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1.1 The author is
Mr. D.R., a New Zealand citizen currently residing in Australia. He claims
to be a victim of violations by Australia of articles 5(e)(iv), 5(e)(v), and
5(d)(iii), read in connection with article 2(1)(a) of the International
Convention on the Elimination of All Forms of Racial Discrimination. He is
not represented.
The facts as presented by the petitioner:
2.1 The petitioner is a New Zealand citizen residing in Australia. He holds
a Special Category Visa (SCV), which allows him to live and work
indefinitely in Australia. This special immigration status is the result of
the bilateral Trans-Tasman Travel Arrangement between Australia and New
Zealand, which allows citizens of both countries to live in either country
indefinitely.
2.2 The petitioner claims that a number of Australian laws unlawfully
restrict his rights to social security, education, and nationality, on the
basis of his national origin, in violation of articles 5(e)(iv), 5(e)(v),
and 5(d)(iii), in connection with article 2(1)(a) of the Convention. He also
argues that there are no national laws or judicial avenues which he could
avail himself of to seek effective protection and remedies for
discrimination on the ground of national origin in Australia. As such, the
author argues that the State party also breached article 6 of the Convention
in his regard.
2.3 Regarding the right to social security, the petitioner argues that the
Social Security Act (SSA), which restricts access to the full range of
social security payments to New Zealand citizens, unless they hold permanent
visas, differentiates between Australian nationals and other legal
residents, based on their immigration status. The author claims that to the
extent that they impose conditions which only apply to non-Australian
residents, these restrictions constitute discrimination based on
nationality. The author’s allegations refer mainly to the meaning of the
term “Australian resident”, which defines eligibility for most social
security benefits under the SSA. “Australian residents” include Australian
citizens, permanent visa holders, and “protected” SCV holders. Those New
Zealanders who were in Australia on 26 February 2001, and those absent from
Australia on that day but who had been in Australia for a period totalling
12 months in the two years prior to that date, and who subsequently returned
to Australia, are considered as “protected” SCV holders, and treated as
Australian residents for the purposes of the Act. Other New Zealand citizens
must meet normal migration criteria to become “Australian residents” for the
purposes of the Act. The author first arrived in Australia after the
pertinent date, and therefore does not hold “protected SCV” status for the
purposes of the SSA. He is therefore required to apply for, and obtain a
permanent residence visa if he wishes to enjoy the same social benefits
afforded to Australian citizens and permanent-visa holders. He would then be
required to wait two additional years (waiting period for new arrivals
regarding eligibility for social security), even though he has already
resided in Australia for six years. The author further claims that another
consequence of these restrictions is that his six years of residency in
Australia will not count towards the 10- year minimum eligibility period for
pension benefits, as long as he is not considered an “Australian resident”
under the SSA. The petitioner has not attempted to apply for a permanent
resident visa. He contends that the requirement imposed by the SSA on New
Zealand nationals to hold a permanent-visa is superfluous and incompatible
with the Convention, since they are de facto permanent residents, on the
basis of the bilateral Trans- Tasman Travel Arrangement between Australia
and New Zealand. He further argues that these restrictions constitute
unequal treatment between Australians and legally resident non Australians,
and directly discriminate against him on the basis of his nationality. He
adds that these restrictions are devoid of any legitimate aim.
2.4 Secondly, the petitioner argues that the State party violated his right
to education under the Convention. Persons entitled to a higher education
tuition fee loan (“HECS-HELP” Programme) from the Australian Government,
under the Higher Education Support Act (2003) (HESA), must be either
Australian citizens, or “permanent humanitarian visa holders”, i.e.
refugees, who reside in Australia for the duration of the unit of study. The
author alleges that under the HECS-HELP Programme, the Government pays a
significant portion of higher education tuition fees for a student who
qualified for a subsidised place, and enables the student to borrow the
balance. Students who are eligible for the HECS-HELP loan are also eligible
for a substantial tuition fee discount by paying their fees upfront.
Students who do not qualify for a subsidised place must pay the full tuition
fee, but the “FEE-HELP” Programme [FN1] would enable them to borrow the full
amount. Persons who qualify for FEEHELP assistance are Australian citizens,
permanent humanitarian visa holders, and permanent visa holders undertaking
study as part of a bridging course for overseas-trained professionals.
