ADEREMI and TAFE INTERNATIONAL WA - [2024] WASAT 141

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION:   ADEREMI and TAFE INTERNATIONAL WA [2024] WASAT 141
MEMBER:   DR M EVANS-BONNER, SENIOR MEMBER
HEARD:   30 SEPTEMBER 2024
DELIVERED          :   12 DECEMBER 2024
FILE NO/S:   EOA 2 of 2024
BETWEEN:   ADEDIPUPO TONY ADEREMI
Applicant
AND
TAFE INTERNATIONAL WA
Respondent

Catchwords:

Equal opportunity - Application to strike out or dismiss proceeding under the Equal Opportunity Act 1984 (WA) - Whether the application should be dismissed pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) - Allegation of discrimination on the ground of race in the provision of services - Whether services were provided, and if so, whether they were provided to the applicant - Standing - Applicant not an 'aggrieved person' - Proceeding dismissed under s 47(2) of the State Administrative Tribunal Act 2004 (WA) on the basis that it was frivolous, vexatious, misconceived or lacking in substance

Legislation:

Equal Opportunity Act 1984 (WA), s 3(a), s 4, s 36, s 36(1), s 36(1a), s 36(2), s 46, s 66K(1), s 83(1), s 83(2), s 84, s 89, s 90(1), s 90(2), s 107(3), s 127(b)(i), Part III
Interpretation Act 1984 (WA)
Migration Act 1958 (Cth), s 276, s 276(1)(a), s 276(2)(a), s 280, s 281
State Administrative Tribunal Act 2004 (WA), s 32(2)(b), s 46, s 47, s 47(1), s 47(1)(a), s 47(1)(b), s 47(2)
Vocational Education and Training (TAFE International WA) Order 1997
Vocational Education and Training Act 1996 (WA)

Result:

The Respondent's application under s 47(2) of the State Administrative Tribunal Act 2004 (WA) is upheld
Proceeding EOA 2 of 2024 is dismissed on the basis that it was frivolous, vexatious, misconceived or lacking in substance

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Mr GM Scott (with Mr A Gibson)

Solicitors:

Applicant	:	N/A
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141
Efficient Building Team Pty Ltd and Perth Recruitment Services Pty Ltd [2023] WASAT 37
Ellis and Director General of the Department of Transport [2011] WASAT 142
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
IW v City of Perth (1997) 191 CLR 1
JJ and Director General, Department of Communities [2022] WASAT 106
Laurent and Commissioner of Police [2009] WASAT 254
Legal Profession Complaints Committee and Khosa [2019] WASAT 143
R v Entry Clearance Officer; ex parte Amin [1983] 2 AC 818
Rainsford v State of Victoria (2008) 167 FCR 26
Rainsford v Victoria [2007] FCA 1059
Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213
Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770
State Electricity Commission of Victoria v Rabel [1998] 1 VR 102
Sumanasekera and The State of Western Australia [2017] WASAT 43
Summerville and Department of Education & Ors [2006] WASAT 174

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The Respondent, TAFE International WA, is seeking that I dismiss the current proceeding, which concerns a complaint made by the Applicant, Mr Aderemi, of discrimination by the Respondent on the ground of race in the provision of services, contrary to s 36 and s 46 of the Equal Opportunity Act 1984 (WA) (EO Act).
The complaint was referred to this Tribunal by the Commissioner for Equal Opportunity (Commissioner) under s 90(2) of the EO Act at the request of Mr Aderemi after the Commissioner investigated and found the complaint to be misconceived and lacking in substance.
The Respondent alleges that the proceeding should be dismissed, or struck out in its entirety, pursuant to s 47(2) of the State Administrative TribunalAct 2004 (WA) (SAT Act) on the ground that it is frivolous, vexatious, misconceived and/or lacking in substance, or alternatively, on the ground that the application is for an improper purpose.
The substance of the Respondent's argument is that Mr Aderemi does not have a reasonably arguable case under the relevant provisions of the EO Act.
The Respondent also seeks costs.
For the reasons set out below, I have decided to dismiss the application on the basis that it is frivolous, vexatious, misconceived or lacking in substance. I will hear further submissions from the parties regarding costs.

The parties

The Respondent was established under s 57 of the Vocational Education and Training Act 1996 (WA) by an order made on 17 June 1997, namely the Vocational Education and Training (TAFE International WA) Order 1997 (the Order), which was published in the Western Australian, Government Gazette No. 99 (27 June 1997).
That order states, amongst other things, that the functions of the Respondent include 'to make arrangements for and facilitate the provision of vocational education and training and related services either directly or through any agency to overseas students in or outside the State and to persons or organisations outside the State in conjunction with a college or otherwise'.
In written submissions, the Respondent explained that it is responsible for recruiting and admitting international students into TAFE colleges for vocational education. It is also a registered provider on the Commonwealth Register of Institutions and Courses for Overseas Students (known as 'CRICOS'). This means that the Respondent operates as a first step to a prospective student seeking an international student visa in reliance upon an offer of enrolment from a TAFE college. Those matters are not in contention.
Mr Aderemi is an Australian citizen of African background from Nigeria who resides in Western Australia.
This proceeding concerns enquiries that Mr Aderemi made with the Respondent on behalf of Mr E, who is from Nigeria. Mr E has not made a complaint and is not a party to this proceeding.
The relationship between Mr Aderemi and Mr E is unclear. Mr Aderemi described Mr E as a 'family member' in his complaint to the Commissioner and elsewhere as an 'associate', 'business prospect' and a 'childhood family friend'. Ultimately the precise nature of the relationship has little bearing on the outcome.

