Macabenta, Maria v Minister for Immigration & Multicultural Affairs [1998] FCA 385

Procedural Posture

Representative Proceeding Seeking Declaratory Relief Under S 10 of the Racial Discrimination Act 1975 (cth) Concerning Migration Visa Regulations / Final Hearing; Application Dismissed

Legal Issues

1. 1 ['Whether Statutory Rule No 279 of 1997 attracted the operation of s 10 of the Racial Discrimination Act 1975 (Cth).' 'Whether the visa provisions differentiated by reason of national origin, and whether national origin is the same as nationality.' 'Whether the applicant or group members did not enjoy, or enjoyed to a more limited extent, a right enjoyed by persons of another race, colour or national or ethnic origin.' 'Whether the opportunity to apply for Resolution of Status visas was a right protected by s 10 of the Racial Discrimination Act 1975 (Cth).' 'Whether concepts of indirect discrimination should be introduced into s 10.' 'Whether the visa provisions were special measures under Article 1(4) of the International Convention on the Elimination of all Forms of Racial Discrimination.' 'Whether any principle of benign discrimination applied.']

Ratio Decidendi

Section 10 was not enlivened because the visa provisions used nationality at entry, valid passport status, entry dates and a history of prior humanitarian governmental concessions, not national origin, as criteria. Nationality is not the same as national origin. Further, the opportunity to apply for the new visas was referable to a particular history of governmental treatment and expectations arising from that treatment, so persons outside that history were not denied equal enjoyment of substantially the same right by reason of national origin. The application was therefore dismissed.

Court Disposition

The application was dismissed.

Orders

• ['The application be dismissed.' 'The parties are directed to bring in Short Minutes to deal with the appropriate future conduct of the proceedings and costs.']