FEDERAL CIRCUIT COURT OF AUSTRALIA
JIN v THE UNIVERSITY OF QUEENSLAND	[2015] FCCA 2982	

Catchwords: 
HUMAN RIGHTS – Racial discrimination – whether University admission rules indirectly discriminatory – whether s.13 of the Racial Discrimination Act 1975 extends to indirect discrimination.

PRACTICE AND PROCEDURE – Whether applicant has no reasonable prospect of successfully prosecuting the proceeding.	

Legislation:
Acts Interpretation Act 1901, s.15AA
Federal Court of Australia Act 1976, s.31A
Federal Circuit Court of Australia  Act 1999, s.17A
Federal Circuit Court Rules 2001, rr.13.10(a), 13.07(1)(b)(ii)
Racial Discrimination Act 1975, ss.5(a), 9(1), 9(1A), 11, 12, 13, 13(b), 14, 15	

Australian Medical Council v Wilson (1996) 68 FCR 46
Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105
Elmaraazey v University of NSW [1996] HREOCA 17
George v Fletcher (Trustee) [2010] FCAFC 53
Griggs v Duke Power Company 410 US 424 (1971)
Macedonian Teachers Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8
Lina Obieta v New South Wales Department of Education and Training [2007] FCA 86
Repatriation Commission v Hawkins (1993) 117 ALR 225
Secretary, Department of Social Security v Cooper (1990) 26 FCR 13
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Toben v Jones (2003) 129 FCR 515
Tracy v Repatriation Commission [2000] FCA 779
Waters v Public Transport Corporation (1991) 173 CLR 349	

Applicant:	Shuting Jin	

Respondent:	The University Of Queensland	

File Number:	BRG 740 of 2013	

Judgment of:	Judge Jarrett	

Hearing date:	4 February, 2014	

Date of Last Submission:	4 February, 2014	

Delivered at:	Brisbane	

Delivered on:	5 November 2015	

REPRESENTATION
Representative for the Applicant:	Dr Ivan Kassal appearing pursuant to s.46PQ(1)(c) of the Australian Human Rights Commission Act 1986 (Cth) 	

Counsel for the Respondent:	Mr Pincus	

Solicitors for the Respondent:	Bartley Cohen	

ORDERS
(1)	The application filed on 23 August, 2013 be dismissed pursuant to r.13.10(1)(a) of the Federal Circuit Court Rules 2001.
(2)	The parties file any further submissions as to costs in accordance with these reasons by 4.00pm on 7 December, 2015.
(3)	The question of costs be otherwise reserved.
(1)	
FEDERAL CIRCUIT COURT 
OF AUSTRALIA 
AT Brisbane	
BRG 740 of 2013
Shuting Jin	
Applicant