Discrimination on the ground of race

Section 4 of the EO Act defines 'race' as follows:
race includes colour, descent, ethnic or national origin or nationality and the fact that a race may comprise 2 or more distinct races does not prevent it being a race for the purposes of this Act;
Part III of the EO Act concerns discrimination on the ground of race.
Section 46 of the EO Act, which is contained in that part, makes it unlawful to discriminate against a person on the ground of race in the provision of goods and services. With respect to services, unlawful discrimination includes refusing to provide services to a person, discrimination in the terms and conditions upon which the discriminator provides those services, or discrimination in the manner in which those services are provided.
Section 36 of the EO Act provides that a person discriminates (the discriminator) against another person (the aggrieved person) if the discriminator treated the aggrieved person less favourably in the same circumstances (or circumstances that are not materially different) than the discriminator would have treated a person of a different race: see generally, s 36(1) and s 36(1a), EO Act.
The discriminator discriminates against the aggrieved person if they require the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of the same race as the aggrieved person comply (or are able to comply), which is not reasonable in the circumstances, and with which the aggrieved person does not, or is not able to comply: s 36(2), EO Act.

The initial complaint

A person can lodge a complaint, in writing, with the Commissioner on their own behalf, or on behalf of another person or persons, alleging a contravention of the EO Act: s 83(1) and s 83(2), EO Act.
On 1 May 2023, Mr Aderemi, who is an Australian citizen, made a complaint of race discrimination in education against the Respondent to the Commissioner.
In his complaint, Mr Aderemi alleged that on or around 8 March 2023, he had visited the Respondent's office in Perth to enquire about applications he had made on behalf of Mr E to study with the Respondent.
According to Mr Aderemi, Mr E's first application to study a vocational course with the Respondent was denied. Mr E made a second application but received an email from the Respondent telling him that he was required to submit his application through a registered TAFE agent.
When Mr Aderemi attended the Respondent's office to ask about these applications, he alleges that Ms J, a manager for the Respondent, made discriminatory statements about African people to Mr Aderemi.
Mr Aderemi claimed that Ms J referred to Africans as being 'high risk' to Australian society and that Ms J had said that he was 'delusional' to think that he could bring his 'high risk' family members to Australia to study. Mr Aderemi claims that these statements were made over 10 times, and that other people present in the office could hear them.
Mr Aderemi stated that Ms J further informed him that Mr E's application should be made through an agent and that he needed to submit additional documentation in support of Mr E's application.
In his complaint to the Commissioner, Mr Aderemi also claimed that Ms J 'threatened to use her power over me and other Africans by stopping us from accessing education in Australia'.
Mr Aderemi alleged that he had suffered 'emotional trauma' and damage to his reputation which was a 'huge loss' because of Mr E's applications being denied.

The Respondent's response to the complaint

The Respondent denied that this is what was said to Mr Aderemi by Ms J. Their position was that Ms J was attempting to explain the assessment criteria for student visa applications required by the Commonwealth Department of Home Affairs (the Department). The Respondent claims that Mr Aderemi refused to accept the Departmental criteria and claimed he was being discriminated against.
The Respondent explained that before an offer of enrolment can be made to an offshore student, the student must demonstrate they are a Genuine Temporary Entrant (GTE) and that they intend to be in Australia temporarily to gain an education.
The Department assesses GTE for all student visas against an 'evidence level index'. This index ranks offshore applicants from Nigeria as 'high risk' and therefore requires prospective students from Nigeria to meet more stringent criteria and to have a higher level of evidentiary documentation than applicants from countries with a lower evidence level index. I observe that this risk assessment is apparently designed to ensure persons coming to Australia on student visas are genuine students who will comply with the requirements of their visas, including not overstaying their visa.
The Respondent explained that the Department requires all international education providers, including the Respondent, to assess applications from prospective international students against GTE criteria before an offer of enrolment can be made. Thus, the Respondent's admissions process is aligned to the Commonwealth Government requirements for the assessment of international student applications to study onshore in Australia and is part of the assessment as to whether a student visa should be granted.
The Respondent claimed that Mr E's first application did not provide any supporting documentation, and so an offer to study was not made to him. The second application made by Mr E was for a different course, and the Respondent gave Mr E the opportunity to submit additional documents to support his application to attempt to meet the Department's GTE criterion independent of seeking the support of an approved education agent. An education agent was recommended to help Mr E progress his application because the agent would be able to assist him with his application, particularly with respect to compiling the relevant documents and information relevant to the GTE risk assessment.
The Respondent stated that after assessing Mr E's application and all supporting evidence against the assessment criteria, they did not make an offer of enrolment to Mr E. The reasons for declining to make an offer to Mr E included that there was conflicting information in statements he provided for assessment, and blank spaces which had not been completed in his statement of purpose, which the Respondent thought indicated he may not have written it himself.

The Commissioner's investigation

Mr Aderemi's complaint to the Commissioner was initially made on the ground of 'race' and 'racial harassment' in the area of 'education'.
Section 84 of the EO Act provides that after a complaint is made the Commissioner shall investigate it.
During the investigation, the Commissioner sought to clarify aspects of Mr Aderemi's complaint. As a result, Mr Aderemi confirmed that he was the aggrieved person (and not Mr E). He stated that 'I am the aggrieved person here because the discriminatory words were directed at me in public by the TAFE manager'. In a response to the Respondent's reply to his complaint, Mr Aderemi also stated that he was 'the Sponsor and the person who applied for admission'.
Mr Aderemi also withdrew his initial complaint of race discrimination in 'education', changing it to race discrimination in the area of goods and services.
The Commissioner can, at any stage of the investigation, dismiss a complaint on specific grounds, including if the Commissioner is satisfied that the complaint is frivolous, vexatious, misconceived, lacking in substance, or relates to an act that is not unlawful under the EO Act: s 89.
After the investigation, the Commissioner decided to dismiss Mr Aderemi's complaint on the basis that it was misconceived and lacking in substance.
The Commissioner wrote to Mr Aderemi on 18 December 2023 and explained the reasons why the Commissioner had dismissed the complaint. The Commissioner explained:
To establish a complaint of race discrimination you must show that you are an aggrieved person and have been treated less favourably than other persons in the same or similar circumstances, and that the less favourable treatment is due to your race.
The allegation that TAFE rejected your relative's enrolment application on racial grounds is misconceived, as you are not the Applicant, or a registered Education Agent.
The second allegation, is that when you were seeking information about your relative's application, you were offended when a TAFE employee allegedly deemed African applicants as "high risk". TAFE's response stated this comment was made in the context of the Commonwealth Department of Home Affairs visa related assessments which deem offshore Nigerian student applicants aged 30 to 34 as "high risk", and requiring a higher level of evidentiary documentation. This allegation lacks substance as the remark cannot be regarded as 'less favourable treatment' as it is a factual statement.
The correspondence and information submitted in support of these allegations do not substantiate a case of race discrimination as alleged[.]
If the Commissioner dismisses a complaint under s 89, the complainant may, within 21 days after receiving notice of the dismissal, require the Commissioner to refer the complaint to the Tribunal: s 90(1), EO Act.
The Commissioner wrote to Mr Aderemi to advise him that his complaint had been dismissed and advising him that he could request that the allegations could be referred to this Tribunal pursuant to s 90(2) of the EO Act.

