I have previously reported on Mr Balinda’s complaint alleging racial discrimination by the Australian Health Practitioner Regulation Agency (AHPRA) and the Paramedicine Board – see Claim of alleged racial discrimination by AHPRA and Paramedicine Board dismissed (January 16, 2025).   In that post I explained that Mr Bolinda had lodged a complaint alleging that the requirement that he complete English language testing was discriminatory given that he had completed all his education in English but not in a ‘recognised country’.  The allegation in substance was that the requirement was based on his race and not on a need to confirm his English language proficiency.

The complaint was dismissed by the Human Rights Commission.  Mr Balinda then applied to the Federal Circuit and Family Court of Australia (the FedCFamC) for permission to commence legal proceedings. The leave of the court was required because of the Australian Human Rights Commission Act 1986 (Cth) s 46PO(3A). The application was dismissed by Young J.

In Balinda v Australian Health Practitioner Regulation Agency [2025] FCA 1173 (19 September 2025) Mr Balinda sought to appeal the decision of Young J. This application was also dismissed but, at least from a lawyer’s point of view, very interesting reasons.

The appeal to the Federal Court was heard by a single judge (Bennett J). The Federal Court has limited power to hear appeals from the FedCFamC. Section 24(1AA) of the Federal Court of Australia Act 1976 (Cth) says that there is to be no appeal ‘from a judgment referred to in [section 24] paragraph (1)(a), (d) or (e) if the judgment is:… a determination of an application of the kind mentioned in subsection 20(3)’.   Section 24(1)(d) refers to (emphasis added):

… appeals from judgments of the Federal Circuit and Family Court of Australia (Division 2) exercising original jurisdiction under a law of the Commonwealth other than:

(i) the Family Law Act 1975; or

(ii) the Child Support (Assessment) Act 1989; or

(iii) the Child Support (Registration and Collection) Act 1988; or

(iv) regulations under an Act referred to in subparagraph (i), (ii) or (iii);

Section 20(3) refers to an application ‘for leave or special leave to institute proceedings in the Court’.

So that very convoluted story means that where the FedCFamC considers an application for ‘leave to institute proceedings’ (s 20(3)) under a Commonwealth law other than the family law provisions listed in s 24(1)(d), there can be no appeal to the Federal Court (s 24(1AA)).  Mr Balinda’s application to the FedCFamC had been an application for leave to commence proceedings being an appeal from the Human Rights Commission.  Given that it was ‘an application of the kind mentioned in s 20(3)’ it was caught by s 24(1AA) and there was no jurisdiction to hear an appeal.

What is interesting is Bennett J’s comments at [9]-[10] where she said:

Until recently, such an appeal was competent before a single judge because of the decision of the Full Court of the Federal Court in Cement Australia Proprietary Limited v Australian Competition and Consumer Commission [2010] FCAFC 101; 187 FCR 261 (Keane CJ, Gilmour and Logan JJ). Certainly, the matter progressed to this point and timetabling orders were made, submissions exchanged and affidavits filed on the basis of that authority.

However, on 4 September 2025, the Full Court handed down its decision in Praljak v the Office of the Australian Information Privacy Commission [2025] FCAFC 126 (Praljak). In that case, the Full Court, comprising of Mortimer CJ, Colvin and Thawley JJ concluded (at [48]):

Given the plain language of the text and this legislative history and statutory context, s 24(1AA)(a) should be construed as focussing attention on the kind of application which was determined. It precludes appeals from “a determination of an application of the kind mentioned” in s 20(3). If the application was of a kind identified in s 20(3), then s 24(1AA)(a) operates to prevent an appeal from a determination of that application. There is no power to entertain an appeal from a judgment which is “a determination of an application of the kind mentioned” in s 20(3), or to grant leave to bring such an appeal.

In other words when Mr Balinda filed his appeal the courts and the lawyers all believed the Court did have jurisdiction to hear the appeal, but on 4 September 2025 the Full Federal Court delivered a judgment that was a binding precedent confirming that the Federal Court did not have the power to hear an appeal in these circumstances.  Her Honour concluded (at [20]-[22]):

The Primary Decision was made by a judge of the Federal Circuit and Family Court of Australia (Division 2), exercising jurisdiction under a law of the Commonwealth. Thus, it is an appeal of a kind mentioned in s 24(1)(d), which is therefore subject to s 24(1AA).

Section 24(1AA) is clear that an appeal must not be brought from a judgement referred to in paragraph (1)(d) if it is of a kind mentioned in s 20(3). Because the Primary Decision is a decision on an application for leave to institute proceedings in the Court … it falls within the terms of s 20(3)(a).

The appeal is therefore incompetent…

Conclusion

The outcome was the result of a very technical application of the law.  The court did not address the merits of Mr Balinda’s claim as it was held that there was no jurisdiction to hear an appeal.   The irony is that when he lodged his appeal everyone thought the court did have the jurisdiction to hear the matter.  It was only after the decision on 4 September 2025 that the law was conclusively determined in a way that was averse to Mr Balinda’s case.  It’s not so much that there was a change in the law (because the text of the Act did not change) but there was a change in the understanding of the law, delivered as a binding precedent.   And that change meant the court had to recognise that it did not have jurisdiction to hear the appeal hence the case was dismissed.

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.