IN THE MATTER OF 'CARL'

[2003] NSWSC 756

CITATION:	IN THE MATTER OF 'CARL' [2003] NSWSC 756
HEARING DATE(S):	6/5/03, 27/5/03, 10/6/03, 8/7/03, 15/7/03, 24/7/03
JUDGMENT DATE:	24 July 2003
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J at 1
DECISION:	Summons dismissed
CATCHWORDS:	Administrative Law - judicial review - decision made by the Minister for Education and Training - entry into a selective high school refused because plaintiff not an Australian or New Zealand citizen or a permanent resident of Australia - whether Minister and Department blindly applied the residence requirement without regard to special circumstances - whether an exception was available - whether residence requirement was contrary to s34(5) of the Education Act 1990 as racially discriminatory
LEGISLATION CITED:	Anti-Discrimination Act 1977 s34(5) Education Act 1990 International Convention on the Elimination of All Forms of Racial Discrimination (1969) Race Discrimination Act 1975 (Cth), Anti-Discrimination Act 1977 (NSW) Sex Discrimination Act 1984 (Cth)
CASES CITED:	Quark Technologies v Workcover Australia [1997] SASC 6376 Rendell v Release on Licence Board (1987) 10 NSWLR 499
PARTIES :	'Carl' (Plaintiff) Minister for Education (Defendant)
FILE NUMBER(S):	SC 30042/03
COUNSEL:	P Singleton (Plaintiff) M Leeming (Defendant)
SOLICITORS:	K Cull, Legal Aid Commission of NSW (Plaintiff) Anina Johnson (Crown Solicitor's Office)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

ADAMS J

THURSDAY 24 JULY 2003

30042/03 RE: CARL

JUDGMENT

1 HIS HONOUR: The plaintiff is, by all accounts, a very intelligent young man who is seeking entry into a selective high school. He would be offered such a position but for the fact that he is not an Australian or New Zealand citizen or a permanent resident of Australia (“the residence requirement”). The plaintiff seeks judicial review of the Minister’s decision to refuse entry into a selective high school upon the ground that the Minister blindly or inflexibly applied the residence requirement in his case and that, at all events, the residence requirement was contrary to s34(5) of the Education Act 1990 (the Act), it being argued, in substance, that the plaintiff was refused admission because of his race.

2 It is not controversial that, in administering the Act, wide scope is given both to the Minister and the Department to specify the criteria for entry of children with special abilities into selective secondary schools and the way in which those criteria are to be applied. There are some twenty-seven selective or partially selective high schools in New South Wales. There are many more applicants than there are positions. Indeed, about 80% of candidates fail to obtain a place. In addition to a requirement relating to academic merit, the residence requirement is also imposed. Omitting irrelevant matters, the latter requirement is in the following form –

“Students must be Australian citizens or holders of a visa granting permanent resident status in Australia.
Citizens of New Zealand may be enrolled but permanent residents of New Zealand may not.
If you do not meet these residency requirements at the time of applying but you expect you will meet them in the near future, your child will be allowed to take the Selective High Schools Test. You will have to show evidence that you do meet the requirements before being offered a place. Places will not be held for students who do not satisfy residency requirements.
All successful applicants will be required to show original documentation such as birth certificates or relevant visas as proof of residency before enrolment can be finalised by the school.
SELECTION COMMITTEES
A selection committee for each selective high school will meet to choose students using the “Criteria for Entry [including the residence requirement]”.
APPEALS
You can appeal against the decision of the selection committee if you feel there were special factors which might have prevented the student from gaining higher school or test marks or if there were other factors which might not have been considered by the selection committee.”

3 The Department has published guidelines for schools concerning the enrolment of permanent residents and temporary visa holders. In substance, that document repeats the criteria to which I have referred and specifically provides that “students holding temporary visas are not eligible to enrol in…selective high schools”. The plaintiff’s bridging visa is a temporary visa. The guidelines do not advert to the possibility that the residence requirement will be applied otherwise than strictly. The reason for the requirement is essentially based upon the consideration that demand for places in selective high schools is so great that preference is given to persons whose residence is permanent, to avoid the risk that a student on a temporary visa will only partially complete the six year programme and thus deprive another student of the opportunity fully to participate in it. It was not submitted on behalf of the plaintiff that this was not a reasonable consideration justifying the requirement.