Referral to the Tribunal

On 10 January 2024, the Commissioner referred the complaint made by the applicant, Mr Aderemi to the Tribunal under s 90(2) of the EO Act after Mr Aderemi requested him to do so.
The Commissioner provided the Tribunal with a report relating to the investigation with the referral, in accordance with s 90(2) of the EO Act.
Section 107(3) of the EO Act provides that 'the Tribunal shall hold an inquiry into each complaint or matter referred to it by the Commissioner'. The inquiry is part of the Tribunal's original jurisdiction.
After a directions hearing on 19 March 2024 before President Pritchard (as Justice Pritchard then was), a mediation on 13 June 2024 which failed to resolve the complaint, and a directions hearing before me on 23 June 2024, I heard the Respondent's strike out application at an interlocutory hearing on 30 September 2024.

Dismissal/ Strike out

Section 47(1) of the SAT Act specifies the grounds upon which a proceeding in the Tribunal can be dismissed. The relevant subsections, s 47(1) and s 47(2) of the SAT Act, provide:
(1)This section applies if the Tribunal believes that a proceeding —
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)is being used for an improper purpose; or
(c)is otherwise an abuse of process.
(2)If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders.
(3)The Tribunal's powers to act under subsection (2) are exercisable only by a legally qualified member.
(4)The Tribunal may act under subsection (2) on the application of a party or on its own initiative.
In Ellis and Director General of the Department of Transport [2011] WASAT 142 (Ellis) at [63], Deputy President Judge Sharp (as Judge Sharp then was), outlined the Tribunal's powers under s 47 of the SAT Act, with reference to the judgment of Deputy President Pritchard (as Justice Pritchard then was) in Laurent and Commissioner of Police [2009] WASAT 254 (Laurent).
From my reading of the case law, including Ellis and Laurent, the principles relevant to this s 47 dismissal application that I must be mindful of include the following:
(a)The Tribunal does not have formal pleadings because it is not a court of record. The informality of the Tribunal's procedures is set out in s 32(2)(b) of the SAT Act which provides that 'the Tribunal … is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms'. Thus, although the power to dismiss a proceeding at an interlocutory stage is analogous to the power of a court to summarily dismiss a proceeding where the pleadings fail to disclose any reasonable cause of action, caution should be exercised in dismissing a proceeding in the Tribunal before the substantive hearing. That is particularly so when a party is selfrepresented and does not have the benefit of legal representation or training which would enable them to precisely set out their claim in writing.
(b)When considering whether a proceeding should be dismissed, the Tribunal should assume that all the factual assertions made by the applicant would be made out at a final hearing, and consider whether the proceeding is frivolous, vexatious, misconceived or lacking in substance from that perspective. If there are any questions of fact to be determined, or if factual issues may be affected by evidence in possession of a party that has not yet been filed, it may not be appropriate to dismiss the proceeding under s 47 of the SAT Act at an interlocutory stage.
(c)The decision to dismiss should only be made after very careful consideration, and in circumstances where it is evident that the applicant has no reasonable prospect of success in the proceeding. To allow a proceeding to continue when it is evident the applicant has no reasonable prospects of succeeding at a substantive hearing would create a substantial prejudice to the respondent.
In deciding this application, I am mindful of these principles, and I have proceeded on the assumption that all the factual assertions made by Mr Aderemi to the Commissioner would be made out at a final hearing.

The Respondent, in this dismissal application, relies on the grounds set out in s 47(1)(a) and s 47(1)(b) of the SAT Act, namely that the proceeding is frivolous, vexatious, misconceived or lacking in substance or is an abuse of process.

Frivolous, vexatious: s 47(1)(a) SAT Act

In Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213 at [30] - [33], cited by Justice Pritchard in Legal Profession Complaints Committee and Khosa [2019] WASAT 143 (Khosa) at [19], Justice Vaughan said the following about when a proceeding will be 'frivolous' or 'vexatious':
In the context of an application to strike out a claim or pleading the terms 'frivolous' and 'vexatious' have often been used interchangeably. For example, an action is frivolous if it is obviously (or plainly) unsustainable and an abuse of the process of the court. It may for the same reason be categorised as vexatious.
An action is frivolous when it is not worthy of serious consideration, is insupportable in law, discloses no cause of action or is groundless. So too a matter that is without substance or is fanciful is frivolous. The term is apt to describe proceedings in which the plaintiff's claim is so obviously untenable that it cannot possibly succeed or in which there is no serious question to be tried. An action is vexatious if it has no reasonable prospects of success. The term has also been said to be apt to describe an action which is a sham and which cannot possibly succeed.
Apart from the hopeless case - those that are obviously untenable or manifestly groundless - an action may be vexatious due to the motive of the litigant. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought. So too proceedings are vexatious if they are brought for collateral purposes.
A proceeding will also be vexatious if it is productive of serious and unjustified trouble and harassment.
(Footnotes omitted)

Misconceived or lacking in substance: s 47(1)(a) SAT Act

In Laurent, President Pritchard, citing State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 (Rabel), said the following about when a proceeding will be 'misconceived' or 'lacking in substance', at [23]:
… I note that the term 'misconceived' connotes a misunderstanding of legal principle while the term 'lacking in substance' connotes an untenable proposition of law or fact[.]
In Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141 (Ambrus), Deputy President Judge Chaney (as he then was), considered whether a proceeding under the EO Act should be dismissed or struck out on the ground that it was 'either misconceived or lacking in substance'. Judge Chaney, at [8], cited and summarised the test enunciated by Barwick CJ in General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 (General Steel) at 129. In General Steel, Barwick CJ stated, at 129:
The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".
In Ambrus, Deputy President Chaney continued, at [44] to state:
The decision to dismiss an application as lacking in substance is one that should only be taken after very careful consideration of the case and where it is clear that there is no realistic prospect of success of an application[.]