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[FN1] Sections 90.5 and 104.5 of the HESA.
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2.5 The petitioner argues that the eligibility requirements imposed by the
HESA unlawfully restrict access to higher education for all resident
non-Australians who are not refugees, regardless of their capacity to pay
back the loan. He contends that these restrictions do not use the notion of
residence permit for the legitimate purpose of ascertaining whether a non-
Australian has the right to reside, but instead uses it to define a
condition which is constitutive of access to higher education. He argues
that the State party should provide a legitimate explanation for the fact
that while a person who obtained Australian citizenship by descent, but who
has otherwise never resided in, nor paid taxes in Australia, would be
eligible for a student loan and a tuition fee discount, a non-Australian who
permanently resides in Australia, but is not a refugee, cannot benefit from
such entitlements. He argues that this requirement discriminates against him
on the basis of his nationality, and has no legitimate aim.
2.6 Thirdly, the petitioner contends that he is the victim of a violation by
the State party of his right to nationality under the Convention. He argues
that in order to be eligible for Australian citizenship, he would need to be
a “permanent resident”, under the meaning of the Australian Citizenship Act
(2007) (ACA). Section 5(1) of the ACA defines a “permanent resident” as the
holder of a permanent visa who is present in Australia, or the holder of a
permanent visa who is absent from Australia, but has previously been present
in Australia and held a permanent visa immediately before last leaving
Australia. Persons who hold, or have held, a Special Category Visa may also
be considered “permanent residents” if they satisfy specific requirements
similar to those provided by the Social Security Act (SSA) for the
determination of “Australian residents”. In other terms, only those New
Zealanders who were in Australia on 26 February 2001, and those absent from
Australia on that day but who had been in Australia for a period totalling
12 months in the two years prior to that date, and who subsequently returned
to Australia, will qualify as “permanent residents” under the ACA. New
Zealand citizens who have a residence certificate issued under the SSA will
also be deemed permanent residents for the purposes of the Act. [FN2]
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[FN2] Section 5(2), read with Schedule 1 of the ACA.
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2.7 The petitioner holds a Special Category Visa, which enables him to
reside legally in Australia for an indeterminate time period, and therefore
makes him a de facto permanent resident. However, to be entitled to apply
for Australian citizenship after a period of 2 to 4 years, he would need to
become a legally-recognized permanent resident, or be deemed a permanent
resident for the purposes of the Australian Citizenship Act (ACA). The
petitioner claims that despite the fact that he has permanently resided in
Australia for more than 4 years, he is excluded from the definition of
“permanent resident” under the ACA, as a result of conditions which pertain
directly to his nationality and immigration status. He argues that the
imposition of specific conditions only applicable to New Zealand citizens
discriminate upon him on the basis of his national origin, and are
deliberately designed to limit his access to social security, which is not a
legitimate aim. He notes that the deliberate nexus between the restrictions
imposed upon New Zealand citizens with regard to access to citizenship and
social security benefits is reinforced by the fact that the “permanent
resident” criteria within the ACA are similar to those provided in the
Social Security Act for the determination of the status of “Australian
resident”. The author alleges that as a result of the restrictive conditions
imposed by the ACA, he is ineligible to apply for Australian citizenship,
and is therefore subject to the limitations imposed by Australian law
vis-ŕ-vis non-citizens for access to social security and higher education
benefits.
2.8 Lastly, the petitioner affirms that the State party failed to offer him
effective protection from, and remedy for the above allegations of
discrimination under the Convention, and as such infringed articles 2(1)(a)
and 6 of the Convention. He claims that Australia’s Racial Discrimination
Act (1975) does not offer any effective protection or remedy for
discrimination on the ground of nationality, since the term “national
origin” in section 10 was interpreted by the Full Bench Federal Court as
excluding nationality as a ground for discrimination, [FN3] an
interpretation which was later confirmed by the High Court of Australia.
[FN4] The author claims that this judicial interpretation of the Racial
Discrimination Act precludes him from seeking remedy via the Australian
court system. He submits that the only two possible avenues for the pursuit
of any remedy are via the Commonwealth Ombudsman, or the Human Rights and
Equal Opportunities Commission (HREOC). However, he has not made a formal
complaint before any of these instances as he asserts that neither has the
power to override the operation of Commonwealth legislation, [FN5] and
because of the interpretation of the Racial Discrimination Law (1975)
previously detailed, which excludes nationality as a ground of
discrimination.
