Ex Parte

[1984] FCA 76

' 7G

(Hespon i rn t )

HIS HONOUR: Ir! t h i s a p p i l c a t i o n i n respect of ~X-,;iilch Mr.

L i t t l e . a p p e a r i n a f o r rhe applicants. as ~ ~ s c a l . h s s

explored every posslble avenu? t o suppac t t?.t case , 1

t h i n k the i n e v i t a b l e r e s u i t 1 s thzt the appllcatlm

fok- t h e order n l s i f o r a w r i t cf mandamls murt ?.E

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r e fused .

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and Elys Frances Norman f o r writs of r,mxda.m.Js auhsnst Poland Pacrlck Hasseli and Desmond Patthew Tehm ar.d Stanley McLsish Harrls. Deputv Fresident anc me!rbers

of a Repatristlon Review Tribunal, (WA G 1 5 and 16 of

1984, unreported) I am satisfled that notwlthstandlnq that the events with which the clalm f o r mandakus are

concerned occurred a considerable txse before 2 3

December 1993 at whlch date the Iucisdlction conferred

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on this court by section 39B of the Julciarv Act- 1903

became es?rcisable, there 1s jurlsdictlon to ucant the

order nisl soucht In thls case lf the crounds f o r

makina such En order exist.

The application is put primar1l:r on tke arcund that

the officer aqainst vhon the writ of mandamus 1 s

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soucrht refused to allow the applicants access to

Australia, as a place, b:J reason of the3-r race,

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natlonality o r ethnlc origln contrary to s.11 of the

Racial Discrirnlnatlon Act 1975 (the Act). Such

refusai was constituted by the refusal to issue to the

applicants visas to travel to F.usr;ral,a and It is said

by MC. Little that the efiect of chat conduct was to

unlawfully refuse to allow the applicants accecs to

Australia, Auutralla belnq wlthln tile meanincr of the

espresslon "any place" In sectlon ll(a) of the Act.

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it is aruued by Dr. Jessur, tnat s.11 of the Act has no

reference to the conduct of the officer concerned

which is complalned of in this case. He suq?ests that ths section has no reference to thE vansactlon which

was Involved in an lmmlgration offlcer nakinu

assessments or otherwise ezerclsina dlscretion

concernincr an appllcatlon for a vlsa to Austr,-.lla by a

I person or persons in a place outsl.c?e Australia. I

think thls 1 s correcc. I thmk ~ t , 1 s cocrecc for the

reason that to treat Australia as any place within the	.
meaninq of s.ll(a) of the Act is incongruous. For the expression "any place" In the section of the .\ct to be

read the way Mr. Little subnits one would have to

substicute for the words "anv plece". "Australia or

any place in Australia". There is certainlp no

3ustlficatlon for such	a substltutlon.
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it is perfectly clew that places of llinited area In

Australia fall withln the meaning of "any place" In

s.ll(a). One merelv has to look at the words in the

section of the Act which follow, that 1 s . "any place

o r vehlcle that members of the publlc are ... entitled

or allowed to use . . ." , to mdlcate thls. Reisrence

CO the International ConvenCion on the Elmination of

All Form of Pacial Discriminatlon (the Convention)

upon which the Act is based indicates that the places

In contemplation are ch? places to which. in

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Australia. the publlc ordlnaril:J have recourse. such

as transport, hocels, restaurants, cafes, theatres and

parks: see article 5 ( f ) of the conventlon".

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It is said by Mr. Little that if one looks at the score sheet which was complled in accoraance with

prevailing aaministratlve procedures used lr.

assessment hg the officer aoalnst whom complaint is

made. one can see that the scwe of the felr:tle

applicant for a vlsa was mhrked down on racial

qrounds. The speclflc entry ~ L h c h 1 s said to support

this vlew IS an entry	in	paraqraph	12 of	the
assessment score sheer;.

The entry relates to the adaptablllt? of the

applicant. Karks are to be awarded: 6 , If the

assessment of adaptablllGy 1 s that the applicant

should adapt readllv o r quick1-J: 4. if there are no

forseeable difficulties: 1, Some mlnor adaptation problems likely; and 0 if substantial aaaptatlon problems are llkely.

The female applicant 111 t h ~ s case was awmded one mark

under tne headlnq of adapmbility. The reason qiven

v7as, "doubtful if spous? would make much effort to

adapt, and would remaln in ethnic community". It is

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said. that the ~nevir;able Inference 1 s that -,he l o x mark for adaptability was alven because the lady was Chlnese.

To my mind, this does not follow at all. The question

inevitably related to a lady who was Chinese, how

would she adapt? She did not aet low marks becauss

she was Chlnese but'because belncr Chinese. she was

assessed as the kind of person clho mlqht not easlly

inteqrak or adapt to Bu-jtralian condltions and

society, and would remaln In her ethnlc commun1r;y.

To my m m d , the mark reflected not chat the lady wzs Chinese but rather, was an assessment of' her personal qualities. That the officer was not being racmlly

dlscrimlnatlns is demonstrated by the corre3pondlnuly

high mark ulven to her husband, a Chlnese man, about

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his abllitg to auapt. Mr. Llttle referred to a number

of other aspects of the scorins of the marks. but in

my opinion they are all non-slqniflcant.

I n addition, It is apparent that the total score of the female applicant was so low thsr; even li she had been awacrled full marks f o r adaptabllltp she would not

have reached the lowest	pass mark relevant to the
issue of a visz.

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The i s s u e of an o r d e r n i s i f o r a w r l t of nendbaus 15,

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l of c o u r s e , d i s c r e t i o n a r y . Delz:? 1 s r e l e v a n t and t h e r e

had b e e n a r e a t d e l a y . Mr. L i r t l e has a r q u z d t h a t t h e

d e l a g !.7as caused by lqr?orance of r lghts , n3mely that

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t h e a l l e a e d c o n t r a v e n t i o n of p r c v l s i o n s of t h e A c t

c n l y became known a shor t t ime aqo as a r e s u l t 0.F t h e

p r o v i s i o n s of t h e F_reedom of Informst lon A-& 1 9 R ~ .

That may be so , b u t on t h e o t h e r hand ccnd l t lone

r e l x a n t t h e t o I s s u e of a vlsa have chanqrd

c o n s i d e r a h l p s i n c e t h e d a t e of t h e application f3r th?

visas. I t h i n k that 11; would be d l f f l c u l t t o I s sue zn

order n i s i f o r 2 wrlt of mxdamus i n m e w of t h e d e l a y

and tha t chanse of c o n d i t l o n s . Delay i s , however. 2r

minor issue because che other matters winch I have

rncntioned seem t o me t o be fa ta l . Rccordlnalg I

d i s m i s s t h e a p p l i c a t i c n f o r a n o r d e r n i s l f o r c h e

i s s u e of a w r i t of mandanus and I d l s c h a r q e t h e

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in iunc t ion wh ich was a ran red . aqa lns t he Mln i s t e r In

the a p p l i c a t i o n In t h l s case under the A d m i n l s t r a t s

Decisions	( J u d i c i a l	R e n e w )	Act	1 9 7 7	( J u d l c i s l	R e v l e u
Act 1 .

I o r d e r t h e applicants t o psty th? r e s p o n d e n t ' s c o s t s

of the a p p l l c a t l o n f o r t h e mandanus. I order a l s o

that t h e Mlnlster have such costs as i n r e i n c u r r e d 3y

him in r s l a t i o n t o t h e a p p l l c a t l o n u n d e r t h e J u d l c ~ a l

Review Act which I d i s m s s .

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