ASF17 v Minister for Immigration - [2017] FCCA 2498

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASF17 v MINISTER FOR IMMIGRATION

[2017] FCCA 2498

Catchwords:
MIGRATION – Application for Safe Haven Enterprise Visa – review of decision of delegate of the Minister – excluded fast track applicant – whether applicant satisfied criteria for grant of visa – whether delegate erred by applying its finding under s.5J(6) of the Migration Act 1958 (Cth) to the criterion in sub-s.36(2)(aa) of the Act – provision of bogus document – whether reasonable explanation was provided for bogus document – whether delegate was satisfied explanation for bogus document was reasonable – delegate’s decision affected by error – Court’s discretion exercised to refuse to grant relief – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5AA, 5AH, 5H, 5J, 36, 46A, 65, 91R, 91WA, 338, 411, 473BB, 473BC, 473BD, 473CA, 476, 500, pts.5, 7 and 7AA

Cases cited:
AIB16 v Minister for Immigration & Border Protection [2017] FCAFC 163
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353; [1949] HCA 26

BGM16 v Minister for Immigration & Border Protection [2017] FCAFC 72
George v Rockett (1990) 170 CLR 104; [1990] HCA 26
Minister for Immigration & Citizenship v SZJGV (2009) 238 CLR 642; [2009] HCA 40
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30

R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407; [1994] HCA 42

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57

Sun v Minister for Immigration & Border Protection (2016) 243 FCR 220; [2016] FCAFC 52

SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26

Applicant:

ASF17

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

PEG 99 of 2017

Judgment of:

Judge Smith

Hearing date:

16 August 2017

Date of Last Submission:

28 September 2017

Delivered at:

Sydney and Perth by video-link

Delivered on:

2 November 2017

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondent:

Mr P Macliver

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 99 of 2017

ASF17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of a delegate of the Minister for Immigration and Border Protection made on 16 January 2017. The delegate’s decision was to refuse to grant the applicant a protection visa. The delegate also found that the applicant was an “excluded fast track applicant” within the meaning of the Migration Act 1958 (Cth) (Act).
There are two broad issues in the proceedings:
a)first, whether the applicant is an “excluded fast track applicant”; and
b)secondly, whether there was any jurisdictional error that affected the delegate’s decision.
It is necessary to determine both of those issues as the Court’s jurisdiction only arises in respect of the delegate’s decision if, the applicant was an “excluded…

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: [2017] FCCA 2498
Decision Date: 2 November 2017

CaseChat Overview and Summary

The applicant, ASF17, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned whether a decision to refuse to grant ASF17 a protection visa was a "primary decision" for the purposes of review under the Act. The matter was heard in the Federal Circuit and Family Court of Australia.

The court was required to determine whether the Minister's decision to refuse ASF17 a protection visa was a "primary decision" as defined by section 476(4) of the Act. This involved considering the definitions of "primary decision," "fast track decision," "fast track applicant," and "unauthorised maritime arrival" within the Act, and whether ASF17 met the criteria for each. Specifically, the court had to ascertain if ASF17's entry into Australia by sea at Christmas Island qualified them as an unauthorised maritime arrival, and subsequently, a fast track applicant.

The court reasoned that ASF17 entered Australia by sea at Christmas Island on 13 July 2013, which is an excised offshore place within the migration zone. This entry occurred after the excision time for Christmas Island, and ASF17 became an unlawful non-citizen as a result of this entry. Furthermore, ASF17 received a written notice under section 46A(2) of the Act on 2 September 2015, which determined that section 46A(1) did not apply to their protection visa application, and they subsequently made a valid application. Based on these facts, the court concluded that ASF17 was a fast track applicant. As a fast track decision is not reviewable under Parts 5 or 7 or section 500 of the Act, the decision to refuse ASF17 a protection visa was not a "primary decision" for the purposes of section 476(4).

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 476(4) of the Act sets out the meaning of a “primary decision” as follows: primary decision means a privative clause decision or purported privative clause decision:(a)that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or(b)that would have been so reviewable if any application for such review had been made within a specified period; or(c)that has been, or may be, referred for review under Part 7AA (whether or not it has been reviewed. (Emphasis in original) A “fast track decision” is not reviewable either under pts.5 or 7 or s.500 of the Act: sub-ss.338(1)(d), 411(2)(c) and s.500(3). A “fast track decision” is defined under s.5(1) of the Act to mean a decision to refuse to grant a protection visa to a fast track applicant, other than a decision to refuse to grant such a visa for a number of specified reasons not relevant here. A “fast track applicant” is defined by s.5(1) of the Act to mean:fast track applicant means:(a)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; or(b)a person who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(b).(Emphasis in original) An “unauthorised maritime arrival” is defined by s.5AA(1) of the Act as follows:(1)For the purposes of this Act, a person is an unauthorised maritime arrival if:(a)the person entered Australia by sea:(i) at an excised offshore place at any time after the excision time for that place; or(ii) at any other place at any time on or after the commencement of this section;(b)the person became an unlawful non-citizen because of that entry; and(c)the person is not an excluded maritime arrival. (Emphasis in original) A person entered Australia by sea, if amongst other things, “the person entered the migration zone except on an aircraft that landed in the migration zone”: s.5AA(2) of the Act. The “migration zone” is defined by s.5(1) of the Act to mean the area consisting of the States, Territories, Australian resource installations and Australian sea installations. The applicant arrived by sea at Christmas Island on 13 July 2013[1]. Christmas Island is an excised offshore place in the migration zone. That means that the applicant is an unauthorised maritime arrival.[1] That is after the excision time in respect of Christmas Island which was 2:00pm on 8 September 2001 by legal time in the Australian Capital Territory. On 2 September 2015, the applicant was given written notice under s.46A(2) of the Act determining that s.46A(1) did not apply to an application by him for a protection visa. The applicant consequently made a valid application for a protection visa in accordance with the determination. For that reason, the applicant was a fast track applicant within the meaning of s.5(1) of the Act.

Ratio Decidendi

Legal Principle Established

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