Improper purpose: s 47(1)(b) SAT Act

In Khosa, Justice Pritchard discussed the meaning of 'improper purpose' at [20] - [21]. Relevantly, her Honour also explained that what is improper must be assessed by reference to the statutory context, which in this proceeding is the EO Act and its objects:
Turning to the question of what constitutes an 'improper purpose' for the purpose of s 47(1)(b) of the SAT Act, the meaning of improper, according to the Macquarie Online Dictionary, is 'not proper; not strictly belonging, applicable or right; not in accordance with the propriety of behaviour of manners; and unsuitable or inappropriate as for the purpose or occasion'. The word 'improper' describes the purpose. The improper purpose necessarily applies to the person or body who, by the decision to bring and to prosecute the proceedings, is in a position to use the proceedings for a purpose which is improper.
… What constitutes a purpose which is not proper, or is unsuitable or inappropriate, must, of course, be judged by reference to the statutory context within which the proceedings are brought, namely the enabling act which permits a party to bring proceedings in the Tribunal.

The submissions

The respective positions of the parties could not be further apart.
The Respondent's submissions were summarised at paragraph 24 of its written submissions dated 20 August 2024 as follows:
24.On the allegations made, the Respondent submits that it is not reasonably arguable that:
(a)the Respondent was providing to the Applicant, or being asked by the Applicant to provide to the Applicant, a service within the meaning of section 46 of the EO Act;
(b)the Respondent discriminated against the Applicant on the grounds of race in the terms and conditions upon which a service was provided or in the manner in which it was provided to the Applicant;
(c)the Respondent discriminated against the Applicant on the grounds of race in the manner in which services were provided to the Applicant; and
(d)the Applicant has suffered any damage.
(Underlining in original)
Mr Scott, who appeared for the Respondent at the hearing, explained those submissions in more detail at the dismissal hearing. I shall endeavour to summarise those submissions now.
Mr Scott submitted that:
(a)the Tribunal is created by statute, and as such, it does not have jurisdiction to enquire into any issue or alleged wrong. He submitted that the complaint was an attempt to bring Mr Aderemi's frustration about Mr E's application into the jurisdiction of this Tribunal, and to transform an applicant/decision-maker relationship between Mr E and the Respondent into a services relationship between Mr Aderemi and the Respondent so that Mr Aderemi can argue that the refusal of Mr E's application by the Respondent was discrimination (ts 19 - 20).
(b)Mr Aderemi's application does not fit within the intended sets of circumstances which the EO Act intends to regulate. They submitted that the EO Act has rigid categories and that it is not open to reconstitute 'education' as 'services', as Mr Aderemi sought to do. Further, the Respondent submitted that no 'service' was provided by the Respondent, and alternately, even if it was, it was not provided to Mr Aderemi.
(c)Even if a service was provided, Mr Aderemi has not been able to show a comparator, as required by s 36(1) of the EO Act. That is, Mr Aderemi has not been able to show that he was treated less favourably in the same circumstances than a non-African person who attended the Respondent's office and asked about Mr E's application. Mr Scott submitted that, in accordance with the Tribunal's judgment in JJ and Director General, Department of Communities [2022] WASAT 106 (JJ) at [33] - [34], the identification of a comparator is critical to a discrimination claim.
(d)Mr Aderemi has not suffered any loss, and yet he is seeking $150,000 in compensation, which is approximately 3.75 times the statutory maximum set out in s 127(b)(i) of the EO Act which limits the amount that the Tribunal can award to damages not exceeding $40,000. He has made broad assertions but has not alleged any facts that suggest he has suffered any change of circumstance or loss from the alleged discriminatory conduct.
Mr Aderemi filed written submissions in response to the Respondent's dismissal application. In those submissions, he asked that the Respondent's application be dismissed, and submitted that the Respondent had acted in a manner that had incurred necessary costs, for which he should be compensated.
He submitted that his complaint was genuine and that it should be heard by the Tribunal because it was, prima facie, a case of direct and indirect discrimination against him by the Respondent's staff.
Mr Aderemi's response to the Respondent's written submissions from paragraph 24 of its written submissions (set out above) was the opposite of those submissions. In summary, his position was that:
(a)the Respondent was providing a service to him, or was being asked to provide a service to him within the meaning of s 46 of the EO Act;
(b)the Respondent discriminated against him on the grounds of race in the terms and conditions upon which a service was provided, or the manner in which it was provided to him; and
(c)he had suffered damages and health issues from the Respondent's conduct.
His submissions at the hearing were consistent with these written submissions. He addressed me on s 36 and s 46 of the EO Act and described how he thought his complaint met the requirements of those sections.
Mr Aderemi's submissions about whether a service was provided to him were, overall, somewhat convoluted.
He submitted that the definition of services was 'non-exhaustive' and that he had approached TAFE 'as a potential agent, who wants to form a relationship with the Respondent'. He also referred to sending 'an inquiry letter to the Respondent regarding some of the services I needed the Respondent to provide to me'. He said that he 'approached the Respondent to discuss these services'. Mr Aderemi appeared to be of the view that if Mr E's application was accepted, that he himself could 'apply to become a migration agent in Australia' (ts 47).
In his response to the Respondent's dismissal submissions, Mr Aderemi described himself as being provided with and seeking, 'educational enquiry and admission services' and 'an avenue (admission to study) for the transference of knowledge between African Australians and African technicians'.
Earlier, in his statement of issues, facts and contentions, Mr Aderemi provided a more detailed explanation of why he thought 'services' were provided or requested. He stated:
What services he says that:
(i)The Respondent was providing to him; and/or
The Respondent was providing educational enquiry and admission services to the Applicant when the Applicant approached the Respondents office, with the hope of learning about the organisation and taking up a short course with the organisation whilst then fulfilling the Applicant's dreams of transference of technology between Australian educational organisations and African technicians with whom the Applicant is an advocate and participant of.
(ii)He was asking the respondent to provide;
The Applicant asked the Respondent to provide an avenue (admission to study) for the transference of knowledge between African Australians and African technicians, as the Respondent is a government parastatal, where members of the public can walk into, with big dreams and hope of the ability to fulfil it whilst within the umbrella of such government parastatal.
Mr Aderemi further explained that 'as the Respondent is an educational organisation, they have a duty to members of the society who might be interested in wanting to have anything to do with the Respondent' (ts 48). By way of example, he referred to the Respondent having a hypothetical open day, where members of the public would be invited to attend as being indicative of a service to members of the public (ts 48).
He claimed that the words allegedly stated to him by Ms J amounted to treating him less favourably than a comparator due to his race, as well as being an example of discrimination in the manner in which services were provided to him.
Mr Aderemi further claimed that in making the alleged statements, the Respondent had exercised 'non-delegated powers under the Migration Act' which only case officers working for the Department of Immigration were allowed to use on the internet (ts 39). He stated that if the Tribunal made a decision in his favour, it would 'serve as a deterrent to organisations enforcing non-delegated powers' (ts 41).
He also suggested that requiring Mr E to submit additional documents, which he thought were not relevant to Mr E's admission at TAFE amounted to the imposition of a condition.
Mr Aderemi's view was that if the complaint was not allowed to proceed to a hearing it 'would empower further discriminatory conduct to be directed at people of African background' (ts 41).