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[FN3] Macabenta v. Minister of State for Immigration and Multicultural
Affairs, [1998] 385 FCA.
[FN4] The author stresses that by rejecting special leave to appeal in the
Macabenta case, the High Court settled the point that nationality is not a
recognized ground of discrimination under the Racial Discrimination Act
(1975).
[FN5] The author refers to the Human Rights Committee’s Communication
N°900/1999, C. v. Australia, decision of 28 October 2002, and CERD
Communication N° 39/2006 and D.F. v. Australia, decision of 22 February
2008.
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The complaint:
3. The petitioner claims that the Social Security Act (1991) (SSA), the
Higher Education Support Act (2003) (HESA), and the Australian Citizenship
Act (2007) (ACA) discriminated against him on the basis of his New Zealand
nationality, by withdrawing entitlements to social security, and unlawfully
restricting his access to education and citizenship, in breach of articles
5(e)(iv), 5(e)(v) and 5(d)(iii), in connection with article 2(1)(a) of the
Convention. By so doing, the State party committed an act of racial
discrimination against him. The State party also failed to offer him
effective protection and remedies, and therefore failed to pursue without
delay a policy of eliminating racial discrimination, in breach of articles 6
and 2(1)(a) of the Convention.
State party’s submission on admissibility and merits:
4.1 On 5 February 2009, the State party submitted that the communication
should be declared inadmissible, as its allegations are incompatible with
the provisions of the Convention, and the author has not exhausted all
available domestic remedies. Subsidiarily, the State party submits that the
allegations are misconceived and not substantiated by evidence of racial
discrimination, and are without merit.
4.2 For the State party, the communication is inadmissible ratione materiae
under rule 91(c) of the Committee’s rules of procedure, as the Committee is
only competent to examine communications alleging racial discrimination,
under the meaning of the Convention. A claim on discrimination on the basis
of nationality does not constitute racial discrimination as defined in
article 1(1) of the Convention. [FN6] The State party refers to article 1(2)
of the Convention, which states that the Convention “shall not apply to
distinctions, exclusions, restrictions or preferences made by a State Party
to this Convention between citizens and non-citizens”.
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[FN6] The State party also refers to Australia’s Racial Discrimination Act
(1975), which implements Australia’s obligations under the Convention.
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4.3 Regarding allegations regarding his right to social security and
education, the State party asserts that the petitioner failed to exhaust
domestic remedies, noting that he had a number of administrative and
judicial avenues open to him, the most relevant of which would have been to
bring a complaint under the Racial Discrimination Act (1975) to the Human
Rights and Equal Opportunity Commission (HREOC). In the event that the
complaint was not resolved by the HREOC, the author could have applied to
have the matter heard by the Federal Magistrates Court or the Federal Court
of Australia to obtain an enforceable remedy for unlawful discrimination. It
was also possible for him to make a complaint to the Commonwealth Ombudsman.
The State party notes that the doubts expressed by the petitioner about the
effectiveness of available remedies do not absolve him from pursuing them.
[FN7] It further notes that the author failed to use the most obvious
available remedy of applying for permanent residency in Australia, which
would allow him to access certain social security payments not covered by
the bilateral Social Security Agreement between Australia and New Zealand
(2001). Permanent residency would also entitle the author to apply for
Australian citizenship, which in turn would enable him to access the higher
education loan schemes and tuition discounts available to Australian
citizens. Had the author successfully applied for permanent residency and
subsequently claimed social security payments, a significant number of
administrative and judicial avenues would have been opened to him to
challenge decisions made in relation to his claim.
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[FN7] The State party refers to CERD Communication N°009/1997, D.S. v.
Sweden, inadmissibility decision of 17 August 1998, para 6.4.
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4.4 On the merits, the State party submits that the petitioner’s claims are
misconceived, as the limitations on his ability to access certain social
security payments and higher education loans and discounts do not arise by
reason of his national origin, but rather from the fact that he is neither a
permanent resident nor a citizen of Australia. The Australian Government
introduced legislative changes in 2001, so as to provide a more equitable
situation between all migrants. Previously, New Zealand citizens received
preferential treatment; the subsequent withdrawal of such advantages merely
places New Zealand citizens on an equal footing with people of other
nationalities who are neither permanent residents nor Australian citizens.
