Affairs

[2005] FCAFC 228

FEDERAL COURT OF AUSTRALIA

Carreon v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCAFC 228

Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Migration Act 1958 (Cth), s 43

JASON CARREON v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID 672 OF 2005

SUNDBERG, MARSHALL AND MERKEL JJ
3 NOVEMBER 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 672 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	JASON CARREON APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	SUNDBERG, MARSHALL & MERKEL JJ
DATE OF ORDER:	3 NOVEMBER 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.Leave to appeal is refused.

2.The appellant pay the respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 672 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	JASON CARREON APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	SUNDBERG, MARSHALL & MERKEL JJ
DATE:	3 NOVEMBER 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT

1. Mr Jason Carreon is aggrieved by the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, as affirmed by the Migration Review Tribunal, to refuse visas to his elderly parents and his brother to enable them to remain in Australia.  He claims that the decision is in breach of the age discrimination provisions of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). He sought an order from the Court, in the nature of mandamus, requiring the Minister to grant a visa to his parents and his brother.

2. The primary judge dismissed Mr Carreon’s application. He upheld an objection to competency raised by the Minister’s solicitors. He referred to s 43 of the Migration Act 1958 (Cth) which provides that nothing done in relation to the administration of that Act is made unlawful by the part of the Act in which s 43 is found. He also said that the Court only has jurisdiction to deal with a matter under the HREOC Act where there has been a prior complaint to the Human Rights and Equal Opportunity Commission and the hearing of the complaint has been terminated by the Commission. Further, the primary judge found that s 116 of the Constitution, dealing (amongst other things) with freedom of religion did not confer any right on Mr Carreon to bring a proceeding in the Court.

3. His Honour observed that Mr Carreon and his parents and brother, sought a review in the Migration Review Tribunal of the refusal to grant the relevant visas.  No application for judicial review appears to have been made from the Tribunal’s decision:  see Carreon, Proceso [2004] MRTA 799, 12 February 2004.

4. The judgment below is an interlocutory one.  Leave to appeal is required but no such application has been made.  We are content to treat Mr Carreon’s agitation of the matter before us as an application for leave to appeal.  However we consider that leave to appeal should be refused.  Mr Carreon did not identify any error in the reasons of the primary judge.  The primary judge’s decision to uphold the notice of objection to competency is unexceptional and soundly based. 

5. Mr Carreon sought the joinder of his parents and his brother as respondents to the appeal.  They were not party to the proceeding instituted by Mr Carreon and no useful purpose would be served by adding those persons as parties.  In particular it is not suggested that they could raise and matter not raised by Mr Carreon.  In the circumstances we are not satisfied that it is appropriate to join Mr Carreon’s parents and brother as respondents.

6. It is appropriate to order as follows:

• Leave to appeal is refused.

• The appellant pay the respondent’s costs of the application.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sundberg, Marshall and Merkel.

Associate:

Dated:             3 November 2005

McKenzie friend for the Appellant:	Mr D O’Bryan
Counsel for the Respondent:	Mr C Horan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 November 2005
Date of Judgment:	3 November 2005