Services

As I referred to above, the complaint that was investigated by the Commissioner was a complaint by Mr Aderemi of discrimination in the provision of services pursuant to s 46 of the EO Act.
Consequently, if there were no 'services' being sought by or provided to Mr Aderemi, his complaint could not possibly succeed because 'services' are required for his claim to fit within s 46 of the EO Act.
Thus, whether Mr Aderemi was seeking or being provided services is central to this dismissal application, and so much so, that the dismissal application can be decided on that issue.
'Services' is not exhaustively defined in s 4 of the EO Act. The relevant part of s 4 provides some examples by way of guidance as to where services may be provided:
services includes —
(a)services relating to banking, insurance, superannuation and the provision of grants, loans, credit or finance; and
(b)services relating to entertainment, recreation or refreshment; and
(c)services relating to transport or travel; and
(d)services of the kind provided by members of any profession or trade; and
(e)services of the kind provided by a government (other than the assessment of an application for suitability for adoptive parenthood, or the placement of a child for adoption or with a view to the child's adoption, under the Adoption Act 1994), a government or public authority or a local government body;
This definition is not overly helpful in this case. The reference to 'services of the kind provided by government' in paragraph (e) is the closest to being applicable because the Respondent is an entity established by an Act of the Western Australian Parliament, and the Order. An entity established by an Act of Parliament could, depending on the facts and circumstances of the case, provide services, but what Mr Aderemi is alleging is more specific, and the definition does not shed very much light on whether the Respondent provided the specific services alleged by Mr Aderemi.
What constitutes a 'service' was discussed by the High Court in IW v City of Perth (1997) 191 CLR 1 (IW). IW concerned whether the City of Perth unlawfully discriminated against an association, People Living With Aids (WA) Inc (PLWA), in refusing planning approval for the use of premises as a 'drop-in centre' for persons infected with the Human Immunodeficiency Virus. The allegation was impairment discrimination in the provision of services, contrary to s 66K(1) of the EO Act.
In JJ, Senior Member O'Sullivan discussed IW in detail. The learned Senior Member observed that the ratio of the decision was not readily identifiable because, although IW's appeal was dismissed by a majority of the High Court, there were different views about whether the City of Perth provided a 'service'. However, there was majority consensus that 'services' should be construed broadly, and that because the legislation was beneficial, it should be construed in a manner which promotes the objects or purpose of the EO Act.
Relevantly, s 18 of the Interpretation Act 1984 (WA) (which was also discussed in IW in the joint judgment of Brennan and McHugh JJ at 11 - 12), provides:
Purpose or object of written law, use of in interpretation
In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.
In Ellis, Judge Sharp applied IW to define 'services', at [83]:
The term 'service' as used in the EO Act has its ordinary and broad meaning. Amongst the ordinary meanings of the term are the action of serving, helping or benefiting; conduct tending to the welfare or advantage of another; and an act of helpful activity; see IW v City of Perth 191 CLR 1 at 11, 23, 27, 41, and at 70 (IW).
Relevant to this application, I note the object in s 3(a) of the EO Act is:
to eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status or pregnancy, family responsibility or family status, sexual orientation, race, religious or political conviction, impairment, age, publication of relevant details on the Fines Enforcement Registrar's website or, in certain cases, gender history in the areas of work, accommodation, education, the provision of goods, facilities and services and the activities of clubs …
In considering the meaning of 'services' in this case, I am mindful that 'services' has a broad definition (IW) and that when interpreting 'services' with respect to this application I should favour a construction which is consistent with the object of the EO Act to eliminate discrimination on the ground of race.
Further, in Rainsford v Victoria [2007] FCA 1059 (Rainsford), Sundberg J stated, at [72] that whether something is a 'service' 'is a question of fact determined by the situation of the particular case'.
Rainsford concerned claims made by a prisoner of impairment discrimination in the provision of services. He claimed that he was not given adequate opportunity to stretch and exercise his back when being transported between prisons and prison to court, as well as when he was held in segregation. Sundberg J found that the transport of prisoners and their accommodation in cells was not a service to the prisoner. An appeal against Sundberg J's decision was dismissed: Rainsford v State of Victoria (2008) 167 FCR 26.
Sundberg J, at [73], provided the following guidance as to when there will be a 'service':
Counsel for the State suggested that the touchstone for service should be whether the act involves helpful or beneficial activity: IW 191 CLR at 11 per Brennan CJ and McHugh J. I accept that this is a useful test, but in a qualified way. Most activities are helpful or beneficial to someone. That in itself does not make them services. The question must be whether the act is helpful or beneficial to the relevant class of persons to which the person alleging discrimination belongs.
Relevantly, in Rainsford, at [77], Sundberg J provided the following qualification: 'It is an artificial use of the word service to apply it to a fundamental integer of a system over which those affected have no or almost no control'. An example of such a system in a migration context can be seen in Sumanasekera and The State of Western Australia [2017] WASAT 43 (Sumanasekera).
In Sumanasekera the claimant alleged the State had unlawfully discriminated against him on the ground of impairment (dyslexia) in the provision of goods and services. The State had decided that the complainant did not meet minimum English competency requirements and therefore did not nominate him as part of the nominated skilled migration program (NSMP) for a skilled nomination visa (SNV).
Although there was a benefit to the applicant when the State nominated him because a nomination was required to obtain a SNV, the Tribunal citing IW (referred to as City of Perth) and Rainsford, found that no service was provided by the Respondent. Senior Member Wallace, as her Honour then was, found that, at [25]:
However, as the case law clearly sets out, the conferral of a benefit or advantage in and of itself does not mean that a public function automatically constitutes the provision of a 'service' for the purposes of antidiscrimination legislation (City of Perth). When one looks at the nature and intent of the respondent's role in the NSMP its essential features, in this Tribunal's view, distinguish it from those activities which are intended to be caught by the provisions of the EO Act. Those essential features include the following:
a)Although there can be seen to be a benefit to applicants in the nomination process, the overarching intent is not to benefit any particular person, but rather to benefit Australia and particular States and Territories in the control of migration. The role of the respondent in this regard is not directed to benefitting those applying for nomination, albeit they do receive a benefit if so nominated. The benefit to the applicant is really a biproduct of the process itself rather than its focus;
b)The role performed by the respondent can be categorised as quasilegislative in nature: City of Perth at [15], Brennan CJ & McHugh J;
c)The migration system could not function without the role performed by the respondent and thus, it would be an artificial use of the word 'service' to apply it to a 'fundamental integer of a system over which those affected have no, or almost no, control': Rainsford;
d)It is not in contention that the respondent is not a servant of the applicant;
e)Whether a discretion exists to grant an exception to the eligibility criteria, which is unclear, that does not in and of itself change the characterisation of the role of the respondent; and
f)Essentially the process of nominating persons for SNVs is an inherent governmental function.

