also provides for summary judgment to be given against a party where the proceeding is frivolous or vexatious, no reasonable cause of action is disclosed, or the proceeding is an abuse of Court process (r 26.01(b), (c) and (d) respectively).

30    A “reasonable prospect of success”, in turn, is “real, not fanciful or merely arguable”: Rogers v Asset Loan Co Pty Ltd [2008] FCA 1305; (2008) 250 ALR 82 at [41] (Logan J). The question is whether the argument is “sufficiently strong to warrant the matter going to trial”: Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2008] FCA 1257; (2008) 78 IPR 586 at [28] (Emmett J), cited in McAleer v Western Australia (No 3) [2008] FCA 1490; (2008) 171 FCR 499 at [39] (Siopsis J).

31    The principles governing the application of s 31A are well established and were summarised in Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [7] (Perry J) as follows:

(1)    The respondent as the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Cassimatis) at 271 [45] (Reeves J).

(2)    With respect to the scope of s 31A, French CJ and Gummow J explained in Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [22], that the section:

… will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the long-standing category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.

(3)    Section 31A sets a lower threshold than the previous test for summary dismissal which required that the claim be “manifestly groundless” or “hopeless”: Spencer at [52]-[53] (Hayne, Crennan, Kiefel and Bell JJ). Nonetheless, the discretion must still be exercised with caution (Spencer at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ)).

(4)     An assessment of whether a proceeding has no reasonable prospects of success for the purposes of s 31A involves the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 (Kowalski) at [28] (the Court).

(See also e.g. Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978 at [3] (McKerracher J); and Kimber v Clark in his capacity as trustee of the property of Kimber (No 3) [2025] FCA 86 at [27]-[29] (Perry J).)

32    Consistently with these principles, Reeves J in Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 explained at [46] that:

… the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.

33    His Honour illustrated the application of these principles at [47]-[48] as follows:

Accepting there can be no ‘hard and fast’ rule about this, as a general principle, these authorities show that the moving party on an application for summary dismissal of the present kind is likely to succeed on its persuasive onus if it is able to demonstrate to the Court that the applicant's success in the proceedings relies upon a question of fact that can be truly described as fanciful, trifling, implausible, improbable, tenuous or one that is contradicted by all the available documents or other materials. Conversely, as a general principle, it is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined between the parties. This is more likely to be the case where the available materials include pleadings that raise factual disputes that can be truly described as significant, substantial, plausible or weighty. A real question of fact is also more likely to exist where the question/s of fact concerned is/are complex, eg involving numerous different events or transactions over a long period of time.

Similarly, as a general principle, the moving party on an application for summary dismissal is likely to succeed on its persuasive onus if it is able to demonstrate to the Court that the applicant's success in the proceedings relies upon a question of law that is straightforward and confined, or is trite in the sense that it is well settled on authority, such that the question can be resolved summarily without the necessity for a full trial. On the other hand, the moving party would be unlikely to succeed if the Court is satisfied that the applicant's success in the proceedings relies upon a question of law that is serious or important, or is difficult and therefore likely to require lengthy argument for its resolution, or involves conflicting authority, or is apparently arguable, yet novel.

(Emphasis added.)

34    In line with these principles, a determination of whether or not to summarily dismiss an action is not limited to a consideration of the pleadings but may (as the Commonwealth submitted here) include evidence establishing that the proceeding has no reasonable prospect of success. Thus, French J (as his Honour then was) held in Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [20] that:

In order to secure judgment under s 31A it must be shown that the party prosecuting or defending the proceeding has no reasonable prospect of success. This judgment can be made, by reference to pleadings, where there is a defect in the pleadings which cannot be cured. Alternatively, it may be a judgment made by reference to evidence put on in support of an application under s 31A which reasonably excludes the possibility that facts essential to the success of the claim or defence will be able to be established. For example, if a cause of action depends critically for its success upon the presence of the defendant at a particular place, at a particular time and the defendant is able to show, on affidavit, that he or she was not at that place at the particular time and there is no evidence to contradict that “alibi” then the judgment may be made that the proceeding has no reasonable prospect of success. In such a case judgment may be given for the defendant. Alternatively, if a defence is pleaded which depends critically for its success upon the defendant’s denial that it was a party to a contract, then an affidavit by the applicant exhibiting the contract with the defendant’s signature on it, supported by affidavits from witnesses to the execution of the contract by the defendant may be sufficient to support a judgment under s 31A. Of course, if the defendant were to file an affidavit in reply indicating that the material in the applicant’s affidavit evidence was disputed, then it is unlikely that a finding could be made that the defendant had no reasonable prospect of success.