This was recognized by the Committee as a legitimate aim. [FN8] The State
party dismisses as incorrect the petitioner’s assertion that his six years
of residency in Australia will not count towards the 10 year period which is
a prerequisite to obtain age pension, and confirms that upon reaching 65
years, he will be able to rely on the Social Security Agreement between
Australia and New Zealand and ensure that his six years of residence are
taken into account. It is open for the author to apply for permanent
residency, which would make him eligible to apply for Australian
citizenship, so as to enable him to receive the same entitlements to social
security payments as all Australian citizens.
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[FN8] The State party refers to General Recommendation 30, and to
Communication N° 39/2006, D.F. v. Australia, decision of 22 February 2008.
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4.5 On the right to education, the State party submits that citizenship and
residency restrictions contained in the Higher Education Support Act (2003)
with regard to access to the “HECS-HELP” and “FEE-HELP” schemes are
consistent with Australia’s obligations under the Convention. These
restrictions were introduced for the legitimate purpose of ensuring that
publicly funded higher education meets, first and foremost, the needs of
Australian citizens, and for assisting in managing the debt avoidance
potential related to non-Australian residents borrowing taxpayer funds
through student loans, and then moving back overseas. New Zealand citizens
living in Australia are, for that purpose, treated in the same way as all
foreign nationals who are not Australian citizens, permanent humanitarian
visa holders, or permanent visa holders undertaking study as part of a
bridging course for overseas-trained professionals. The State party notes
that as a New Zealand citizen, the author has access to employment services,
health care, public housing, primary and secondary education and family tax
benefits in Australia. New Zealand citizens can travel, live and work
indefinitely under the terms of the Trans-Tasman Travel Arrangement. In this
respect, they continue to access a significant relative advantage over
foreign nationals of other States. It is open to the author to apply for
permanent residency, like migrants of other nationalities. This would allow
him to apply for Australian citizenship, which would enable him to receive
the same entitlements to loan schemes and discounts as all Australian
citizens.
4.6 On the claim that the eligibility requirements for acquiring Australian
citizenship are unequally imposed upon New Zealand citizens so as to render
them ineligible to apply for Australian citizenship, the State party submits
that the author has not exhausted all domestic remedies, as he has not taken
steps preparatory to applying for Australian citizenship. Had he taken such
steps, there would have been a range of domestic remedies available to him
to seek a review of Government decisions made in relation to his
application, such as appeals to the Administrative Appeals Tribunal, the
Federal Court, and the High Court of Australia. The petitioner also had
available to him the ability to make complaints to the Human Rights and
Equal Opportunity Commission (HREOC) under Australia’s anti-discrimination
legislation, the Commonwealth Ombudsman, or commence legal proceedings in
the Federal Magistrates Court and the Federal Court of Australia.
4.7 Subsidiarily, the State party submits that the petitioner’s allegations
are without merit. [FN9] The eligibility criteria set forth in the
Australian Citizenship Act require that the person be a permanent resident,
a condition which equally applies to all migrants seeking to apply for
Australian citizenship, without distinction as to national origin. The
author has not attempted to gain permanent residency as a step preparatory
to applying for Australian citizenship, nor has he provided evidence
suggesting that he faces any impediment to becoming a permanent resident,
arising specifically from his national origin, or the fact that he is a New
Zealand citizen.
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[FN9] It refers to article 1(3) of the Convention and to General
Recommendation N°30, para. 14.
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4.8 On the final claim of the petitioner, the State party submits that there
is no evidence to suggest that the author made any attempts to access and
seek relief through the various domestic remedies which were available to
him. As the author did not invoke any of these remedies, the State party
submits that it does not have a case to answer on the merits as to its
provision of protection and remedies. It is only once available remedies are
operationalised that any assessment can be made as to whether those remedies
did indeed provide the author with protection against any alleged acts of
discrimination under the Convention. Author’s comments on State party
submission:
5.1 The petitioner reaffirms that he is the victim of discrimination as a
New Zealand national, as a result of Australia’s laws and denial of
protection and remedies. Nationality is a recognised ground for
discrimination under the Convention, and is encompassed in the concept of
national origin. The Committee is therefore competent to consider his
claims. On the issue of exhaustion of domestic remedies, he argues that he
should not be required to pursue domestic remedies, since the State party
itself acknowledged that nationality is not recognised as a ground for
discrimination under Australian law. In these conditions, he considers that
domestic remedies do not offer him any reasonable prospect of success.
