Acy18 v Minister for Home Affairs

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.