35    Finally, the Commonwealth submits that the Court has discretion to decline to consider the jurisdictional issues raised by the Commonwealth’s jurisdictional applications if the Commonwealth’s summary dismissal applications succeed, and ought to adopt this course here: Babet v Electoral Commissioner [2023] FCAFC 164; (2023) 300 FCR 81 at [58] (Besanko, Wheelahan and Stewart JJ). I agree that this is the appropriate course to follow in this case, given that the application is clearly without any merit in any event for reasons I shortly explain.

5.2    The parties’ submissions

36    The Commonwealth submits that the amended originating applications fail to disclose a reasonable cause of action as a matter of law, or have no reasonable prospect of establishing one or more legal integers essential to the claims. Further, the Commonwealth contends that the evidence adduced by it establishes facts that are fatal to Mr Ekermawi’s claims.

37    As earlier explained, Mr Ekermawi claims that the Commonwealth has engaged in unlawful conduct within the meaning of ss 9(1), 10(1), 17 and 18C(1) of the RDA and international law, “causing him mental health issues, systemic discrimination, denied social identities, denied right to equality before the law, and marginalised”. He further contends that his human rights “have been restricted from the use of his country of birth in legal applications to the Commonwealth public services”. Mr Ekermawi submits that “[t]here is no legal impediment to Australia’s recognition of Palestine or the Palestinians” and that Australia is complicit in genocide perpetrated against the Palestinian people by Israel. Mr Ekermawi seeks to rely upon the principle in Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437 (Mason CJ, Brennan, Gaudron and McHugh JJ) that “[t]he courts should not impute to the legislature an intention to interfere with fundamental rights” and that “[s]uch an intention must be clearly manifested by unmistakeable and unambiguous language”. At the hearing, Mr Ekermawi also submitted that his complaint extends to SA presently listing “Israel” as his country of birth and previously listing “Lebanon” as his country of birth.

38    In his interlocutory application of 10 July 2025, Mr Ekermawi further submits that the respondent’s interlocutory applications should be dismissed for failing to comply with r 16.32 of the FCR, because the respondent has not filed a defence or a viable defence. Rule 16.32 relevantly provides that “[a] respondent must file a defence, in accordance with Form 33, within 28 days after service of the statement of claim”. The respondent submits that there is no breach of r 16.32 because the matter has not proceeded by way of pleadings.

5.3    Disposition

39    For the reasons set out below, the Commonwealth’s summary dismissal application should be upheld. While Mr Ekermawi makes broad submissions as to the Commonwealth’s recognition of Palestine, his amended originating application does not disclose any claim capable of giving rise to the alleged breaches of the RDA.

40    First, s 10(1) of the RDA is a law of a very different kind from s 9 which proscribes particular acts by a person. As the respondent submitted, the “key requirement” in s 10(1) is that the discrimination occur “by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory”. As such, this provision is concerned with the operation of discriminatory Commonwealth, State and Territory laws. Thus, the primary manner in which s 10(1) operates is to enhance or “top up” the rights referred to the level required to eliminate any inequality which would otherwise exist between the enjoyment of such rights by persons of different races, colour, or national or ethnic origin by reason of a Commonwealth, State or Territory law. As Mason J (as his Honour then was) said in Gerhardy at 98:

If racial discrimination arises under or by virtue of State law because the relevant State law merely omits to make enjoyment of the right universal, ie by failing to confer it on persons of particular race, then s 10 operates to confer that right on persons of that particular race. In this situation the section proceeds on the footing that the right which it confers is complementary to the right created by the State law.

41    While in this passage, Mason J was concerned to explain the primary operation of s 10(1) on State laws, the manner in which the provision operates with respect to Commonwealth laws that fall within its purview is relevantly the same.

