Mr Balinda ws a refugee from Uganda who settled in Australia in 2004. He completed his school education in Uganda. Whilst in Australia he completed 4 years of study leading to the award of, amongst other qualifications, a Bachelor of Paramedicine.
To be registered as a paramedic, a person must meet the English language proficiency standard. There are four pathways to demonstrate English language competency. They are set out in the English language skills registration standard and summarised in the flow chart shown below.
(The flow chart is dated May 2019. It is being revised but is the current pathway document at the time of writing. Mr Balinda completed his degree in 2019 so it also shows the pathways relevant to him at that time and up until now. )
Working through the flowchart we can see the answers for Mr Balinda:
Q: Was your relevant health qualification or training taught and assessed in English?
A: Yes
Q: Was your relevant health qualification or training obtained in one of the recognised countries?
A: Yes, Australia
Q: Were at least two years of your secondary education taught and assessed in English in one of the recognised countries?
A: No. English is the official language of Uganda where he completed his secondary education, but Uganda is not one of the ‘recognised countries’.
Q: Have you completed at least six years (full time equivalent) continuous education, including your relevant health qualification or training, taught and assessed solely in English in one of the recognised countries?
A: No, the total of his education assessed solely in English from one of the recognised countries (ie Australia) was 4 years.
Therefore: You [Mr Balinda] will need to take an English language test to demonstrate that you meet the standard through the English language test pathway
Mr Balinda argued that, given he’d completed his primary and secondary education in English, albeit in Uganda, the requirement to complete and more importantly pay for an English language test represented prohibited racial discrimination. In late 2021, Mr Balinda raised his concerns with ‘AHPRA, as well as the National Health Practitioner Ombudsman and the Commonwealth Minister for Health and Aged Care’.
The Human Rights Commission
In May 2022 he made a complaint to the Australian Human Rights Commission. In September 2022, the Commission terminated its consideration of the complaint on the basis that:
(1) To the extent the Complaint was concerned with discrimination based on English language proficiency (and was not a complaint about national origin and/or racial discrimination), the Complaint was misconceived – language and English language proficiency are not attributes protected by the RDA [Racial Discrimination Act 1975 (Cth)].
(2) To direct discrimination:
(a) the information before the Delegate was insufficient to support that the ELS Standard was a requirement imposed on Mr Balinda based on his national origin. The ELS Standard applies to all persons who apply for registration, irrespective of their national origin; and
(b) whilst Mr Balinda did not appear to meet the eligibility requirements under Pathways 1–3 of the ELS Standard based on the information before the Delegate, it did not appear to be based on his national origin, rather the distinction is based on where a person undertook their education. Other persons of the same national origin who met the education requirements under Pathways 1–3 would not be denied access to those pathways because of their national origin. Further, Mr Balinda would be eligible to demonstrate his English language proficiency in accordance with the ELS Standard via Pathway 4, and his eligibility under this pathway was not based on his national origin.
With respect to allegations of indirect discrimination:
… the Delegate stated there appeared to be no information to support that the pathways offered under the ELS Standard had the effect of “nullifying or impairing the recognition, enjoyment or exercise on an equal footing, by persons of Ugandan national origin, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life”. Further, the Delegate considered that the imposition of the ELS Standard and the four pathways made available under it was not an unreasonable requirement in the circumstances, noting its stated purpose to protect public health and safety with respect to the paramedicine profession.
The Federal Circuit and Family Court of Australia (FedCFamC)
On 30 November 2022, Mr Balinda filed an Application with the Federal Circuit and Family Court of Australia to apply for permission to continue his complaint in the Court, as required by the Australian Human Rights Commission Act 1986 (Cth) s 46PO(3A). In Balinda v Australian Health Practitioner Regulation Agency [2024] FedCFamC2G 1429 , Young J gave her reasons for refusing that application. At [80] her Honour set out the gist of Mr Balinda’s complaints:
In summary, Mr Balinda says the ELS Standard discriminates against him because:
(a) Uganda is not a recognised country (… recognised countries at the time of hearing were Australia, Canada, Ireland, New Zealand, United Kingdom, United States of America and South Africa) notwithstanding that English is the official language of Uganda and the language of instruction and learning in schools and institutions;
(b) notwithstanding that he has completed a Bachelor of Paramedicine at an Australian University he would have to sit and pay for an English language test administered by a private company;
(c) most of the students who graduated from the same degree would not have to sit the English language test to meet the ELS Standard;
(d) access to English language testing centres was restricted during the COVID-19 pandemic requiring him to have access to compatible technology to complete the test remotely which he cannot afford; and
(e) the cost of the English language test is prohibitive.
Young J found that Mr Balinda’s position was not ‘reasonably arguable’. Like the Human Rights Commission she found (at [91]):
… language and specifically, English language proficiency, is not a protected attribute under the RDA and it is not a ground by which contravention of the RDA can be proven. Mr Balinda’s claim as articulated on this basis is therefore fundamentally misconceived.
Even so her Honour considered his arguments and held that there had been no direct discrimination. She said (at [94]-[96]):
Firstly, on the evidence before the Court, any distinction, exclusion, preference or restriction arising from the application of the ELS Standard is not based on race or national or ethnic origin. The ELS Standard applies to all persons seeking registration to practice paramedicine, irrespective of national origin. It is not expressed by reference to an applicant’s race, colour, ethnic or national origin. To the extent that there is a distinction, exclusion, preference or restriction it is based on the level and type of English instruction received. Paramedicine is a regulated profession with the objective of protecting the public. The evidence before the Court supports a conclusion that the ELS Standard is formulated in compliance with the National Law and for the purpose of ensuring the safe and effective delivery of paramedicine services to the public. The “true basis” of the ELS Standard is the protection of the public in the delivery of paramedical services; not the exclusion of persons of certain race, ethnic or national origin.
