FEDERAL COURT OF AUSTRALIA

Carreon v The Honourable Amanda Vanstone [2005] FCA 865

JASON CARREON  v  THE HONOURABLE AMANDA VANSTONE

V426 of 2005

RYAN J

27 JUNE 2005

MELBOURNE

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs, to be taxed in default of agreement.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant who represents himself has, on 9 May 2005, filed an application in this Court against the Honourable Amanda Vanstone (“the Minister”).  The first part of the application is in these terms;

‘Form 5 Application and

Form 167        Claim under the Human Rights and Equal Opportunity Commission Act 1986 Schedule 2 alleging unlawful discrimination

(Order 81, rule 5)

AGE DISCRIMINATION ACT 2004 - SECT 31

Administration of Commonwealth laws and programs

(1)       It is unlawful for a person who:

(a)       performs any function or exercises any power under a Commonwealth law or forthe purposes of a Commonwealth program; or

(b)       has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program; to discriminate against another person on the ground of the other person’s age in the performance of that function, the exercise of that power or the fulfilment of that responsibility.

Definition

(2)       In this section:

“Commonwealth program” means a program conducted by or on behalf of the Commonwealth Government.’

2                     “Form 167” is apparently a reference to the form having that number appended to the Rules of this Court, O 81 r 5 of which provides;

‘(1)      A proceeding alleging unlawful discrimination must be commenced by filing an application in accordance with Form 5.

Note   See section 33C of the Federal Court of Australia Act 1976 and Order 6, rule 2 in relation to representative proceedings and joinder of parties.

(2)       The application must:

(a)       be accompanied by a claim in accordance with Form 167; and

(b)       include details of any claim that is made in addition to the allegation of unlawful discrimination.’

3                     Form 5 prescribes a standard form of application for initiating proceedings in this Court.  It requires an applicant to state briefly the nature of the subject of the application and the legislative basis of the Court’s jurisdiction to hear it and grant the relief sought.

4                     The introductory part of the application which is reproduced above seems to suggest that the Minister, in contravention of s 31 of the Age Discrimination Act 2004 (Cth) (“the Act”) has discriminated against another person in the exercise of some statutory power or performance of some statutory function.  The application is made more specific by the next two paragraphs which recite;

‘The application relates to discrimination against the applicant insofar as he has been and is entitled to have his parents reside in Australia at his expense and the order of the minister that they be required to return to the Phillipines is offensive to a law made by the Parliament of the Commonwealth, namely the International Covenant on Civil and Political Rights which by Section 5 Commonwealth of Australia Constitution Act 1900 and Sections 106-109 Constitution should be binding upon the said Minister for Immigration and Multi-Cultural Affairs, and should qualify the way all Acts of Parliament are administered by a Minister. It also offends section 31 AGE DISCRIMINATION ACT 2004.

The applicant is a Christian and seeks to honour his father and mother and brother by providing for them here in Australia and having his family all together, in their twilight years. This right is granted by Section 116 Constitution because the State of Australia cannot impose observances upon its citizens in conflict with their religious convictions.’

5                     The basis of the Court’s jurisdiction to entertain the application is said to be provided by the Act, s 31 of which provides;

‘Administration of Commonwealth laws and programs

(1)       It is unlawful for a person who:

(a)       performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program; or

(b)       has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program;

to discriminate against another person on the ground of the other person’s age in the performance of that function, the exercise of that power or the fulfilment of that responsibility.

Definition

(2)       In this section:

Commonwealth program means a program conducted by or on behalf of the Commonwealth Government.

6                     However, s 43 of the Act provides;

‘Migration and citizenship etc.

(1)       This Part does not make unlawful anything done by a person in relation to the administration of:

(a)        the Migration Act 1958; or

(b)        the Immigration (Guardianship of Children) Act 1946; or

(c)        a regulation or any other instrument made under either of those Acts.

(2)       This Part does not make unlawful anything done by a person in direct compliance with:

(a)        the Australian Citizenship Act 1948; or

(b)        the Immigration (Education) Act 1971.’

7                     As well, jurisdiction is said to be conferred by s 39B(1A)(b) of the Judiciary Act 1903 (Cth) which confers on this Court jurisdiction in all matters arising under and involving the interpretation of the Constitution.