42    It follows that Mr Ekermawi’s reliance on s 10(1) as rendering acts allegedly undertaken by the Commonwealth unlawful is misconceived and cannot succeed in law. Nor has Mr Ekermawi identified “a law of the Commonwealth” for the purposes of s 10 of the RDA.

43    Secondly, Mr Ekermawi has not identified any “act that is unlawful by reason of a provision of this Part” for the purposes of s 17 of the RDA. Nor has he particularised the manner in which it is alleged that the acts “offend, insult, humiliate or intimidate [a] person or a group of people” for the purposes of s 18C of the RDA.

44    Thirdly, to establish a breach of s 9(1) of the RDA it is necessary to show that a person’s enjoyment of a “human right or fundamental freedom” of the kind earlier explained has been impaired, either directly or indirectly. However, Mr Ekermawi has not identified a right or fundamental freedom in the relevant sense which was impaired by the acts of the Commonwealth. For example, in its request for particulars, the Commonwealth asked Mr Ekermawi: “What is the relevant human right or fundamental freedom?”. In response, Mr Ekermawi did not identify a particular right but instead stated:

For Australia not to 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, to the Applicant.

45    Nor does Mr Ekermawi’s claim otherwise implicate any right identifiable in ICERD. Article 5 of ICERD provides that States Parties should undertake to prohibit and to eliminate racial discrimination, and to guarantee 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;

(b)     The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution;

(c)     Political rights, in particular the right to participate in elections-to vote and to stand for election-on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service;

(d)     Other civil rights, in particular:

(i)     The right to freedom of movement and residence within the border of the State;

(ii)     The right to leave any country, including one's own, and to return to one's country;

(iii)     The right to nationality;

(iv)     The right to marriage and choice of spouse;

(v)     The right to own property alone as well as in association with others;

(vi)     The right to inherit;

(vii)     The right to freedom of thought, conscience and religion;

(viii)     The right to freedom of opinion and expression;

(ix)     The right to freedom of peaceful assembly and association;

(e)     Economic, social and cultural rights, in particular:

(i)     The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration;

(ii)     The right to form and join trade unions;

(iii)     The right to housing;

(iv)     The right to public health, medical care, social security and social services;

(v)     The right to education and training;

(vi)     The right to equal participation in cultural activities;

(f)     The right of access to any place or service intended for use by the general public, such as transport hotels, restaurants, cafes, theatres and parks.

46    However, as the respondent submits, “there is no human right to have a particular place of birth recorded in governmental records or official documents”. Indeed, the evidence establishes that in the case of Australian passports, DFAT’s policy is generally that the customer’s suburb, town or city of birth or overseas equivalent will be printed on a travel document. The country of birth will be printed on the travel document only if there is no other place of birth known and will otherwise only be recorded in DFAT’s internal passport mainframe, the Passport Issuance and Control System (PICS).

47    Further and alternatively, it is not possible to characterise the right at a higher level of generality on the present facts. For example, the “right to nationality” in art 5(d)(iii) of ICERD is also not applicable, because its reference to “nationality” is distinct from “national origin”. While “national origin” denotes a person’s bond to a national or ethnic group at birth, nationality may “change during a person’s lifetime”: Application of the ICERD (Qatar v United Arab Emirates) (Preliminary Objections) [2021] ICJ Rep 71 at [81]. In the present case, Mr Ekermawi was naturalised as an Australian citizen on 14 May 1970.

48    As to the right of freedom of expression in art 5(d)(viii) of ICERD, the evidence of the Commonwealth establishes that neither SA nor DFAT prevented Mr Ekermawi from representing that he was from Palestine, or from a place other than the list of countries used by SA and DFAT. Any case to the contrary is contradicted by all of the available evidence.

(1)    The Haines Affidavit states at [18] that it is possible for a person to write “Palestine” or “any other value of their choosing” in a hard copy application for social security payments which does not restrict what a person can write in response to questions.

