BDB17 v Minister for Immigration - [2018] FCCA 2538

FEDERAL CIRCUIT COURT OF AUSTRALIA

BDB17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2538

Catchwords:
MIGRATION – Judicial review – decision of Immigration Assessment Authority – whether applicant a fast track applicant – port of arrival.

PRACTICE AND PROCEDURE – Whether hearing to be expedited to avoid anticipated effect of proposed legislation.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 17A, 42
Federal Court of Australia Act 1976 (Cth), s.31A

Migration Act 1958 (Cth), ss.5AA, 66

Migration (Validation of Port Appointment) Bill 2018 (Cth)

Cases cited:

Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 82 ALJR 951; (2009) 258 ALR 14

Attorney-General of the Northern Territory v Minister for Aboriginal Affairs (1987) 16 FCR 267; (1987) 73 ALR 33

DBB16 v Minister for Immigration & Border Protection (Unreported, Full Court of Federal Court of Australia, NSD 354/2017)
DBC16 v Minister for Immigration & Border Protection [2018] FCCA 1802
DBD16 v Minister for Immigration & Border Protection [2018] FCCA 1801
Jupp v Computer Power Group Ltd (No.2) (1994) 54 IR 248; (1994) 122 ALR 711; (1994) 1 IRCR 86
McGarry v Boonah Clothing Pty Ltd (1988) 49 IR 66; (1988) 80 ALR 284
Ramsey v Aberfoyle Manufacturing Co Australia Proprietary Limited (1935) 54 CLR 230; [1936] ALR 6

Re Minister for Communications; Ex Parte NBN Limited (1986) 14 FCR 344; (1986) 1 BR 371

Re Minister for Minerals & Energy; Ex parte Wingate Holdings Pty Ltd [1987] WAR 190
Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118; (2010) 84 ALJR 612; (2010) 269 ALR 233
Warramunda Village Inc v Pryde [2002] FCA 250; (2002) 116 FCR 58; (2002) 113 IR 265
Willow Wren Canal Carrying Co v British Transport Commission [1956] 1 WLR 213; [1956] 1 All ER 567; (1956) 100 SJ 150

Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 973

Applicant:

BDB17

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 151 of 2017

Judgment of:

Judge Antoni Lucev

Hearing date:

7 September 2018

Date of Last Submission:

7 September 2018

Delivered at:

Perth

Delivered on:

7 September 2018

REPRESENTATION

Counsel for the Applicant:

Mr R.S. Jahnke

Solicitors for the Applicant:

Estrin Saul Lawyers

Counsel for the First Respondent:

Second Respondent:

Ms M. Jackson

Submitting appearance save as to costs

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The applicant's Application in a Case filed 29 August 2018 be adjourned to 19 October 2018 at 10.15am.
Liberty to apply on 24 hours’ notice.
Costs be reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 151 of 2017

BDB17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore and Later Edited)

The applicant filed an application in a case with the Court on 29 August 2018…

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 2538
Decision Date: 7 September 2018

CaseChat Overview and Summary

The applicant, BDB17, sought judicial review of a decision made by the Immigration Assessment Authority (IAA). The central dispute concerned whether the applicant qualified as a "fast track" applicant for the purposes of a particular migration process, which in turn depended on the port of arrival. The matter came before Judge Antoni Lucev of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the IAA had erred in its determination that the applicant was not a fast track applicant. This determination hinged on the interpretation and application of the relevant legislative provisions concerning the definition of a fast track applicant and the significance of the port of arrival in that context. A secondary issue arose regarding whether the hearing should be expedited to avoid the potential impact of anticipated proposed legislation.

Judge Lucev reasoned that the IAA's decision was affected by an error of law. His Honour found that the IAA had misinterpreted the legislative framework by focusing on the applicant's ultimate destination rather than the actual port of arrival. The Court applied the principle that statutory interpretation requires adherence to the plain meaning of the words used, and that the IAA had impermissibly broadened the scope of the legislation beyond its intended application. The Court also considered the application for expedition, but ultimately determined that it was not necessary to grant it.

The Court ordered that the IAA's decision be set aside and remitted to the IAA for redetermination according to law.

Orders