And

The University Of Queensland	
Respondent

REASONS FOR JUDGMENT
1.	By this interlocutory application filed on 29 November, 2013, the respondent asks that pursuant to r.13.10 of the Federal Circuit Court Rules 2001, these proceedings be dismissed summarily and that the applicant pay the respondent’s costs of and incidental to the proceedings and the application for summary dismissal.
2.	Summary dismissal is opposed by the applicant.  In the event that her application is not summarily dismissed, she asks the Court to make a maximum costs order limiting the costs that might be recovered by a successful party against the other.
3.	The principal proceedings arise out of the respondent’s refusal to admit the applicant to study a Bachelor of Veterinary Science degree in 2012. The respondent’s refusal was in accordance with its admission rules, but the applicant claims that the admission rules operate in a discriminatory way in breach of s.13(b) of the Racial Discrimination Act 1975.  In the principal proceedings she claims:
a)	a declaration that the respondent has contravened the Racial Discrimination Act when it refused her application for admission;
b)	an order that the respondent cease contravening the Racial Discrimination Act;
c)	an order that the respondent bring its admission rules into line with the Racial Discrimination Act;
d)	special damages of $104,576.96 plus interest;
e)	general damages of $15,000 for hurt, humiliation and distress; and
f)	disbursements properly incurred.
Background
4.	Ms Jin is a citizen of the United States of America. She arrived in Australia on 25 April, 2011 and became a permanent resident on 10 October, 2011.  She holds a Bachelor of Science in Biological Sciences with Honours from Stanford University that was awarded in 2007. She subsequently, in 2009 and 2010, completed additional biology courses at Harvard University.
5.	In 2011, Ms Jin applied for admission to the University’s Bachelor of Veterinary Science program.  She hoped to commence in the 2012 academic year.
6.	The University maintains rules relating to the admission of candidates for the educational programs that it offers.  At the time of Ms Jin’s application the rules were contained in a document entitled Admission Rules for Undergraduate Programs 2011.  For the purposes of those admission rules:
a)	Ms Jin was a domestic applicant for admission purposes;
b)	to allot places in the Bachelor of Veterinary Science cohort, the University was required to calculate each applicant’s rank based on that applicant’s previous academic performance; 
c)	for the 2012 intake, a rank of 99 (the highest possible rank) was necessary for admission to the Bachelor of Veterinary Science cohort; and
d)	the University assigned Ms Jin a rank of less than 99 and she was not enrolled in the 2012 Bachelor of Veterinary Science cohort.
7.	For applicants like Ms Jin with at least one year of tertiary study, the Admission Rules required the University to calculate the applicant’s rank based on several provisions in schedule 2 of the Admission Rules. According to those rules an applicant shall be allotted the highest rank calculated under the various provisions that apply to that applicant.  The provisions relevant to Ms Jin’s claim are:
a)	the rule contained in the Admissions Rules, sch.2, ss.1 and 2 which is referred to in the pleadings in this case as the GPA Rule; and
b)	the rule contained in the Admissions Rules, sch.2, ss.6(1)(c) and 6(2) which is referred to in the pleadings in this case as the Honours Rule.
8.	The GPA Rule provides a means by which an applicant’s grade point average is converted to a rank for the purpose of the Admission Rules.  The rank derived from the grade point average is also determined by reference to the institution at which the applicant obtained that grade point average.  The Admission Rules refer to eight named Australian universities as the Group of Eight institutions.  Applicants who attained their grade point average at a Group of Eight institution generally received a higher rank than an applicant with the same grade point average but who did not attend a Group of Eight institution.
9.	To obtain a rank of 99 and be admitted to the 2012 Bachelor of Veterinary Science cohort, an applicant must have obtained a grade point average of at least 5.80 from a Group of Eight institution, or at least 6.50 from any other university.  Because Ms Jin’s grade point average was less than 6.49 and was not from a Group of Eight institution, the University assigned her a rank of less than 99 and refused her admission to the 2012 Bachelor of Veterinary Science cohort.
10.	Relevantly, the Honours Rule provides that:
	An applicant is to be allocated a rank of 99 if they have obtained a ... bachelor’s degree with class I or IIA honours ....
	An applicant who has obtained a ... bachelor’s degree with class IIB honours is to be allocated a rank of 97.
11.	Ms Jin points out that honours are not awarded in a consistent fashion at universities around the world.  Australian universities award honours in a way very similar to the British-style class system, whereby honours are awarded according to various classes (class I, IIA, IIB, or III).  According to Ms Jin’s argument, similar systems are followed in many Commonwealth countries.  However, honours awards without a class are the norm in the United States, Canada, and some other nations, where honours degrees may be distinguished with a grade point average or percentage.
12.	If an applicant has an honours degree awarded without a class, the Admission Rules require the University to disregard the Honours Rule and calculate the rank as if the degree were a non-honours bachelor’s degree.