(2)    The Kaizik Affidavit states at [26] that, prior to 14 March 2025, the dropdown list in the online application form used by the Australian Passport Office included “Palestinian Territories” and “Not Listed”. On 14 March 2025, the dropdown list was amended to replace the option “Palestinian Territories” with “Occupied Palestinian Territories”. It is also open to Mr Ekermawi to request to have the code “BMP”, meaning “British Mandated Palestine”, listed as his country of birth in PICS as his date of birth is before 14 May 1948: at [57]-[58].

(3)    It is otherwise open to Mr Ekermawi to select “unspecified”, “Not Listed” or “XXX”: Haines Affidavit [40], [44]; Kaizik Affidavit [40].

49    The Haines Affidavit further deposes that Mr Ekermawi in fact submitted applications recording his country of birth as “Palestine”. For example, Mr Ekermawi submitted claims in hard copy for social security payments which identified Palestine as his country of birth on 2 March 2005, 25 March 2008 and 7 November 2009, even though it was not possible to record Mr Ekermawi’s country of birth entered in the ISIS database for Centrelink purposes as “Palestine”: Haines Affidavit at [54] and [55.2]. Further, on 17 August 2016, Mr Ekermawi lodged a passport renewal form in which Mr Ekermawi handwrote “Palestine” next to the country of birth section on the PC7 form (a pre-filled passport renewal application form): Kaizik Affidavit at [51]. As such, the impugned acts do not interfere with Mr Ekermawi’s capacity to represent “Palestine” as his country of origin, but rather involve the recording of a person’s country of birth for DFAT’s and SA’s own purposes in ISIS or PICS.

50    Nor does the inability to select “Palestine” otherwise impact a person’s eligibility for social security payments or passport renewal, or implicate a human right or fundamental freedom in that way. In relation to social security, the Haines Affidavit states, at [45]-[46], that a customer who records “Palestine” as their country of birth on a hard copy application form, or a customer whose country of birth is recorded as “unspecified” in the ISIS database, is not prevented from receiving social security payments. This is because “there are no social security payments administered by Centrelink that require a person to be born in a specific country”: at [47]. Similarly, the Kaizik Affidavit establishes (at [46]) that, if a person’s country of birth is recorded in PICS as “XXX” (as was the case for Mr Ekermawi), the person is not prevented from obtaining or renewing an Australian passport. While country of birth information is used to identify the passport applicant, it does not affect Australian passport eligibility which turns on Australian citizenship. As a naturalised Australian citizen, Mr Ekermawi’s eligibility is not affected by his country of birth.

51    For these reasons, Mr Ekermawi is also not assisted by his reliance on Coco, as there is no fundamental right he has identified with which the impugned acts of SA and DFAT interfere.

52    Fourthly, while Mr Ekermawi complained of SA listing “Israel” and “Lebanon” as his country of birth at various times, no ground of the amended originating application made any such allegation. This contention can be dismissed on that basis. Alternatively, and in any event, it is unclear how it was said that such acts by SA may contravene the RDA. The evidence establishes that nothing precludes Mr Ekermawi from requesting removal of a country of birth with which he is not satisfied. For example, it is open to Mr Ekermawi to select “unspecified” in an online application form to avoid listing “Israel” or “Lebanon”: Haines Affidavit at [40].

53    Finally, the respondent has not breached r 16.32 of the FCR by failing to file a defence. The matters proceeded by way of amended originating applications, and no statement of claim was filed by Mr Ekermawi. Rule 16.31 of the FCR provides that div 16.3 “applies if a proceeding is started by an originating application supported by a statement of claim or the Court has ordered that the proceeding continues on pleadings”. It follows that r 16.32 does not apply because no statement of claim was filed in the present proceeding.

6.    CONCLUSION

54    For these reasons, I am satisfied that Mr Ekermawi has no reasonable prospects of success for the purposes of s 31A of the FCA Act and FCR r 26.01(1). No factual disputes are raised which can be described as “significant, substantial, plausible or weighty”, nor any legal issues with reasonable prospects of success. Nor are these deficiencies capable of being remedied by Mr Ekermawi being afforded a further opportunity to replead. Rather, Mr Ekermawi’s claims fall well short of being sufficiently strong to warrant the matter going to trial and his amended originating applications should be summarily dismissed.

Associate:

Dated:    18 September 2025