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:

1. A writ of certiorari removing into this Court to be quashed the purported decision of the second respondent made on 15 December 2017.

2. The first respondent pay the applicant’s costs fixed in the amount of $7,328.

THE COURT DECLARES THAT:

1. The decision of the second respondent is void and of no effect.

2. The applicant is not an “unauthorised maritime arrival” within the meaning of s.5AA of the Migration Act 1958 (“Act”).

3. 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

1. 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.

2. 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.

3. In these judicial review proceedings the Court’s task is to determine whether the IAA’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

4. For the reasons which follow, the IAA’s decision will be set aside and the orders and declarations sought by the applicant in his amended application, save for prayer 5, will be made.

FAST TRACK REVIEW LEGISLATIVE FRAMEWORK

1. Section 5AA(1) of the Act relevantly provides that a person is an “unauthorised maritime arrival” if he or she entered Australia by sea at an excised offshore place at any time after the excision time for that place and the person became an unlawful non-citizen because of that entry. In respect of each of the elements of that test:

   a)between them, ss.13 and 14 of the Act provide that a non-citizen in the migration zone who does not hold a visa which is in effect is an unlawful non-citizen;

   b)s.5AA(2) of the Act provides that a person enters the migration zone by sea by arriving in Australia other than by aircraft;

   c)s.5(1) of the Act provides that, relevantly, the migration zone includes the Australian States and Territories “but does not include sea within the limits of a State or Territory but not in a port";

   d)between them ss.5(1) and 5(5) relevantly provide that a “port” is a port in an external territory which the Minister has appointed as a “proclaimed port”; and

   e)s.5(1) of the Act prescribes the Territory of Ashmore and Cartier Islands, amongst other places, as an excised offshore place whose excision time was 2pm on 8 September 2001 by the legal time in the Australian Capital Territory.

2. Ostensibly, the applicant is an unauthorised maritime arrival.

3. Section 46A(1) of the Act provides that an unauthorised maritime arrival cannot make a valid application for a visa. However, s.46A(2) of the Act provides that the Minister may, in his or her discretion, lift the bar on an applicant making such an application.

4. On 18 April 2015 the Act was amended to provide for a “fast track review” process in relation to certain unauthorised maritime arrivals: sch.4 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. Section 5(1) of the Act relevantly defines a “fast track applicant” as, relevantly, a person:

   (i)who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and

   (ii)to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and

   (iii)who has made a valid application for a protection visa in accordance with the determination;

5. Section 5(1) also defines a “fast track decision” as a decision to refuse to grant a protection visa to a fast track applicant. A “fast track reviewable decision” is relevantly defined as a fast track decision in relation to a fast track review applicant: s.473BB of the Act. Certain fast track applicants are excluded from the fast track review process but it has not been suggested that the applicant would have been such a person.

6. 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

7. 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.

BACKGROUND FACTS

1. 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.

2. 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.

PROCEEDINGS IN THIS COURT

1. 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.

   Particulars

   As 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.

CONSIDERATION

1. Because the applicant is to be successful in relation to the third ground of the amended application, it is not necessary to consider the first two grounds.

2. In DBD16 v Minister for Immigration & Anor [2018] FCCA 1801, Judge Smith held that the Minister’s purported appointment on 21 December 2001 of specified waters within the Ashmore and Cartier Islands territory as a “proclaimed port” was invalid. In DBB16 v Minister for Immigration & Border Protection & Anor [2018] FCAFC 178, the Full Court of the Federal Court made declarations on 6 August 2018 in the following terms:

   THE COURT DECLARES THAT:

   (1) The purported appointment of a port as a proclaimed port, an area of waters within the Territory of Ashmore and Cartier Islands, by notice published in the Commonwealth Gazette No GN 3 on 23 January 2002 is invalid.

   (2)The applicant is not an “unauthorised maritime arrival” within the meaning of s 5AA of the Migration Act 1958 (Cth).

   (3)The applicant has not been notified pursuant to s 66 of the Migration Act 1958 (Cth) of the decision of a delegate of the Minister for Immigration and Border Protection dated 12 July 2016.

3. It would seem that the Full Court has at the very least approved the outcome in DBD16 and presumably Judge Smith’s reasoning as well.

4. The present case is relevantly on all fours with the DBD16 case, as the Minister conceded at the hearing of this application. In the circumstances, it is appropriate to conclude that the applicant was not a fast-track review applicant and that the IAA had no jurisdiction to review the decision of the delegate.

5. Further, the delegate’s letter notifying the applicant of her decision did not advise the applicant of his rights to seek review of that decision by the Administrative Appeals Tribunal (“AAT”). For that reason, the delegate’s notification to the applicant of the outcome of his visa application was not a valid notification for the purposes of s.66 of the Act.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  26 October 2018