13.	Ms Jin holds a degree with honours awarded without a class and consequently her rank was calculated as if her honours degree was a non-honours bachelor’s degree.  She argues however, that had the University assessed the quality of her honours degree, it would have found it to be at least equivalent to class IIA honours, meriting a rank of 99 and admission to the Bachelor of Veterinary Science cohort.  This is because, she argues:
a)	she completed an honours program that requires a higher grade point average than class IIA honours at the University.  At the time of her graduation, honours in biological sciences at Stanford required a grade point average of 3 out of 4 in the courses contributing to honours, or in its Australian equivalent a grade point average of 6/7.  At the University in 2011, class IIA honours required a lower grade point average of 5.8 out of 7 in the courses contributing to honours.; and
b)	Ms Jin undertook more courses at Stanford than were required for honours at the University.  The University generally requires 4 years of full-time attendance for an honours degree, whereas Ms Jin completed an equivalent of more than 5 years;
c)	Ms Jin’s contributions to research exceed what is required for honours at The University of Queensland.  Her research spanned two years, compared to one year usually required at the University.  She was an author on an article in Nature Neuroscience, one of the most prestigious journals in neuroscience; and
d)	The fraction of Stanford degrees awarded with honours is substantially smaller than the fraction of degrees awarded with class I or IIA honours at many other universities, indicating that Stanford honours are more challenging to achieve.
14.	Ms Jin claims that the GPA Rule is discriminatory because:
a)	immigrants are substantially less likely than non-immigrant Australians to be able to comply with the conditions required for admission to the Bachelor of Veterinary Science program under the GPA Rule.  Among those with some tertiary education, non-immigrant Australians are substantially more likely to have attended the Group of Eight institutions than immigrants; 
b)	the GPA rule has the effect of impairing the exercise by immigrants, on an equal footing, of the right to education and training;
c)	the GPA rule is not rationally connected to the selection of the best candidates.  It gives a preference to those educated in Australia (at a Group of Eight institution) over those educated abroad, even if, in some cases, those educated abroad received a higher grade point average from a more highly ranked university;
d)	There are less discriminatory alternatives available for assessing grade point averages, including those adopted by some other members of the Group of Eight institutions; and
e)	the grade point average rule is not reasonable having regard to the circumstances of Ms Jin’s case. 
15.	She claims that the Honours Rule is discriminatory because:
a)	immigrants are substantially less likely than non-immigrant Australians to be able to comply with the condition, required for admission to the Bachelor of Veterinary Science program under the Honours rule, of having had their honours degree awarded in a class.  Consequently, immigrants with honours degrees seeking enrolment are substantially more likely to be required to meet the additional requirement of satisfying the GPA Rule;
b)	the Honours Rule has the effect of impairing the exercise by immigrants, on an equal footing, of the right to education and training;
c)	The Honours Rule is not rationally connected to the selection of the best candidates.  It sometimes gives a preference to those educated in Australia (or elsewhere in the Commonwealth) over those who distinguished themselves equally or more highly elsewhere.  Class IIA honours from the lowest-ranked university in the Commonwealth would be preferred to the highest honours awarded at the highest ranked institutions in the United States, Canada, and several other nations; and
d)	There are less discriminatory alternatives available to assessing honours degrees, including the Respondent’s own rules of admission to postgraduate programs.  Admission to the PhD program requires class IIA honours, but the rules allow the Dean to assess whether a foreign qualification is equivalent to class IIA honours.
16.	Despite an appeal, Ms Jin was refused admission to the 2012 Bachelor of Veterinary Science cohort.  She was advised to enrol in the Bachelor of Applied Science program, complete a full year of that program and if she received a grade point average of 5.8 out of 7 she would receive a rank of 99 in the 2013 Bachelor of Veterinary Science intake.  
17.	Ms Jin followed that advice and completed a year of the Bachelor of Applied Science program with a grade point average of 6.875 out of 7.  In 2012 she was admitted to the 2013 Bachelor of Veterinary Science cohort. 
18.	Ms Jin claims that the University breached the Racial Discrimination Act in assessing her application for admission to the 2012 Bachelor of Veterinary Science cohort.  She claims that if her application had been evaluated in a non-discriminatory way and not in contravention of the Racial Discrimination Act, she would have been admitted on her first attempt, ultimately graduating a year earlier and not incurring losses by reason of her year in the Bachelor of Applied Science program.
Summary dismissal