In my view, these comments are applicable to Mr Aderemi's situation. Consideration of a potential student position, or providing information about a potential student's application, is part of Australia's migration regime which includes the regulation of student visas. The Respondent was performing a role as a part of that system, and even if some discretion existed within that system in the assessment and process of decision making to ultimately offer a student a place of study, it nevertheless does not alter the characterisation of the role of the Respondent. Thus, instead of providing a service, in assessing and refusing Mr E's applications, and when Ms J made the alleged statements to Mr Aderemi, the Respondent was acting as a fundamental integer of Australia's system of migration. The Respondent was undertaking an inherent governmental function over which those affected, including Mr Aderemi, the Respondent, Mr E, or any other international student applicant, had little or no control (Sumanasekera, Rainford). Therefore, it cannot be said, even on a broad construction of the Act, that there was any 'service' being requested or provided within the meaning of the EO Act.
An analysis of other comparable cases lends further support to this finding.
In the English case of R v Entry Clearance Officer; ex parte Amin [1983] 2 AC 818 (Amin), the applicant was the holder of a United Kingdom passport and was resident in Bombay. She applied to an entry clearance officer for a special voucher to enable her to settle in the United Kingdom. The officer found that she was not eligible for a special voucher because she was not the head of a household, as required by the relevant immigration rules made by the Secretary of State. The applicant alleged that the refusal of the special voucher was discrimination under the Sex Discrimination Act 1975 (UK). The House of Lords dismissed the appeal by a 3:2 majority. Lord Fraser of Tullybelton, at 835, with whom Lord Keith of Kinkel and Lord Brightman agreed, observed that the entry clearance officer was 'not providing a service for would-be immigrants; rather he was performing his duty of controlling them'. That is, instead of providing a service to a potential immigrant, the officer was undertaking an immigration control duty. A similar observation could be made about the Respondent in this case. In assessing Mr E's applications, and in communicating with Mr Aderemi about Mr E's applications including requesting further documents, the Respondent was also undertaking a duty as part of Australia's immigration regime with respect to student visas.
In Ellis, the applicant had applied for the transfer of an interstate driver's licence to Western Australia. The applicant was required to produce further medical evidence to the Department of Transport concerning his fitness to drive because he had disclosed that he had muscular dystrophy. Judge Sharp found, at [86] - [87], that:
Some government functions are undoubtedly services, but not all are. In considering a driver's licence application and being satisfied of a driver's fitness to drive, the respondent undertakes an inherently governmental function, underpinned by key concerns of road safety and public welfare, that cannot be undertaken by private individuals; see Hollis v Department of Justice [2004] WAEOT 14 (Hollis) at [31] - [32].
In this case, the Tribunal considers that respondent's exercise of discretion to require further evidence of an applicant's fitness to drive before granting a C class driver's licence cannot be described as a service. It is 'the end product of a deliberative process'; see IW at 17. The respondent is an adjudicator, not a servant of the applicant; see IW at 18.
These comments apply to the Respondent's role in this case. Like Ellis, this case concerned the assessment of an application against statutory criteria which is an inherently governmental function. In this case, the Respondent requested further information in support of Mr E's second application, but that does not of itself indicate a service. It was required to assess the criteria imposed by the Department as part of the decision-making process.
Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770 (Robinson), concerned claims of disability discrimination in the provision of services made under s 24 of the Disability Discrimination Act 1992 (Cth). Yates J found that when an authorised officer of the police force was considering whether to exercise discretion to grant or refuse bail, did not involve the provision of a service. Yates J stated, at [180], that: 'The granting of bail is not so much the provision by a government authority of services to accused persons, but the exercise of government authority'. This case illustrates that although something may be beneficial (the grant of bail or the grant of a student visa and associated enrolment), it may nevertheless not be a service, but an act done as part of the exercise of government authority.
Overall, these authorities lend support to a finding that when the Respondent was considering and making a decision on Mr E's applications, or providing information to Mr Aderemi about Mr E's application, they were not providing a service, but rather were performing an inherent governmental function under Australia's migration regime with respect to student visas in accordance with statutory criteria imposed on them by the Department (Sumanasekera, Rainford, Ellis and Robinson). The Respondent's request for additional information to assess Mr E's second application was done as part of the exercise of that duty as part of the deliberative process required by the Department (Robinson, IW). It is not indicative of a service.
