Avo17 v Minister for Immigration

[2018] FCCA 3073

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVO17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3073

Catchwords:

MIGRATION – Application for judicial review – protection application – whether applicant was an unauthorised maritime arrival – Ashmore and Cartier Islands – no matters of principle – writ issued.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

DBB16 v Minister for Immigration & Anor [2017] FCCA 375
DBB16 v Minister for Immigration and Border Protection (No:NSD354/2017)

Applicant: AVO17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 389 of 2017

Judgment of: Judge Riethmuller

Hearing date: 30 August 2018

Date of Last Submission: 30 August 2018

Delivered at: Melbourne

Delivered on: 30 August 2018

REPRESENTATION

Solicitors for the Applicant: WLW Migration Lawyers

Solicitors for the First Respondent: DLA Piper Australia

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 of Australia Gazette No GN 3 on 23 January 2002 is invalid.

2. The Applicant is no 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 First Respondent dated 26 September 2016.

THE COURT ORDERS THAT:

1. A writ of certiorari issue quashing the decision of the Second Respondent made on 3 February 2017.

2. The First Respondent pay the Applicant’s costs fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 389 of 2017

AVO17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

1. In this case, the applicant, it seems, was rescued at sea in the vicinity of Ashmore Islands.  For the reasons given in DBB16 v Minister for Immigration & Anor [2017] FCCA 375 at first instance (and which has been upheld on appeal: see DBB16 v Minister for Immigration and Border Protection (No:NSD354/2017)), it is a case where the application ought to be allowed and constitutional writs issued. 

2. I note for the record that the Minister formally opposes the application on the basis that it is contemplated there may be an appeal against DBB16 and, therefore, the Minister wants to leave open the possibility of appealing the decisions that have followed it.  That is not a basis for refusing to deal with a matter that is currently before me. 

3. In the circumstances, for the reasons set out in DBB16 which the parties accept apply equally to the circumstances of this case, I therefore order the issue of constitutional writs quashing the decision of the Administrative Appeals Tribunal made 3 February 2017.  I will issue the declarations in terms of paragraphs 3 to 5 of the application in a case filed 24 August 2018. 

4. I will not issue a writ of mandamus at this stage, presuming that the Minister will appropriately deal with the matter, now that the declarations have been made as to the circumstances. 

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  29 October 2018