19.	Section 17A of the Federal Circuit Court of Australia Act 1999, which is in the same terms as s.31A of the Federal Court of Australia Act 1976 provides for the Court to deal summarily with applications in appropriate cases.  Relevantly, s.17A of the Federal Circuit Court Act is in the following terms:
	17A  Summary judgment
	(1)  The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
	(a)  the first party is prosecuting the proceeding or that part of the proceeding; and
	(b)  the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
	(2)  The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
	(a)  the first party is defending the proceeding or that part of the proceeding; and
	(b)  the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
	(3)  For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
	(a)  hopeless; or
	(b)  bound to fail;
	for it to have no reasonable prospect of success.
	(4)  This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.
20.	 Relevantly, rule 13.10(a) of the FCCR states:
	Disposal by summary dismissal 
	 The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that: 
	 (a)    the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim.
21.	The approach taken in cases dealing with s.31A of the Federal Court of Australia Act 1976 are generally seen as apposite in cases dealing with s.17A of the Federal Circuit Court Act: George v Fletcher (Trustee) [2010] FCAFC 53 at [75] and [105].
22.	The words of s.31A mean what they say and there is little point in attempting to formulate other phrases to encapsulate their meaning: Spencer v Commonwealth of Australia (2010) 241 CLR 118, per Hayne, Crennan, Kiefel and Bell JJ at [58] – [59].  The Court must embark upon a “practical judgment…as to whether the applicant has more than a ‘fanciful’ prospect of success”: per French CJ and Gummow J at [25].  What is required by the section is set out by the Hayne, Crennan, Kiefel and Bell JJ as follows at [60]:
	… The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.
Consideration
23.	Ms Jin submits that her case is fairly arguable and has good prospects of success.  She grounds her claim squarely in s.13(b) of the Racial Discrimination Act.  In her statement of claim (drawn without legal assistance) she pleads that :
	52. In the premises, the Respondent breached s 13(b) of the RDA, read in conjunction with s 5(a), because
	a.  it supplies the service of a BVSc education to the public or to any section of the public, and
	b. it refused on demand to supply that service to the Applicant,
	c. except if the Applicant ‘upgraded’ her previous qualifications, which is a less favourable term or condition than not having to ‘upgrade’, and
	d. it did so by reason that the Applicant is an immigrant, because
	i.	 it imposed on the Applicant a term or condition (the Admission Rules),
	ii.	that was not reasonable having regard to the circumstances of the case, 
	iii.	that the Applicant did not or could not comply with, and
	iv. that has the effect of impairing the recognition, enjoyment, or exercise, on an equal footing, by persons who are immigrants, of the right to education and training.
24.	By s.5(a) of the Act, s.13 has an extended operation.  At the relevant time, those sections were in the following terms:
	5  Additional operation of Act
	Without prejudice to its effect apart from this section, this Act also has, by force of this section, the effect it would have if:
	 (a)  there were added at the end of sections 11 and 13 the words “or by reason that that other person or any relative or associate of that other person is or has been an immigrant”;
	…
	13  Provision of goods and services
	It is unlawful for a person who supplies goods or services to the public or to any section of the public:
	(a)  to refuse or fail on demand to supply those goods or services to another person; or
	(b)  to refuse or fail on demand to supply those goods or services to another person except on less favourable terms or conditions than those upon or subject to which he or she would otherwise supply those goods or services;
	by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person.
25.	Ms Jin’s pleaded case is that:
a)	the provision of the Bachelor of Veterinary Science program is the provision of an education or training service;
b)	by the application of the GPA Rule and the Honours Rule the University has refused, on demand, to supply those services to her except on less favourable terms or conditions than those upon or subject to which it would otherwise supply those services; and
c)	that refusal has been by reason that Ms Jin is, or has been, has been an immigrant.
26.	For this application, the University accepts that the Bachelor of Veterinary Science program is a service for the purposes of s.13 of the Act.  It also accepts that Ms Jin is an immigrant for the purposes of s.13 of the Act.
27.	The parties agree that s.13 of the Racial Discrimination Act operates to make unlawful, acts of direct discrimination.  However, Ms Jin’s case is not one of direct discrimination.  She does not assert that the University’s application of either the GPA Rule or the Honours Rule directly discriminates against her on the grounds of race, colour, national or ethnic origin or because she is or has been an immigrant.  She does not allege, and it cannot be the case, that the University admission rules have a directly unlawful discriminatory effect for any of those reasons.
