Acy18 v Minister for Home Affairs - [2018] FCCA 3057

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACY18 v MINISTER FOR HOME AFFAIRS & ANOR

[2018] FCCA 3057

Catchwords:
MIGRATION – Persecution – review of Immigration Assessment Authority (“IAA”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the applicant was not an unauthorised maritime arrival and so the IAA had no jurisdiction to review the applicant’s case.

Legislation:

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014

Migration Act 1958, ss.5, 5AA, 13, 14, 46A, 66, 473BB, 473CA, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
DBD16 v Minister for Immigration & Anor [2018] FCCA 1801
DBB16 v Minister for Immigration & Border Protection & Anor [2018] FCAFC 178

Applicant:

ACY18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 87 of 2018

Judgment of:

Judge Cameron

Hearing date:

5 September 2018

Date of Last Submission:

5 September 2018

Delivered at:

Sydney

Delivered on:

5 September 2018

REPRESENTATION

Solicitors for the Applicant:

Mr M. Jones of Parish Patience

Counsel for the First Respondent:

Mr G. Johnson

Solicitors for the Respondents:

Mills Oakley

THE COURT ORDERS THAT:

A writ of certiorari removing into this Court to be quashed the purported decision of the second respondent made on 15 December 2017.
The first respondent pay the applicant’s costs fixed in the amount of $7,328.

THE COURT DECLARES THAT:

The decision of the second respondent is void and of no effect.
The applicant is not an “unauthorised maritime arrival” within the meaning of s.5AA of the Migration Act 1958 (“Act”).
The applicant has not been notified pursuant to s.66 of the Act of the decision of the delegate.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 87 of 2018

ACY18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The applicant is a citizen of Bangladesh who arrived in Australia by boat on 9 January 2013 without a visa permitting him to enter and stay in Australia. The first respondent (“Minister”) concedes that the applicant arrived in Australia at the Ashmore and Cartier Islands which are off the north-west coast of Australia. It appears from the facts that the applicant was picked up while on the water at the Ashmore and Cartier Islands territory.
In March 2016 the applicant lodged an application for a Safe Haven Enterprise Visa with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Bangladesh because of his political opinion and his membership of a particular social group. On 8 May 2017 a delegate of the Minister refused the applicant’s application and referred his matter for review to the second respondent (“IAA”) on the basis that the applicant was a “fast track applicant”. The applicant was unsuccessful before the IAA and has applied to this Court for judicial review of the IAA’s decision.
In these judicial review proceedings the Court’s task is to determine whether the IAA’s decision is affected by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 3057
Decision Date: 5 September 2018

CaseChat Overview and Summary

This case concerned an application for judicial review of a decision by the Immigration Assessment Authority (IAA) to refuse a protection visa. The applicant, Acy18, argued that the IAA lacked jurisdiction to review the delegate's decision because he was not an "unauthorised maritime arrival" as defined by the *Migration Act 1958* (Cth). The applicant contended that his arrival by boat at the Ashmore and Cartier Islands Territory did not constitute entry into the "migration zone" because the waters of the Territory were not a "proclaimed port" as required by the definition of "port" in section 5 of the Act. Consequently, he argued, he did not become an unauthorised maritime arrival upon entry and was therefore not subject to the IAA's fast-track review process under Part 7AA of the Act.

The central legal issue before the court was whether the applicant qualified as an "unauthorised maritime arrival" for the purposes of the IAA's jurisdiction. This required determining whether the waters of the Ashmore and Cartier Islands Territory constituted a "port" within the meaning of section 5 of the Act, and consequently, whether the applicant entered the "migration zone" at that location. If he did not enter the migration zone at the Territory, the court had to consider whether his subsequent arrival in Darwin, which was not an excised offshore place, meant he never became an unauthorised maritime arrival.

The court considered the definition of "unauthorised maritime arrival" in section 5AA of the Act, which requires entry into Australia by sea at an excised offshore place. The applicant argued that the Commonwealth of Australia Gazette No.GN3 of 23 January 2002, which purported to appoint the waters within the Territory as a "proclaimed port," was invalid because those waters were not a "port" in the first place. The court noted that the definition of "port" in section 5(5)(a) requires the place to be a port. The applicant's argument was that the gazetted waters were not a port, and therefore the purported appointment was ineffective. This meant he did not enter the migration zone when he arrived in the Territory, and his subsequent arrival in Darwin did not make him an unauthorised maritime arrival.

The court found that the applicant had not entered the migration zone when he arrived in the waters of the Ashmore and Cartier Islands Territory. Therefore, he was not an unauthorised maritime arrival and the IAA did not have jurisdiction to review the delegate's decision. The court ordered that the IAA's decision be set aside.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 66 of the Act relevantly provides in the following terms for the notification of decisions on visa applications:66 Notification of decision (1)When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way. (2)Notification of a decision to refuse an application for a visa must:…(d)if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500—state: (i) that the decision can be reviewed; and (ii) the time in which the application for review may be made; and (iii) who can apply for the review; and (iv) where the application for review can be made; and (e)in the case of a fast track reviewable decision—state that the decision has been referred for review under Part 7AA and that it is not subject to review under Part 5 or Part 7; and Part 7AA of the Act sets out the IAA fast track process. Section 473CA is found in that part and provides that the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made. The applicant made various claims in his statutory declaration dated 10 March 2016 and his submissions provided to the Department on the same date. He also gave oral evidence of an entry interview on 24 January 2013 and at a protection visa interview before the delegate on 14 March 2017. The IAA concluded that it was not satisfied that the applicant is a person whom Australia has protection obligations. It is not necessary to provide any more detail in these reasons as to the applicant’s claims or the IAA’s reasons for its decision as this matter will be decided by the jurisdictional point which the applicant has raised in the third ground of his application. In his amended application the applicant alleged:1.The failure of the Authority to exercise, or consider the exercise of, its power under s.473DC of the Migration Act 1958 was legally unreasonable. Particulars(a)The Authority decided the review on issues which were not raised by the delegate and which the Applicant could not reasonably have been expected to be aware of. It did not consider whether to exercise its power under s.473DC in respect of those issues. (b)The Authority relied on information concerning the Applicant’s birth certificate and the voter enrolment laws of Bangladesh which had not been considered by the delegate and which the Authority could have given to the Applicant for comment or response. It did not consider whether to exercise its power under s.473DC in respect of that information. 2.The Authority denied procedural fairness to the Applicant. ParticularsAs for ground 1.3.The Authority did not have jurisdiction to review the delegate’s decision. Particulars The Applicant arrived by boat at the Ashmore and Cartier Islands Territory (“the Territory”) and were [sic] taken from there to Darwin on or about 13 January 2013. Section 5AA of the Act defines an “unauthorised maritime arrival” as an unlawful non-citizen who “entered Australia by sea” at an excised offshore place” at any time after that place became excised, or at any other place on or after 1 June 2013. The term “entered Australia by sea” in s.5AA(2) requires the person to enter the migration zone. The migration zone as defined in s.5 does not include sea within the limits of a State or Territory that is not in a port, meaning a “proclaimed port”. The purported appointment of the waters within the Territory as a “proclaimed port” within the meaning of s.5(5)(a) of the Act by Commonwealth of Australia Gazette No.GN3 of 23 January 2002 was invalid because those waters were not a “port”, and therefore the Applicant did not enter the “migration zone” when he entered those waters. He did not enter the migration zone until he arrived in Darwin, which was not an “excised offshore place”. As a result he did not become “unauthorised maritime arrivals” on entry, and was not subject to the review provisions of Part 7AA of the Act.

Ratio Decidendi

Legal Principle Established

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