4 The plaintiff and his family arrived in Australia in 1995 and, shortly thereafter, applied for visas that would confer permanent residence status. The plaintiff’s application was rejected by the delegate of the appropriate Commonwealth Minister in 1996. Since then he has been involved in continuous litigation. His application to the relevant Tribunal was rejected in late 1998 but that decision was set aside on administrative law grounds in the second half of 1999; the Minister’s appeal against that decision was dismissed by the Full Court about a year later. The Tribunal again considered the plaintiff’s application on the merits and again rejected it in the first half of 2001. An appeal by the plaintiff to the High Court of Australia was dismissed six months later. Almost a year later fresh proceedings were commenced in the High Court, purportedly on different grounds, seeking to set aside the second decision of the Tribunal. During this period, the plaintiff’s lawful entitlement to reside in Australia has derived from bridging visas granted from time to time pending determination of the application for a visa that would confer permanent residence status. The latest application has not been set down for hearing. Whether judgement will be given immediately or not is unknown. It is therefore not possible to predict with reasonable certainty when the proceedings will be completed and, thus, whether the plaintiff will be able to obtain permanent residence and when he will know one way or another.

5 The application for a position in a selective high school was made by the plaintiff’s tutor (his mother) in April 2002. In that application, the tutor asserted that the student was an Australian citizen or permanent resident of Australia. It is obvious from what I have already said that this was inaccurate. (However, I mention this only as a relevant fact and have drawn no adverse inferences against the plaintiff or the tutor for this inaccuracy.) The application apparently fulfilled the relevant criteria for placement in a selective high school and, in September 2002, a place was offered at an appropriate school. Late in 2002, the plaintiff’s tutor wrote to Mr Wingrave, the leader of the Selective School Unit at the Department referring to discussions which had occurred a few days earlier, in substance, about the plaintiff’s residency status. Mr Wingrave had agreed to put the plaintiff’s place on hold pending what was described as “a decision in this case”, I take it a decision to be made by the Department in light of the fact that the plaintiff had only a bridging visa. Three days later the tutor wrote to the then Minister for Education and Training asking, in effect, the Minister not to apply the residence requirement in the plaintiff’s case. In that letter the plaintiff’s tutor gave a brief history of the family’s connections with Australia and acknowledged that evidence of the plaintiff’s permanent residency could not be produced since that had “yet to be finalised”. The plaintiff’s tutor requested that her son “be allowed to continue his studies in the selective school, although there may be some time before formal evidence of his permanent status in Australia could be produced”. Although the letter did not directly say so – indeed, it asserted that the plaintiff “has a visa that gives him full study rights in Australia” – it is clear enough that the delay in the production of evidence of permanent residency merely reflected the fact that he did not have permanent residence. Nor, of course, does the visa, as such, confer any study rights. The letter argued that the residence requirement should be applied with a degree of flexibility according to the individual circumstances. A number of matters were asserted which, it was argued, should lead the Minister to qualify the strict applicability of the requirement in the plaintiff’s case. The tutor asserted that the likelihood of her son being required to leave Australia “is extremely slim”, and pointed to some factors which were said to justify that assertion. The tutor submitted that her son’s “best interest should be the primary consideration” and that an inflexible approach should not in any circumstances “undermine the best interest of that child whose outstanding performance in school represents an asset to this country”. The tutor added that she was seeking a “compassionate consideration” of her son’s circumstances. About two weeks later, Ms McKerihan, the Director of Student Assessment and School Accountability, wrote to the plaintiff’s parents rejecting their application. The substance of the decision is stated as follows –

“After careful consideration and review of the above application I regret to advise that it appears your child does not satisfy the residency requirements and is therefore ineligible for placement in a selective high school. If you disagree with this determination in relation to permanent resident status, please provide me with a copy of the relevant immigration documents. A position…is currently on hold and will be continue to be on hold until 31 January 2003.
Following that time, if permanent residency is granted before the end of June 2003, you should contact the Selective Schools Unit so that your child’s name may be placed on the reserve list.”