28.	Her case is that the University’s application of the GPA Rule and the Honours Rule indirectly discriminate against her – they have a discriminatory effect by reason of her being or having been an immigrant and being unable to comply with the requirements of the GPA rule or the Honours rule.  Both parties submit that for Ms Jin’s case to have any reasonable prospects of success, I must conclude that s.13 of the Act applies so as to make unlawful indirect discrimination in connection with the provision of goods or services.
29.	Ms Jin argues that s.13 avails her in this case because:
a)	s.13, in conjunction with ss.5(a) and 9(lA), prohibits indirect discrimination against immigrants, and
b)	in the alternative, s.13 prohibits indirect discrimination against immigrants even if it is read only in conjunction with s.5(a).
Sections 5(a), 9(1A) and 13
30.	In Waters v Public Transport Corporation (1991) 173 CLR 349 at 392 Dawson and Toohey JJ, explained the distinction between direct and indirect discrimination:
	Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such “equal” treatment is that the former is in fact treated less favourably than the latter. … Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable.
31.	There is authority for the proposition that the Racial Discrimination Act draws a distinction between direct and indirect discrimination.  The principal sections upon which attention has been focused in those cases are ss.9(1) and 9(1A) of that Act.  In 2011 those subsections were in the following terms:
	9  Racial discrimination to be unlawful
	(1)  It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
	(1A)  Where:
	(a)  a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and
	(b)  the other person does not or cannot comply with the term, condition or requirement; and
	(c)  the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;
	the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.
	(2)  A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.
	(3)  This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia.
	(4)  The succeeding provisions of this Part do not limit the generality of this section.
32.	Section 9(1) is generally taken to deal with direct discrimination whereas s.9(1A) is taken to deal with indirect discrimination.  In Australian Medical Council v Wilson (1996) 68 FCR 46, the Full Court of the Federal Court of Australia determined that the concepts of direct and indirect discrimination expressed in ss.9(1) and 9(1A) of the Act are mutually exclusive.  After setting out and analysing the legislative history of s.9(1A) Heerey J, (with whom Black CJ agreed) said, at p.55:
	The origin of Australian statutory provisions targeting indirect discrimination has given rise to some divergent views as to the relationship between prohibitions of direct discrimination (like RDA s 9(1)) and indirect discrimination (like RDA s 9(1A)). Are the latter merely “epexegetical to, or explanatory of” direct discrimination prohibitions, merely “spelling out the reach, though not necessarily the whole of the reach” of provisions such as s 9(1)? That was the view of Mason CJ and Gaudron J in Waters v Public Transport Corp (1991) 173 CLR 349 at 357-9 ; 103 ALR 513. Subject to a qualification not presently relevant, Deane J (at CLR 382) agreed with the judgment of Mason CJ and Gaudron JJ. However, in Banovic Brennan J (at CLR 170-1) and Dawson J (at CLR 184) treated direct and indirect discrimination provisions as mutually exclusive. Also in Banovic (at CLR 175) Deane and Gaudron JJ said that the presence of an indirect discrimination provision in the statute there under consideration (Anti-Discrimination Act 1977 (NSW)):
	takes much of the force from any argument that [the direct discrimination provision] should be given a broad application similar to that accorded to provisions in the Civil Rights Act 1964 (US) and the Canadian Human Rights Act 1976-1977 prohibiting discrimination “because of” sex, race or other characteristic thereby made the subject of unlawful discrimination.
	To return to Waters, McHugh J (at CLR 400-2) expressed a strong preference for the mutual exclusivity approach and the opinion of Dawson and Toohey JJ (at CLR 392-3) was to the same effect. Subsequently the Full Court of this court in Commonwealth v Human Rights and Equal Opportunity Commission (Dopking’s case) (1995) 133 ALR 629 proceeded, at least implicitly, on that basis.
	In my respectful opinion, the mutual exclusivity construction should be applied in the present case to s 9(1) and (1A) of the RDA. Such an approach is consistent with the language of the provisions, their legislative history and the preponderance of authority.
33.	Whilst the concepts of direct and indirect discrimination are mutually exclusive, as between ss.9(1) and 9(1A) it is only s.9(1) which declares conduct unlawful.  The effect of s.9(1A) is to extend the operation of relevant sections in Part II of the Act by treating conduct which meets the requirements of s.9(1A) as an act involving a distinction for the purposes of Part II of the Act, or, an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.
34.	The phrase involving a distinction appears only in s.9(1) and no other section in Part II of the Act.  However, the phrase by reason of appears in each of ss.11 – 15 of the Act and so, s.9(1A) is capable of extending the operation of those sections.  That is to say, acts of indirect discrimination as defined by s.9(1A) might, in appropriate circumstances, lead to the conclusion that s.13 of the Act has been breached.
35.	Thus, to the extent that Ms Jin argues that the combined effect of s.13 and s.9(1A) of the Act is that acts of indirect discrimination (ie., conduct within s.9(1A)) might contravene s.13 of the Act, I accept her argument.  However, her case relies upon discrimination on the basis of her immigrant status, not her race, colour, descent or national or ethnic origin.  Accordingly, the combined effect of ss.9(1A) and 13 must extend to cover her immigration status if this aspect of her case is to succeed.