As I outlined above, as well as alleging that the Respondent was providing educational admission services and educational enquiry services, Mr Aderemi also alleged that he was asking the Respondent to provide 'an avenue (admission to study) for the transference of knowledge between African Australians and African technicians'. The exact meaning of the submission is, at first glance, difficult to comprehend. It appears to be a reference to Mr Aderemi wanting the Respondent to provide vocational education to African students because he perceived this would have a public benefit. If that was the submission, Mr Aderemi was not requesting that the Respondent provide him with anything. In other words, an activity that has a public benefit is not a service to Mr Aderemi, and as such he lacks standing to make a complaint. I discuss the issue of standing in further detail in the next section.
At the hearing the submission concerning 'the transference of knowledge between African Australians and African technicians' was clarified by Mr Aderemi. After clarification from Mr Aderemi, I understood the submission to be that Mr Aderemi wanted to form a business relationship with the Respondent to pursue becoming a migration agent to facilitate African students gaining a vocational education in Australia. That is apparent from the following excerpt from the transcript of the hearing (ts 41):
The applicant's intention was to form a relationship with the respondent through the inquiry the applicant made on behalf of himself and Mr E, which was a free service to Mr E and others. And when this relationship has been formed, the applicants [sic] could then apply to become a migration agent in Australia. The applicant seeks damages for the denial of service to the applicant, and for the discriminatory words used in the manner of – in the manner in which the respondent provided services to the applicant[.]
Further, later in the hearing, Mr Aderemi stated (ts 44):
I, as an Australian citizen, with desire to form a relationship with TAFE, the desire is to be an agent with TAFE, and that - that opportunity was denied. I had no issue with University of Western Australia. I was in the process of getting all that is needed and is required to becoming an agent, and as part of that process was my relationship – the relationship I intend to form with TAFE International - and then all of a sudden, we are here, arguing about their conduct.
The issue of services was generally before the Commissioner, and in his submissions to the Commissioner, Mr Aderemi referred to enquiring about Mr E's applications, and Mr E's enrolments being denied after the provision of further information and documents, and a suggestion that he seek the support of an approved education agent to progress Mr E's application. Consequently, the question of educational admission services and educational enquiry services was before the Commissioner.
However, the submission concerning Mr Aderemi's apparent request to form a relationship with the Respondent so he could become a migration agent to facilitate African students gaining an education in Australia raises a new issue that was not before the Commissioner. In Summerville and Department of Education & Ors [2006] WASAT 174, the President of the Tribunal at that time, Justice Barker, observed at [11], that due to the operation of s 107(3) of the EO Act, 'it is clear that the Tribunal only has jurisdiction to deal with the issues raised in the complaint determined by the Commissioner and no others'. Thus, to the extent that Mr Aderemi is raising a new issue, it is beyond my jurisdiction to consider it.
Even if I were able to consider this revised submission as being a potential service, Mr Aderemi's aspiration to form a business relationship with the Respondent appears to be based on a misapprehension as to the regulatory and statutory requirements that migration agents are subject to. At the hearing, Mr Aderemi described himself as a 'sponsor' and said he was offering to assist potential students with accommodation in Australia (ts 47). In an email to an officer of the Commissioner dated 27 August 2023, Mr Aderemi stated, 'I am the sponsor for Mr E, hence the reason I can be regarded as his agent because I am required to submit some private documents for his visa and admission application'. However, migration agents must be registered, and a person cannot provide immigration assistance if they are not a registered migration agent.
Specifically, s 280 of the Migration Act 1958 (Cth) (Migration Act) provides that only a person who is a registered migration agent can give immigration assistance. 'Immigration assistance' is broadly defined in s 276 of the Migration Act and can include preparing or helping to prepare a visa application or a document indicating that the person nominates or sponsors a visa applicant (s 276(1)(a) and s 276(2)(a) of the Migration Act). In addition, s 281 of the Migration Act makes it unlawful for a person who is not a registered migration agent to receive a fee or other reward.
I am not satisfied that the Respondent could lawfully form any sort of relationship with Mr Aderemi as a migration agent unless he was properly qualified and registered. Mr Aderemi is not a registered migration agent. He confirmed at the hearing that he was a law student studying a juris doctor degree and that it was his aspiration to become a migration agent.
I do not think that a request to enter into a business relationship or agreement could be characterised as requesting a service. Even if it could be, it was not a service that the Respondent could lawfully provide to Mr Aderemi because he was not a registered migration agent. It would be against public policy for me to make a finding against the Respondent on that basis. Indeed, an activity cannot, in my view, constitute a service for the purpose of the EO Act if it is unlawful or involves an unlawful activity.
For the reasons set out above, I am satisfied, and I find, that no service was provided, or requested to be provided, by the Respondent to Mr Aderemi. Therefore, his complaint does not fit within the ambit of s 46 of the EO Act.