8                     The relief which the applicant clams is “equal treatment for his family to that which has been granted to countless other families over a long period of time, providing for families to be reunited in Australia.”  As well, the applicant seeks an order in the nature of mandamus requiring the Minister to grant a visa to his mother, father and brother allowing them to stay in Australia indefinitely as his dependants.  The applicant also seeks an interlocutory injunction restraining the Minister from deporting his father, mother and brother from Australia.  In support of his application the applicant has affirmed an affidavit which contains, amongst others, the following paragraphs;

‘4.        My parents are 78 years old, and have grandchildren here and it is “Wednesbury” unreasonable to require them to leave my care here in Australia.

5.         It is reasonable to expect the Minister for Immigration and Multi-Cultural Affairs to respect and maintain all the laws of the Commonwealth of Australia and not pick those that she chooses and ignore those she does not.

6.         Time is of the essence and it is essential that the matter be filed and the interlocutory orders made so that the Human Rights and Equal Opportunity Commission may consider the matter.  My parents have been asked to leave Australia.’

9                     The Minister has filed a notice of objection to the competency of the application.  In support of that objection, she contends, first, that the application does not identify any decision by the Minister which is reviewable in this Court.  Although it seems that the applicant’s primary complaint is against the Minster’s refusal to grant to any of his father, mother or brother a visa under the Migration Act 1958 (Cth), (“the Migration Act”), by force of s 43(1)(a) of the Act nothing done in relation to the administration of the Migration Act, is made unlawful by the Act.

10                  It was next pointed out on behalf of the Minister that an application can only be made to this Court if a complaint as to the subject of the application has been terminated by the Human Rights and Equal Opportunity Commission (“HREOC”);  see s 46PO(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) which provides;

‘If:

(a)       a complaint has been terminated by the President under section 46PE or 46PH;  and

(b)       the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.’

11                  However, it is clear that no application has been made to, let alone terminated by, HREOC, and, accordingly, no right has been conferred on any affected person to apply to this Court alleging unlawful discrimination. 

12                  It was next pointed out that the International Covenant on Civil and Political Rights has not been incorporated into Australian municipal law by any statute.  Consistently with the reasoning of the High Court in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, it is not enforceable by order of this Court.

13                  Section 116 of the Constitution, which has also been invoked by the applicant, provides;

‘The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.’

14                  However, that provision is a restraint on the legislative and executive power of the Commonwealth.  It does not confer on the applicant or any other citizen any positive right.  It is confined to protecting the citizen from the purported establishment of any religion, the imposition of any religious observance or a prohibition on the free exercise of any religion and from the purported imposition of a religious test for appointment to an office or public trust under the Commonwealth.  In Attorney-General (Vic) ex rel Black v The Commonwealth (1981) 1946 CLR 559, Stephen J observed, at 605;

‘Some things about the section are self-evident.  It is not, in form, a constitutional guarantee of the rights of individuals;  with it may be contrasted s.117 which, like s.80, at least gives promise of guaranteed rights, however illusory that promise may so far have provide in practical operation:’

15                  The applicant has not advanced any submission which compels the rejection of any of the Minister’s contentions in support of her objection to competency.  Each of those objections is cogent and individually or collectively requires that the objection be upheld.  It follows that the claim for interlocutory relief must also fall.  That application for interlocutory relief was in these terms in the applicant’s application dated 9 May 2005;

‘The applicant claims an injunction against any order that the three persons, Processo Carreon, his wife Martina Carreon and Josalito Carreon be required to leave Australia until such time as a court has had time to judicially review the minister’s decision in the light of binding federal legislation.’

16                  As well, the applicant has signally failed to identify any decision of the Minister which he seeks to review.  He has said from the Bar table that he sought a review by the Migration Review Tribunal of some decision but that review was refused more than 12 months ago.  The applicant further says that he sought a reconsideration by the Minister of whatever application had been made on behalf of his parents and brothers but that too was refused.  In the circumstances, I can discern no answer to the Minister’s objection to competency.  The application must therefore be dismissed with costs.

Associate:

Dated:              30 June 2005