Secondly, Mr Balinda’s inability to demonstrate his English language proficiency via any of Pathways 1 – 3 is not because of his Ugandan national origin. Rather, it is because of where Mr Balinda undertook his education. Mr Balinda’s national origin does not preclude him from accessing the ELS Pathways. Further, Mr Balinda is not denied the opportunity to be registered to practice paramedicine by reason of the ELS Standard. Pathway 4 is available to him.
Thirdly, Mr Balinda has not identified any human right or fundamental freedom which is nullified or the recognition, enjoyment or exercise of which is impaired… There is no fundamental right to be registered as a paramedic. Further, I accept the respondents’ submission that Mr Balinda’s complaint is not about the right to employment. The respondents are not employers; rather, they are concerned with the registration and regulation of paramedics. Accordingly, the respondents do not have a role in matters which fall within Article 5(e) of the [International] Convention [on the Elimination of All Forms of Racial Discrimination].
There was also no indirect discrimination. Her Honour said (at [100]-[101]):
Firstly, and most significantly, there is no evidence that Mr Balinda does not or cannot meet the English language proficiency requirement in accordance with the ELS Standard. Mr Balinda has at no time applied to be registered as a paramedic in Australia. Further, Mr Balinda is eligible to demonstrate his English language proficiency via Pathway 4 in order to be considered for registration as a paramedic.
Secondly, on the evidence before the Court the ELS Standard and the four pathways are reasonable. They reflect research, consultation and review. The rationale for the ELS Standard, as established by Ms Townley’s evidence, is the requirements of the National Law and the protection of the public in the delivery of paramedicine services. The necessity for the Board to objectively determine an applicant’s English language proficiency due to the complex nature of the medical information that must be communicated, the need for that information to be precise and accurate and the potential harm which could be caused if that information is not communicated in a precise and accurate manner is, in my view, clearly evident and inherently reasonable. The four pathways provide for objective proof. As to the recognised countries for the purposes of Pathway 4, Ms Townley’s evidence establishes that this is objectively determined and based on available evidence and experience. Further, the list of recognised countries is subject to periodic review and may be expanded if suitable objective evidence for that expansion and inclusion is available.
The court also rejected claims that Mr Balinda had been denied equality before the law ([103]-[107]) and that he had been discriminated against in the provision of services ([108]-[110]).
At [54] (citing James v Workpower Inc [2018] FCA 2083) her Honour determined that the issue for the court was not only the strength of Mr Balinda’s arguments (but that is, of course, a key consideration) but also issues of:
- the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances;
- the nature of the allegations made (including whether for example they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be);
- how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission’s termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable;
- whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay;
- whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way;
- the factual and legal complexity of the matters raised by the allegation of unlawful discrimination;
- whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) does not exhaust the circumstances in which this factor might be considered; and
- other factors that are often considered in leave applications – such as prejudice to a party.
Having determined that Mr Balinda’s case was not ‘reasonably arguable’ her Honour went onto to consider those other matters (at [113]-[130]) but found that none of them, either on their own or taken together warranted a grant of leave to continue the complaint in the FedCFamC. The application was dismissed ([132]).
The role of the court
At [84] Young J says that Mr Balinda sought assistance from the Court to obtain answers to questions about why countries like South Africa were ‘recognised’ when other African states with English as the official language were not. As an aside that does appear to be a common misconception of self-represented litigants, that is a belief that if they raise questions then the Court will compel the other side to answer them. A court sits as an umpire in a dispute, not as an investigative body. It is not open to a litigant to come to court and say ‘I want to know …’ The litigant has to bring evidence to support their legal claims. In a case such as this it would have been up to the litigant to obtain details from AHPRA or the board by way of pre-trial procedures such as ‘discovery’, ‘interrogatories’ or the issue of a subpoena so that he could then make submissions to the court about the decision making process. Not ask the court to compel the other side to explain their position.
As her Honour said (at [111]):
… this Court is not a Court of inquiry. Its role is not inquisitorial, nor are its powers “at large”. It is not the role of the Court to enquire into matters with which Mr Balinda disagrees, nor to consider matters of concern to Mr Balinda generally. Nor is it to require parties to provide Mr Balinda with information that he seeks. The sole role of the Court in these proceedings is to determine whether Mr Balinda ought be granted leave to make an application alleging unlawful discrimination by the respondents in breach of the RDA.
Conclusion
Requiring people to prove their English language competency as required by the English language skills registration standard does not amount to racial discrimination. The requirement is not based on race but on English language competency. The determination of which countries are ‘recognised’ even where other countries may conduct their school education in English is resaonble and supported by evidence.
This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.
This blog is a general discussion of legal principles only. It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.
Australian Emergency Law 
It is tempting to infer that Mr Balinda might have saved time and money if he faced the test rather than take a combative role against his adopted country. But perhaps he suspected he would fail the test?
or he could have done two more years of study. We don’t know his motivation but should not jump to conclusions. Many people want to litigate to defend what they see as an important matter of principle. And challenging an administrative rule that you believe is unreasonable should not be considered an attack on his adopted country. He wasn’t challenging Australia but AHPRA and using institutions established by Australia for that purpose.
Thanks for your alternative view Michael…………..Richard