6 On the following day, the plaintiff’s tutor wrote again to Ms McKerihan asserting, amongst other things, that the decision which she had communicated on the plaintiff’s application “blindly applied the Department’s policy re permanent residency requirements and did not address any of the issues I had raised (such as the need for flexibility in policy and protection of the child’s best interest)”. So far as Ms McKerihan’s letter was concerned, it is quite true that it did not address any of the issues raised by the plaintiff’s tutor. The plaintiff submitted again that “above all, a child’s best interest should be the primary consideration of all Departmental staff”. In this respect, I make the perhaps obvious point that the Department must consider the interests of all the children for whose education it is responsible. Ms McKerihan’s uncontested evidence, in this respect, was that the risk that the plaintiff might not be able to complete the full six-year term of study meant that another student, who otherwise would have gained a place, was also prevented from completing a full term of special education. The plaintiff’s tutor submitted, further, that the only relevant criterion for placement in a selective school is the academic merit of the child in question and that any other criteria, such as permanent residency, conflicts with the scope and objects of the Act and is therefore invalid.

7 The tutor claimed that the decision made by Ms McKerihan was “unfair, heartless and discriminatory [and] in conflict with the aims of the Education system” and asserted that she “did not look at my son’s particular circumstances, nor at the trauma he may suffer as a result of a negative decision, or at his innocence and needs”. No evidence of the nature of possible “trauma” was produced and this claim could reasonably have been treated with considerable scepticism. The tutor’s letter sought an urgent consideration of her son’s situation. On the same day, the Marrickville Legal Centre, which was assisting the plaintiff’s parents in relation to the matter, provided further submissions supporting the application. Those submissions argued that there were “strong grounds for an exception to be made” and specified a number of factual matters which had been put to the Department previously, in one form or another. An extensive legal argument was also submitted analysing the provisions of the Act and the policy of the Department, implicitly asserting that the residence requirement was “blindly applied” and arguing that it was necessary that the Minister should give individual consideration to the merits of the plaintiff’s claim for enrolment at the selective high school.

8 On 23 December 2002 Ms McKerihan replied to this correspondence, saying that she had “carefully read and noted the information contained” in it. Ms McKerihan referred once more to the criteria for entry (set out above) and repeated –

“Students must be Australian citizens or holders of a visa granting permanent resident status in Australia to be eligible for enrolment in a selective high school. It appears that your child does not satisfy these residency requirements.”

9 It is obvious that this letter did not do more than implicitly address the reasons said to justify an exception in the plaintiff’s case. Indeed, it did not even acknowledge that it was possible that an exception might in some circumstances be made. This bland bureaucratic response was, to my mind, quite inappropriate in light of the personal sensitivities inevitably involved in a controversy of this kind. It seems to me that Ms McKerihan should have informed the tutor whether it was possible that an exception might be made to the policy, what the circumstances were in which such an exception might be made and explain why (even if briefly) no exception would be made in the plaintiff’s case. If no exception capable of being applied to the plaintiff’s case was available, then Ms McKerihan, I think, should have frankly said so. Ms McKerihan noted that the tutor had written to the Minister on the issue and informed her that the Minister would respond. Something over two weeks later the tutor wrote again to the Minister, setting out a brief chronology of the correspondence, noting that the Minister had not written to her and said that she had been told by one of the Minister’s staff “that there is no record of a decision having been made to date”. The tutor urged that early consideration of the matter should be given and threatened legal action in the event of a negative decision or further delay. Ten days later, the Minister wrote to the tutor repeating the residence requirement and blandly stating that her son was therefore “currently ineligible for selective high school placement”. Again, I think that the refusal to deal with the arguments made on behalf of the plaintiff that there could be an exception to the requirement and such an exception should permit him to be placed, was inappropriate. This letter had been drafted by Ms McKerihan for the Minister’s signature in accordance with a submission dealing with the issues in the case. That submission referred to the chronology of events and the criteria for placement in a selective high school. It pointed out that in 2002 “the Selective Schools Unit sent thirty letters advising students who do not have permanent residence status that they are ineligible for placement in a selective high school”. The submission did not advert to the possibility that there might be an exception to the rule nor, for that matter, did it seek to justify the rule or explain why no exception should be permitted. The submission pointed out, so far as the tutor’s prediction of success in the plaintiff’s application for permanent residence was concerned, that no relevant immigration documents had been provided despite numerous requests and despite an undertaking by the solicitor from the Marrickville Community Legal Centre acting on behalf of the plaintiff’s parents to provide a statement in support of their immigration case. It is only in this Court that the explanation for the policy to which I have referred was forthcoming. No attempt was made by the Department’s counsel to explain or justify this delay. Ms McKerihan noted in the submission that, although some politicians had supported the family’s immigration application, the family had been seeking permanent residence for seven years and that no details of the nature of the immigration dispute had been provided. The submission noted that the plaintiff’s parents had indicated in a meeting with Mr Wingrave that the student’s residence status was complex and currently the subject of a legal case and requested, initially, that the residence rules be waived for their child as he had siblings who are permanent residents and he has lived in Australia for most of his life. Although these matters were mentioned, as it seems to me, as matters of history, they were directed, I think, to the question whether there was any evidence that it was likely that permanent residence would be granted, although this issue was not explicitly referred to and not explicitly resolved.