Standing

Mr Aderemi only has standing to make a complaint if he was the person discriminated against: IW. That is reflected in the wording of s 36, which describes the circumstances in which an 'aggrieved person' will be discriminated against on the ground of their race.
As was explained by Gummow J in IW: 'The Act is concerned with the provision of services to the person who complains of discrimination and seeks the remedies for which it provides'.
The Respondent submitted in the alternative, that if services were provided, they were provided to Mr E, and not to Mr Aderemi. Relying on IW, the Respondent submitted that Mr Aderemi was in a more remote position than the complainant in IW. I agree.
In a joint judgment in IW, Dawson and Gaudron JJ confirmed, at 25, that:
It is clear from the structure of the Act generally and, also, from the structure of Pt IVA, that an "aggrieved person" is a person who is discriminated against in a manner which the Act renders unlawful. And when regard is had to the precise terms of s 66K(1), it is clear that the person discriminated against is the person who is refused services, or who is provided with services on terms or conditions or in a manner that is discriminatory. As already indicated, there was no refusal of services in this case. And if anyone was the recipient of treatment which might constitute discrimination, it was PLWA, not the appellant. Accordingly, the appellant was not an "aggrieved person" within the meaning of that expression in s 66A(1) of the Act. And that being so, he is in no position to assert that the City of Perth engaged in unlawful discrimination in the exercise of its discretion to grant or withhold planning approval for PLWA's drop-in centre.
In my view, these comments apply to Mr Aderemi. He was not an aggrieved person because he was not a person who was refused services. If anyone was aggrieved, it was Mr E and not Mr Aderemi.
Put differently, as I outlined above, services often involve a helpful or beneficial activity. However, in this case, no benefit or help was provided to Mr Aderemi. He was not the person applying for a course of study. He was not a registered TAFE agent. He was not a migration agent acting on behalf of Mr E.
It is arguable that Mr Aderemi was providing, or attempting to provide, immigration assistance to Mr E when he was not entitled or authorised to do so, but that is not a question that I need to determine here. Fortunately, he confirmed that he was not charging for assisting Mr E, which would have been a further contravention of the Migration Act. The point is that Mr Aderemi was not acting on behalf of Mr E in any legal capacity, for example, as a migration agent or an approved education agent. The fact that Mr Aderemi had informally taken it upon himself to enquire on behalf of Mr E does not alter the fact that Mr Aderemi was essentially a stranger to the enquiry. In short, if any service was provided, it was not provided to Mr Aderemi.
I am satisfied, and I find, that Mr Aderemi was not an aggrieved person within the meaning of s 36 of the EO Act, and therefore he lacks standing to bring the complaint.

Conclusion

In conclusion, I have found that:
(a)no service was provided, or requested to be provided, by the Respondent to Mr Aderemi. Therefore, his complaint does not fit within the ambit of a 46 of the EO Act; and
(b)Mr Aderemi is not an 'aggrieved person', as required by s 36 of the EO Act, because even if a service was provided, it was not provided to him. He therefore does not have standing.
I am therefore satisfied that it is unnecessary to consider the other submissions made by the Respondent in support of the application being dismissed.
The following comments from Deputy President Chaney (later Justice Chaney) concerning the applicant in Ambrus at [44] - [45] apply to this application:
… I am conscious of Mr Ambrus' well-motivated desire to right what he perceives as wrongs. And one would be tempted to simply let him have his day in court, as it were, or day in the Tribunal, to air those grievances at least so that they can be fully ventilated and any witnesses that Mr Ambrus wants to be called can be heard.
But there are two sides to these proceedings and one has to work fairness to both sides. There is no doubt that to permit these proceedings to continue on the broad-ranging allegations that are made would create a very substantial prejudice to the respondent. And in view of the conclusion that I've reached as to the prospect of success of the proceedings the temptation to let Mr Ambrus have his day in the Tribunal simply has to be resisted.
I note that the learned Deputy President's comments were cited by the Tribunal more recently in Efficient Building Team Pty Ltd and Perth Recruitment Services Pty Ltd [2023] WASAT 37 at [33].
I am conscious of the fact that Mr Aderemi is self-represented and that he is anxious that the proceeding should be permitted to go to a final hearing. I have proceeded on the assumption that all the factual assertions made by Mr Aderemi would be made out at a final hearing. However, for the reasons set out above, I have nevertheless concluded that he has no reasonable prospects of succeeding at a substantive hearing because there was no service, and because he is not an aggrieved person. It would therefore not be fair or appropriate to allow the matter to proceed to a hearing where the Respondent would be put to the expense of contesting a proceeding that should not be permitted to proceed.
As no service has been provided by the Respondent to Mr Aderemi, and because he lacks standing, I am satisfied, and I find, that the proceeding falls within the ambit of s 47(1)(a) of the SAT Act. It is 'frivolous' because it is 'insupportable in law', and vexatious because 'it has no reasonable prospects of success' (Khosa). It is also misconceived or lacking in substance because the proceeding is based on a 'misunderstanding of a legal principle', proceeds on the basis of 'an untenable proposition of law' (Laurent, Rabel) and 'there is no realistic prospect of success of the application' (Ambrus, General Steel).
I would add that if Mr Aderemi has brought this proceeding in order to facilitate a relationship with the Respondent in order to become a migration agent, or as a kind of retribution to the Respondent for the perceived slight of rejecting Mr E's applications and therefore a potential business relationship, that, in my view, would constitute an improper purpose within the meaning of s 47(1)(b) of the SAT Act. That is because that purpose would be 'unsuitable or inappropriate' (Khosa) in the statutory context of the EO Act and its objects. However, given the lack of clarity of that submission, and appreciating that Mr Aderemi is unrepresented, in fairness to him, I will give him the benefit of any ambiguity and will not make a finding that the proceeding was brought for an improper purpose.
In conclusion, I am satisfied, and I find, that because s 47(1)(a) of the SAT Act applies, the proceeding should be dismissed pursuant to s 47(2) of the SAT Act on the ground that it is frivolous, vexatious, misconceived or lacking in substance.
The Respondent made written submissions and oral submissions at the interlocutory hearing regarding costs. Mr Aderemi did not make written submissions of any substance on the issue of costs prior to that hearing. I also indicated at the interlocutory hearing that I did not wish to decide costs until I had decided the dismissal application.
Consequently, I will hear from the parties regarding the programming orders I should make regarding further submissions for a hearing on costs and to facilitate that hearing.

Orders

The Tribunal orders:
1.The Respondent's application under s 47(2) of the State Administrative Tribunal Act 2004 (WA) is upheld.
2.Proceeding EOA 2 of 2024 is dismissed pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) on the ground that it is frivolous, vexatious, misconceived or lacking in substance.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR M EVANS-BONNER, SENIOR MEMBER
12 DECEMBER 2024