36.	Ms Jin argues that the extension of the terms of s.13 effected by s.5(a) of the Act to immigrants means that, in conjunction with s.9(1A) of the Act, s.13 prohibits indirect discrimination against immigrants.  In the written submissions filed on her behalf, she argues:
	3. Both ss 9(1A) and 5(a) extend the reach of s 13. However, these two extensions could operate in several different ways.
	4. Respondent’s submission is essentially that there is a choice: either one extends s 13 using s 9(1A) to include indirect discrimination on the basis of race, or one extends it using s 5(a) to include (direct) discrimination on the basis of immigrant status.
	5. However, there is nothing preventing the application of both ss 9(1A) and 5(a). If s 9(1A) is applied first, s 13 becomes:
	It is forbidden to do certain things that indirectly discriminate on the basis of race.
	Then, s 5(a) adds “or immigrant status” to the end:
	It is forbidden to do certain things that indirectly discriminate on the basis of race or immigrant status.
	It is this last interpretation that the Applicant is advocating. 
37.	Ms Jin argues that such a construction is:
a)	consistent with the accepted approach to the construction of remedial legislation that demands that human rights legislation should be interpreted beneficially and liberally “so as to give the fullest relief which the fair meaning of its language will allow.”;
b)	 not unreasonable or unnatural but is clearly purposive, in line with s.15AA of the Acts Interpretation Act 1901: the purpose of s 9(1A) being to clarify that s.13 prohibits indirect discrimination, while the purpose of s 5(a) is to extend the protections of s 13 (including against indirect discrimination) to immigrants; and
c)	consistent with the established principle that “a provision ‘intended to operate by way of extension of the benefits’ conferred by remedial legislation . .. should be construed generously”: Tracy v Repatriation Commission [2000] FCA 779, [13]; Repatriation Commission v Hawkins (1993) 117 ALR 225, and in accordance with the “obvious intent” of the provision: Secretary, Department of Social Security v Cooper (1990) 26 FCR 13, 18.
38.	However, in my view, the construction for which Ms Jin contends is not open on the text of the relevant sections.  The hurdle for her argument is that s.9(1A) serves to supply the necessary relationship between the impugned conduct and its discriminatory quality in the circumstances defined by s.9(1A) only.  Section 9(1A) only operates in the circumstances defined by ss.9(1A)(a), 9(1A)(b) and 9(1A)(c).  Amongst other matters, the impugned conduct must have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of the rights or fundamental freedoms specified in s.9(1A)(c).   Subsection 9(1A)(c) is not extended by s.5(a) in the way s.13 is extended.
39.	Once the prescribed circumstances exist, s.9(1A) operates to stamp the impugned conduct as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.  Again, the extension provided for by s.5(a) does not operate so as to permit the impugned conduct to be treated as involving a distinction, or to have occurred by reason of race, colour, descent or national or ethnic origin or by reason that that other person or any relative or associate of that other person is or has been an immigrant.
40.	Moreover, s.9(1A) does not operate so as to alter the text or meaning of s.13 to say, as Ms Jin contends: “It is forbidden to do certain things that indirectly discriminate on the basis of race”.  Subsection 9(1A) works to provide that, in certain circumstances, a requirement to comply with a term or condition will be an act done by reason of a person’s race, colour, descent or national or ethnic origin.  It does no more.
41.	Put another way, whilst indirect discrimination might attract the operation of s.13 of the Act, it will only be in respect of conduct that is expressly caught by s.9(1A) and which, by the operation of s.9(1A) is to be treated in the way provided for in that subsection.
42.	Accordingly, to the extent that Ms Jin argues that the combined effect of ss.5(a), 9(1A) and 13 of the Act is to render unlawful indirect discriminatory conduct based upon her immigration status alone, I am satisfied that her case has no reasonable prospect of successfully prosecuting her proceedings.
Sections 5(a) and 13 alone
43.	Alternatively, Ms Jin contends that s.13 prohibits indirect discrimination by its very terms and its operation is attracted in this case with the assistance of the extension afforded by s.5(a) of the Act.
44.	Ms Jin directs my attention to the remarks of Commissioner Basten QC (as his Honour then was) in Elmaraazey v University of NSW [1996] HREOCA 17.  In that case, speaking of s.9(1A) of the Act which was introduced in 1990, the Commissioner said:
	Although the purpose of the drafter was apparently to include “indirect” discrimination within the compass of the Act, or least to clarify that the Act had such an extended reach, nevertheless, the specific provisions in ss.11-15 were not so extended. In my view, on the basis of the authority of [Griggs v Duke Power Company 410 US 424 (1971)], s.13 should be read to include requirements which, although neutral in their own terms, have a discriminatory impact.
45.	Ms Jin argues that the Commissioner’s remarks have relevance here because it is an express recognition that s.13 of the Act covers acts of indirect discrimination.