10 Ms McKerihan conceded (although reluctantly, I thought) that the Department’s assessment of the plaintiff’s likelihood of securing permanent residence in Australia was that there was no information indicating that this would be granted in the near future, with the consequence that it was not possible to guarantee that he would be able to remain in the selective school until completion of studies in year 12. Ms McKerihan said that by “guarantee”, she meant a reasonable likelihood that the applicant would be able to remain in the school for the period. The precise meaning of the phrase “reasonable likelihood” was not elucidated but I think that Ms McKerihan meant something close to certainty. I think it fair to note, however (which is at all events obvious from what I have set out above) that a conclusion in these terms was not adverted to in the submission to the Minister nor, for that matter, in the letters to the tutor. Ms McKerihan accepted that the tutor had presented information in an attempt to show that a grant of permanent residence was likely.

11 It seems to me that, in all fairness, the tutor should have been informed that the Department would be prepared to consider any material which would justify the conclusion that there was a reasonable likelihood (in the sense mentioned) that the plaintiff would obtain permanent residence in the near future and give her clearly to understand that mere assurances were insufficient. Of course, it may then have become necessary to reconsider what had happened in the cases of the other students who had been refused placement on the ground that they did not satisfy the residence requirement.

12 As I have said, it was reasonable that the Department should require a prospective student to satisfy the permanent residence criterion. Indeed, the plaintiff’s counsel, Mr Singleton, did not submit that the criterion was unreasonable. Truly understood, the criterion is not so much that of permanent residence but rather a requirement that students not be at risk of being unable to complete the course of selective education because they may have to leave the country before doing so. In the end, a student is either subject to such a risk or not. The only area for flexibility is that to which I have already adverted, namely that it might be appropriate to make an exception where the immigration status of the student will (or be very likely to) be determined in the student’s favour in the near term and, of course, before the student commences high school, that is to say, that the risk was so slight that it is appropriate to grant a place despite it. So considered, I do not see how the rule is incompatible with the responsibilities conferred by the Act on the Minister and the Department, nor do they usurp any appropriate discretion or substitute administrative convenience for individualised decision (see Rendell v Release on Licence Board (1987) 10 NSWLR 499 at 503-504). The principle (usefully summarised in Quark Technologies v Workcover Australia [1997] SASC 6376) that “an authority invested with a discretionary power must exercise that power according to the merits of the particular case and not inflexibly apply policy to cases coming before it irrespective of the merits” will vary in its effect and application according to the context in which the discretion is to be exercised. Here, although the residence requirement is, in a sense, inflexible it seems to me to be well within the Minister’s discretionary responsibilities to impose it as a criterion for placement in a selective school. Nor is it reasonable to require that the Department should attempt to determine the student’s right to permanent residence, let alone second-guess the outcome of immigration proceedings, which is a notoriously difficult task in a specialised, complex factual and legal field, although there may be cases where a decision in favour of an application for permanent residence is almost certain or, perhaps, where the decision has in substance been made but merely formal requirements remain to be satisfied. On the material thus far disclosed to me, the plaintiff is not in a position to show to any degree of relevant certainty that his application is likely to succeed. By “application” I mean not only the application in the High Court but, if he should succeed there, his fresh application for permanent residence. Moreover, when it is likely to be considered is a matter of almost compete speculation.

13 It is submitted, in addition, that the Minister took into account adversely to the plaintiff the fact that his mother had wrongly stated in the application form that he had permanent residence status and that this was an irrelevant consideration. Although this is mentioned in the submission, I do not agree that it was put forward as a reason for rejecting the application. It was merely stated as a matter of history to explain why the plaintiff had been offered a year 7 place.