5.2 In the petitioner’s view, the concept of “permanent resident” is
ambiguous under Australian law, since he has the right to reside permanently
in Australia, but yet is not legally recognized as a permanent resident. He
argues that the State party only addressed the issue of differential
treatment between Australian citizens and residents of other nationalities,
but failed to respond to his claim of differential treatment between New
Zealand nationals specifically and residents of other nationalities.
5.3 The petitioner acknowledges the fact that if he held a permanent visa,
he would eventually be able to access certain social security payments not
already covered by the bilateral Social Security Agreement between Australia
and New Zealand. He maintains, however, that it is a discriminatory
requirement, and that the State party failed to establish that it has any
legitimate rationale. The range of domestic remedies cited by the State
party would only be relevant to the holder of a permanent visa who has been
denied social security payments as a result of an administrative decision.
In his case, he claims to have been denied his right to certain social
security benefits by the direct operation of legislation, which he deems
discriminatory.
5.4 On access to higher education, he claims that the State party did not
explain why non- Australian residents do not have access to the same higher
education loan schemes and tuition discounts as Australian citizens. He adds
that while non- New Zealand permanent residents will eventually be entitled
to apply for citizenship, and therefore benefit from access to the
Government loan scheme, he, as a New Zealand national, cannot comply with
the discriminatory citizenship requirement imposed by law, as he is not
considered a permanent resident. He adds that holding a permanent visa would
in any case not entitle him to apply for tuition loans and discounts, unless
he held a permanent humanitarian visa. He maintains that this
differentiation based on nationality and immigration status has no
legitimate aim.
5.5 Regarding the right to nationality, the petitioner reiterates that the
requirement for permanent residency is discriminatory. He stresses that his
New Zealand nationality is being used as an illegitimate impediment to
receiving Australian citizenship. The range of domestic remedies cited by
the State party would only be relevant to the holder of a permanent visa who
has been denied citizenship as a result of an administrative decision. In
his case, he claims to have been denied his right to nationality by the
direct operation of legislation, which he deems discriminatory. He also
notes that the application procedure for a permanent visa is an onerous one,
requiring that the applicant meet strict conditions, which represent
significant barriers preventing long-term residents from enjoying social
security and higher education benefits, as well as access to Australian
citizenship.
5.6 The petitioner reaffirms that all domestic remedies are illusory. He
notes that the State party did not dispute that domestic law does not offer
him any protection or remedy for discrimination based on New Zealand
nationality concerning eligibility for Australian citizenship. Such
discrimination falls within the ambit of the concept of racial
discrimination. By failing to offer him effective protection from, and
remedy for such racial discrimination, the State party breached articles
2(1) (a) and 6 of the Convention.
Issues and proceedings before the Committee:
6.1 Before considering any claim contained in a communication, the Committee
on the Elimination of all Forms of Racial Discrimination must decide,
pursuant to article 14, paragraph 7(a), of the Convention, whether the
current communication is admissible.
6.2 The Committee has noted the State party’s contention that the author’s
communication should be considered inadmissible as it is incompatible with
the provisions of the Convention (rule 91(c) of the Committee’s rules of
procedure), and the author failed to exhaust domestic remedies (rule 91(e)).
6.3 On the compatibility of the communication with rule 91(c) of the
Committee’s rules of procedure, the State party argues that the author’s
allegations do not fall ratione materiae within the scope of the definition
of racial discrimination, as provided in article 1(1) of the Convention. The
State party noted that this definition does not recognise nationality as a
ground of racial discrimination. It further noted that article 1(2) of the
Convention specifically excluded distinctions, exclusions, restrictions, or
preferences made by a State party between citizens and non-citizens from the
Convention. Taking into account General Recommendation No. 30 of 2004 and in
particular the necessity to interpret article 1, paragraph 2, of the
Convention in the light of article 5, the Committee does not consider that
the communication as such is prima facie incompatible with the provisions of
the Convention.