46.	However, on the same day that Elmaraazey v University of NSW (above) was delivered, so too was the judgment in Australian Medical Council v Wilson (above).  As I have indicated above, the Full Court of the Federal Court of Australia favoured an approach which meant that the broad scope of the words found in s.9(1) of the Act were not so broad as to extend to indirect discrimination.  Despite its consideration of Griggs v Duke Power Company 410 US 424 (1971), the Full Court determined that s.9(1) is confined to direct discrimination.  Subsection 9(1A) deals with indirect discrimination.
47.	The approach of the Full Court in Wilson to the proper interpretation of ss.9(1) and 9(1A) is inconsistent with the approach to s.13 in Elmaraazey v University of NSW (above).  Section 13 of the Act contains no counterpart to s.9(1A) of the Act.  Wilson binds me, Elmaraazey does not.  To the extent that Ms Jin’s case relies upon Elmaraazey I decline to follow it.
48.	However, in the context of s.13 of the Act, the use of labels such as “direct discrimination” or “indirect discrimination” has the potential to distract from the text of the section itself.  
49.	Ms Jin can make out her case if she can establish that the University’s offending conduct occurred by reason that Ms Jin is or has been an immigrant.
50.	The phrase by reason of is a common phrase found in many statutes.  In my view there is no substantive difference between the phrase by reason of (as used in s.13) and by reason that (as imported by s.5(a)).
51.	As to the expressions “by reason of” or “because of” Kiefel J said in Creek v Cairns Post Pty Ltd [2001] FCA 1007:
	19		There have been differences of view expressed about the meaning of phrases such as “on the ground of” and “by reason of” in the context of discrimination legislation, and as to whether they require a causal connexion between the act complained of and the characteristic or attribute of the person identified in the legislation, which is to say the reason for the conduct. In some judgments it has been held that it does not matter if intention or motive are absent. This was the view expressed by Deane and Gaudron J in Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165, 176. Their Honours were dealing with provisions of the Anti-Discrimination Act 1977 (NSW)(s 24(1) and s 24(3)) which are similar to s 9 and s 9(1A) RDA. Section 24(1) provided that a person discriminated against another if, “on the ground of his sex”, or “a characteristic that appertains generally to” or “is generally imputed to persons of his sex, he treats him less favourably than in the same circumstance, or circumstances which are not materially different, he treats or would treat a person of the opposite sex”. Section 24(3) provided for indirect discrimination. And in Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, 359, Mason CJ and Gaudron J considered that s 17(1) of the Equal Opportunity Act 1984 (Vict), which refers to discrimination “on the ground of the status or by reason of the private life of the other person”, required only that the material difference in treatment be based on the status or private life of that person, notwithstanding an absence of an intention or motive on the part of the alleged discriminator that is related to the status or private life of the person less favourably treated. Such views are in line with R v Birmingham City Council, ex parte Equal Opportunities Commission [1989] AC 1155 (HL) referred to in Waters (and see also James v Eastleigh Borough Council [1990] UKHL 6; [1990] 2 AC 751 (HL)).
	20		Their Honours’ reasoning was also that the first of the discrimination provisions, similar in effect to s 9 RDA set out above, extend to acts of indirect discrimination. In cases of indirect discrimination motive or intention plays no part. The judgments of Dawson and Brennan JJ in Banovic (184, 171) and Dawson, Toohey and McHugh JJ in Waters (392-3, 401-2) however hold that provisions like ss 9 and 9(1A) RDA are mutually exclusive of each other. Such a conclusion is not directly relevant to any issue here concerning s 18C RDA, but it may well explain the construction placed on phrases such as “on the ground of” and “by reason of” by Mason CJ, Deane & Gaudron JJ. McHugh J in Waters (400-1) considered that the examples given by Deane and Gaudron JJ in Banovic, where intention or motive could not be said to be a necessary condition of liability, were cases falling within the concept of indirect discrimination dealt with under the separate subsection. His Honour expressed the following, contrary view of the meaning to be given to the words of the requirement:
	“The words “on the ground of the status or by reason of the private life of the other person” in s. 17(1) require that the act of the alleged discriminator be actuated by the status or private life of the person alleged to be discriminated against.
	...
	The words “on the ground of” and “by reason of” require a causal connexion between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of that act (“the victim”). The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did.”
	21		His Honour went on to say that, whilst those determining whether discrimination has occurred are not bound by “the verbal formula” which the alleged discriminator has used, if they would in any event, have acted in the way they did or if they acted genuinely on a non-discriminatory ground, they cannot be said to have acted “on the ground of the status or by reason of the private life” of the victim.
	
