Carreon v The Honourable Amanda Vanstone [2005] FCA 865

Carreon v The Honourable Amanda Vanstone [2005] FCA 865

The application was incompetent because it did not identify a reviewable decision, any alleged discrimination arising from administration of the Migration Act 1958 (Cth) was excluded from unlawfulness by s 43(1)(a) of the Age Discrimination Act 2004 (Cth), no HREOC complaint had been terminated so as to permit an application under s 46PO(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), the ICCPR was not enforceable as Australian municipal law, and s 116 of the Constitution did not confer the asserted positive right. The interlocutory application necessarily failed.

Jurisdiction
Australia
Judgment Date
27 June 2005
Procedural Posture
Application Alleging Unlawful Discrimination and Seeking Mandamus and Interlocutory Injunctive Relief in Relation to Visas and Removal From Australia / Respondent's Notice of Objection to the Competency of the Application; Final Dismissal
Outcome
Application dismissed with costs.
Legal Topics
['age Discrimination in Administration of Commonwealth Laws and Programs' 'migration Act Administration Exception Under the Age Discrimination Act 2004 (cth)' 'requirement for Terminated HREOC Complaint Before Federal Court Unlawful Discrimination Application' 'international Covenant on Civil and Political Rights Not Incorporated Into Australian Municipal Law' 'section 116 of the Constitution']
['anti Discrimination Law' 'migration Law' 'administrative Law' 'constitutional Law'] ['age Discrimination in Administration of Commonwealth Laws and Programs' 'migration Act Administration Exception Under the Age Discrimination Act 2004 (cth)' 'requirement for Terminated HREOC Complaint Before Federal Court Unlawful Discrimination Application' 'international Covenant on Civil and Political Rights Not Incorporated Into Australian Municipal Law' 'section 116 of the Constitution']

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Procedural Posture

Application Alleging Unlawful Discrimination and Seeking Mandamus and Interlocutory Injunctive Relief in Relation to Visas and Removal From Australia / Respondent's Notice of Objection to the Competency of the Application; Final Dismissal

Legal Issues

  1. 1 ['Whether the application identified a reviewable decision by the Minister.' 'Whether s 43(1)(a) of the Age Discrimination Act 2004 (Cth) excluded anything done in relation to the administration of the Migration Act 1958 (Cth) from being unlawful under the Act.' 'Whether the applicant could bring an unlawful discrimination application in this Court without a complaint having been terminated by HREOC under s 46PO(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).' 'Whether the International Covenant on Civil and Political Rights was enforceable by order of the Court.' "Whether s 116 of the Constitution conferred a positive right supporting the applicant's claim." 'Whether interlocutory injunctive relief should be granted.']

Ratio Decidendi

The application was incompetent because it did not identify a reviewable decision, any alleged discrimination arising from administration of the Migration Act 1958 (Cth) was excluded from unlawfulness by s 43(1)(a) of the Age Discrimination Act 2004 (Cth), no HREOC complaint had been terminated so as to permit an application under s 46PO(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), the ICCPR was not enforceable as Australian municipal law, and s 116 of the Constitution did not confer the asserted positive right. The interlocutory application necessarily failed.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application be dismissed.' "The applicant pay the respondent's costs, to be taxed in default of agreement."]