14 It remains to consider, under this head, the significance of my finding that it was inappropriate of the Department not to have informed the plaintiff that an exception might have been made if the plaintiff had been able to show a reasonable likelihood (in the sense referred to above) that permanent residence would be granted in the short term or at all. Since I have formed view on the material before me that it would not have been possible at all events for the plaintiff to have been able to satisfy this condition, the granting of relief to enable him to do so now would appear to be futile: as I have mentioned, no date has been set for hearing the application in the High Court of Australia and it is clear that there can be no reasonable assurance that it will be likely to be heard by the time at which it is necessary to finalise placements for the next year, let alone that judgment will be given by that time; nor, of course, that judgment is likely to be in the plaintiff’s favour; nor that any subsequent application for permanent residence is likely to succeed.

15 I now move to the second limb of the plaintiff’s case, which depends upon the application of s34(5) of the Act, which is in the following form –

“A child is not to be refused admission to a Government school because of the child’s race or religion.”

16 On the face of it, it is difficult to see how the residence requirement depends upon race. The plaintiff submits, in substance, it implicitly does so. It seems to be obvious that neither explicitly nor implicitly, is a requirement that a person be an Australian or New Zealand citizen a requirement containing an element of race. Nor is it a requirement relating to national origin since it is clear that both Australian and New Zealand citizens have a very wide range of national origins. It is worth noting, I think, that it is agreed between the parties that New Zealand citizens are entitled to a visa permitting them to remain in Australia for such time as they remain New Zealand citizens, for reasons which it is not necessary to discuss. Although such citizens are entitled to remain in Australia, they are not automatically “permanent residents of Australia”, nor does their New Zealand citizenship entitle them, without more, to become permanent residents of Australia. It is obvious, therefore, why the category of New Zealand citizens is included with Australian citizens and other persons holding permanent residency: they all fall into a class where they are (for one reason or another) entitled to remain in Australia and, hence, able to continue their selective education to completion.

17 The plaintiff submits that, given the purpose of the Act, the term “race” should be given the most beneficial possible construction. I accept this submission. Any form of racial discrimination, whether blatant or subtle, whether explicit or implicit and whether in form or effect, is prohibited and rightly prohibited. The plaintiff, in particular, refers to the jurisprudence that has been developed in connection with the Race Discrimination Act 1975 (Cth), the Anti-Discrimination Act 1977 (NSW) and the Sex Discrimination Act 1984 (Cth) dealing with indirect discrimination. This form of discrimination arises when an apparently innocent distinction (or test or criterion) has the effect of discriminating on the ground of race. It is also submitted that one type of race discrimination is discrimination on the ground of national origin and the plaintiff points to the definitions of “race” in the Anti-Discrimination Act 1977) as including “colour, nationality, descent and ethnic, ethno-religious or national origin) and Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination (1969) (racial discrimination means “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin….”.

18 The plaintiff argues that the defendant and the Department have discriminated against the plaintiff in the criteria by making a distinction between the citizens of New Zealand on the one hand and the citizens of other foreign nations on the other, giving preferential treatment to the former group. Even accepting (which I do not) that discrimination on the ground of citizenship is an implicit discrimination on the ground of race, this argument cannot succeed in light of the concession as to the rights of New Zealand citizens to residence in Australia. The criterion, in substance, does not depend upon citizenship at all but upon residence. It is obviously inappropriate to refer to an Australian citizen as having permanent residence, which has a particular meaning under the laws relating to immigration.

19 The second way in which the plaintiff submits that discrimination arises here is the distinction drawn between people whose national origin is either Australia or New Zealand, on the one hand, and people whose national origin is otherwise. Even accepting that such a distinction is relevant, I do not think it is made. There is no reference in the criteria to national origin and the reference to citizenship cannot be a reference to national origin, even though it may be that a person might qualify for citizenship because of their national origin. Nor is national origin an implicit element of citizenship. It is argued that the Department imposes “a triple-faceted criterion” which is more easily satisfied by people of Australian and New Zealand national origin than it can be by people of other national origins. This is an attempt to turn a citizenship qualification into a racial one. Upon this basis any limits on granting citizenship would be racial discrimination, since it would always be easier (so the argument goes) for a person of Australian national origin to be or be granted Australian citizenship. This argument must fail.

20 Accordingly, the plaintiff has failed to establish an entitlement to the relief sought and the summons is dismissed with costs.

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Last Modified: 08/27/2003