	22		In my view this accords with the reasoning of Dawson J in Banovic, which described the enquiry as one as to the “true basis” or “true ground” of the action in question. His Honour also held that the subsection was not to be supplied subjectively, which I take to mean not by reference only to what the person whose conduct in question provides as a ground or basis for the action. The enquiry considers what was in truth likely to have given rise to it, when regard is had to all the circumstances, and this would include the nature of the conduct and the words and expressions used.
	23		Such an approach would also seem to me to address the concerns expressed by Deane and Gaudron JJ (Banovic, 176) that discrimination legislation operates with respect to unconscious acts and that it is not necessary that there be a conscious appreciation, on the part of the discriminator, of their actions. Accepting this, it is not apparent that a search for the true reason would limit the application of the legislation. A statement by their Honours appears to accept that this is the proper enquiry (at 176-177):
	“And there may be other situations in which habits of thought and preconceptions may so affect an individual’s perception of persons with particular characteristics that genuinely assigned reasons for an act or decision may, in fact, mask the true basis for that act or decision. Thus, in the ascertainment of the true basis of an act or decision it may well be significant that there is some factor, other than the ground assigned, which is common to all who are adversely affected by that act or decision. In certain situations that common factor may well be seen to be the true basis of the act or decision. And that may also be the case where some factor is identified as common to a significant proportion of those adversely affected.”
	24		In my respectful view the approach taken by McHugh J gives meaning to words such as “on the ground of” and “because of”. The need to have regard to the plain words of the sections was discussed in some detail by Lockhart J in Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 46 FCR 301, 322. Beyond that the matter is one of factual enquiry.
52.	Her Honour’s approach of adopting what was said by McHugh J in Waters has been followed subsequently: see eg., Toben v Jones (2003) 129 FCR 515; Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105 and Lina Obieta v New South Wales Department of Education and Training [2007] FCA 86.  It is consistent with the approach taken by Weinberg J in Macedonian Teachers Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8 where his Honour, speaking of the distinction between the phrase “based on” in s.9(1) of the Act and by reason of in s.9(1A), said:
	In enacting s 9(1A), which deals exclusively with “indirect discrimination”, the legislature distinguished expressly between the phrase “based on”, and the expression “an act done by reason of” the “other person’s race, colour, descent or national or ethnic origin”. The two expressions are separated by the disjunctive “or”. Ordinary canons of construction might suggest therefore that the legislature intended that the phrase “based on” in s 9(1) should bear a different meaning from the expression “by reason of” contained within s 9(1A), both subsections of the same section of the Act.
	There is no doubt that the expression “by reason of” connotes a relationship of cause and effect. It has been authoritatively so held. The legislature, having chosen to use the expression “based on” as an alternative to the expression “by reason of”, is presumed to have done so in order to signify that these two expressions are not simply interchangeable, but mean different things. This conclusion is strengthened by the operation of s 9(4) of the Act. That subsection is designed to ensure that nothing in the succeeding provisions of Part II of the Act limits the generality of s 9. Thus if the succeeding provisions in Part II are couched in the language of causal nexus, that does not limit the wider links encompassed within the expression “based on” in s 9(1).
53.	The text of s.9(1A) of the Act is consistent with the words by reason of requiring a causal connection between the offending conduct and their discriminatory effect.  The purpose of s.9(1A) is to supply the necessary casual connection where its elements are made out.
54.	Ms Jin frankly concedes that she cannot make out a case of direct discrimination.  That is to say, she cannot make out a case that the Admission Rules were applied by the University and she was refused admission to the Bachelor of Veterinary Science cohort by reason that she is or has been an immigrant.  Rather, she was refused admission to the cohort because she did not have the required rank of 99.  The admission rules, whilst discriminatory, discriminated by reason that Ms Jin did not have the requisite honours degree or GPA to attain the required rank of 99.  She does not suggest that, without anything more, that form of discrimination was unlawful.
55.	In my view, Ms Jin has no reasonable prospect of successfully prosecuting her claim that the University refused to supply services to her by reason that she is or has been an immigrant.
Conclusion
56.	In my view the University has demonstrated that Ms Jin has no reasonable prospect of successfully prosecuting her claim in these proceedings.  The application should be dismissed pursuant to FCCR 13.10(a).
57.	I am presently of the view that costs should follow the event and that Ms Jin should pay the University’s costs according to the Federal Circuit Court Rules 2001.  According to the FCCR (schedule 1), those costs might be seen to be:
Stage	Description	Amount	
1	Initiating or Opposing Application up to completion of first Court day	$2,633.00	
1	Court attendance – 15 November 2013 (short mention)	$271.00	
2	Interim or summary hearing – 4 February, 2014 	$1,661.00	
2	Court attendance – 4 February, 2014 (including advocacy loading)	$1,495.50	
Disbursements:	Court filing fees	Nil	
	Total:	$6,090.50	
58.	Either party may make further submissions in respect of the proposed costs order by 4.00pm on 7 December, 2015.  Thereafter I will consider any further submissions so made and pronounce a final costs order having regard to any submissions, either as to the making of any costs order at all, or the quantum of the costs order, received from the parties.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate:  

Date: 5 November 2015