6.4 The Committee notes the State party’s contention that the communication
should be considered inadmissible under rule 91(e) of the rules of
procedure, as the author failed to exhaust domestic remedies. The petitioner
in turn maintains that complaints to the Human Rights and Equal Opportunity
Commission (HREOC) or the Commonwealth Ombudsman would have no prospect of
success. The Committee observes that the HREOC cannot proceed with any
complaint under the Convention, and that the HREOC Act does not cover
complaints where the events complained of are the result of the direct
operation of legislation. The Committee recalls that discrimination on the
ground of a person’s citizenship is not a ground covered by the Racial
Discrimination Act (1975). The State party has conceded this. The Committee
refers to its decision on communication N° 39/2006, D.F. v. Australia,
[FN10] where the complaint had been rejected by the HREOC on the three
grounds evoked above. It is therefore reasonable to assume that had the
author in this case brought a complaint before the HREOC, it would have
failed on the same grounds. In any event, the Committee notes that any
decision of the HREOC or the Commonwealth Ombudsman, even if they had
accepted the petitioner’s complaint and decided in his favour, would only
have had recommendatory rather than binding effect, and the State party
would be free to disregard such decisions. The Committee therefore considers
that none of the proposed remedies can be described as one which would be
effective. [FN11]
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[FN10] Decision of 22 February 2008.
[FN11] The Committee here refers to a relevant and similar analysis made by
the Human Rights Committee in Communication N° 900/1999, Mr. C. v.
Australia, decision of 28 October 2002, para 7.3.
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6.5 As for the State party’s contention that the author also had a number of
judicial instances before which he could have sought remedy, the Committee
reiterates that domestic remedies need not be exhausted if they objectively
have no prospect of success. This is the case where under applicable
domestic law, the claim would inevitably be dismissed, or where established
jurisprudence of the highest domestic tribunals would preclude a positive
result. Taking into account the clear wording of the decision of the Full
Court of the Federal Court of Australia in the Macabenta case, [FN12] which
excluded nationality as a recognized discrimination ground within the Racial
Discrimination Act (1975), the Committee concludes that there were no
effective remedies that the author could have pursued. As the Committee sees
no other impediment to admissibility, it proceeds to the consideration of
the case on its merits.
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[FN12] Macabenta v. Minister of State for Immigration and Multicultural
Affairs, [1998] 385 FCA, cited in para 2.11 above.
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7.1 The Committee observes that the State party contests the petitioner’s
claim that he is discriminated against on the basis of his national origin
with respect to the distribution of social security benefits. It observed
that prior to amendments introduced in 2001, New Zealand citizens residing
in Australia enjoyed preferential treatment with regards to access to social
security payments in Australia, as compared with foreign nationals of other
States who were neither Australian citizens, nor permanent residents.
Pursuant to the 2001 amendments, these benefits were withdrawn from all
other New Zealand citizens, to ensure that regardless of their place of
their place of birth, all were placed within the same position as migrants
from other countries in Australia. The Committee notes that like other
non-citizens, New Zealand citizens in Australia can apply on the same terms
for a permanent resident’s visa or Australian citizenship, the receipt of
either of which would bring them within the definition of “Australian
resident” for the purposes of receiving the social security benefits in
question. In this context, the Committee refers to its Opinion on case N°
39/2006, D.F. v. Australia, where the Committee examined a comparable claim,
and found that the 2001 amendments did not result in the operation of a
distinction, but rather in the removal of such a distinction, which had
placed the author and all New Zealand citizens in a more favourable position
compared to other non-citizens. The Committee believes that this analysis is
pertinent, and applicable in the present situation. The author has not
demonstrated that the implementation of the Social Security Act (SSA)
results in distinctions based on national origin. He has failed to show that
his national origin would be an impediment to receiving a permanent
resident’s visa or Australian citizenship, which would make him eligible for
the benefits in question under the SSA. For these reasons, the Committee
concludes that the Act in question does not make distinctions based on
national origin and thus finds no violation of either article 5 (e)(iv) or
2(1)(a), of the Convention.
7.2 Regarding the right to education, the Committee noted the author’s
contention that the eligibility criteria set forth in the Higher Education
Support Act (2003) (HESA), requiring that the applicant of student loans and
tuition fee discounts must be either an Australian citizen, or a “permanent
humanitarian visa holder”, i.e. a refugee, have unduly restricted his right
to education. The Committee also took note of the State party’s argument,
alleging that the rationale for such restriction was to ensure that publicly
funded higher education meets, first and foremost, the needs of Australian
citizens, and to assist in managing the debt avoidance potential related to
non-Australian residents borrowing taxpayer funds through student loans, and
then moving back overseas. The Committee notes that the author’s lack of
entitlement to such benefits is not based on his national origin, but on the
fact that he is not an Australian citizen, the holder of a permanent
humanitarian visa, or the holder of a permanent visa undertaking a unit of
study as part of a bridging course for overseas-trained professionals. New
Zealand citizens living in Australia are treated in the same way as other
foreign nationals who do not meet these objective requirements. Even if it
favours Australian citizens and recognized refugees, it is not possible to
reach the conclusion that the system works to the detriment of persons of a
particular national origin. Like other non-citizens, New Zealand nationals
in Australia can apply on the same terms as persons of other nationalities
for a permanent resident’s visa, which in turn would entitle them to apply
for Australian citizenship subsequently, the receipt of which would bring
them within the eligibility requirements of the HESA. The author has not
demonstrated that the implementation of the HESA results in distinctions
based on national origin. He has failed to show that his national origin
would be an impediment to receiving a permanent resident’s visa or
Australian citizenship, which would make him eligible for benefits under the
HESA. For these reasons, and insofar as the author’s complaint is based on
article 5 (e) (v) and 2(1) (a) of the Convention, the Committee considers it
to be ill-founded.
7.3 With regards to the right to nationality, the Committee notes the
author’s contention that the restrictive definition of “permanent resident”
under the Australian Citizenship Act (2007) (ACA) unduly restricts his right
to nationality under the Convention. The Committee also noted the State
party’s argument that the author, as a New Zealand citizen, can obtain a
permanent resident visa and then apply for Australian citizenship. There is
no evidence in the communication to suggest that the author made any such
attempts to gain permanent residency as a step preparatory to applying to
Australian citizenship. The Committee observes that there are no obstacles
imposed particularly on New Zealand nationals to acquiring permanent
residency in Australia or Australian citizenship. The author has not
demonstrated that the implementation of the ACA results in unjustified or
disproportionate distinctions based on national origin. He has failed to
show that his national origin would be an impediment to receiving a
permanent resident’s visa or Australian citizenship, that the majority of
visa holders are non-citizens of national origins different to himself, or
indeed that he has been refused such a visa, or Australian citizenship, on
the grounds of his national origin. For these reasons, the Committee
concludes that the Act in question does not make any distinctions based on
national origin and thus finds no violation of either article 5 (d)(iii) or
2(1)(a) of the Convention.
7.4 The Committee noted the petitioner’s argument that the State party
failed to provide him effective protection from, and remedy for the
preceding allegations of discrimination on the ground of nationality under
the Convention, and that by doing so, Australia failed to pursue a policy of
eliminating racial discrimination. The Committee also notes the State
party’s argument that it is not until the petitioner seeks relief through
the various domestic remedies available that any assessment on their
compliance with the Convention can be made. The Committee noted that the
petitioner has not applied for permanent residency or for Australian
citizenship, the acquisition of which is central to all his claims for
entitlement to the various benefits sought. The Committee concluded that
there is no violation by the State party of the Convention vis a vis the
author, with regard to any of the above allegations. The State party cannot
be held accountable to ensure protection from, or remedies for violations
which it did not commit. The Committee thus finds no violation of either
article 6, or article 2(1)(a), of the Convention.
8. The Committee on the Elimination of Racial Discrimination, acting under
article 14, paragraph 7 (a), of the International Convention on the
Elimination of All Forms of Racial Discrimination, is of the opinion that
the facts as submitted do not disclose a violation of any of the provisions
of the Convention.
[Adopted in English, French, Spanish and Russian, the English text being the
original version. Subsequently to be issued also in Arabic and Chinese as
part of the Committee’s annual report to the General Assembly.] |
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