BQI16 v Minister for Immigration
[2018] FCCA 2342
•23 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BQI16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2342 |
| Catchwords: MIGRATION – Application for summary judgment – whether the applicant is an “unauthorised maritime arrival” – where the applicant entered Australia in Darwin after passing through Ashmore Reef – where the Full Court of the Federal Court of Australia has made a declaration that the purported appointment of a port in the vicinity of Ashmore Reef is invalid – application for summary judgment granted with costs – declarations made – writ of certiorari issued. |
| Legislation: Migration Act 1958 (Cth), ss.5(5), 5, 5AA, 66 Federal Circuit Court of Australia Act 1999 (Cth), s.17A(1) Federal Circuit Court Rules 2001 (Cth), r.13.07, pt.40 |
| Cases cited: DBB16 v Minister for Immigration and Border Protection & Anor NSD354/2016 DBC16 v Minister for Immigration & Anor [2018] FCCA 1802 EPG17 v Minister for Immigration and Border Protection [2018] FCC (PEG552/2017) Spencer v Commonwealth of Australia (2010) 241 CLR 118 Minister for Immigration and Multicultural Affairs v Farshid Kheirollahpoor (2001) FCA 1306 |
| Applicant: | BQI16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 1390 of 2016 |
| Judgment of: | Judge Kirton |
| Hearing date: | 17 August 2018 |
| Date of Last Submission: | 17 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 23 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr McBeth |
| Solicitors for the Applicant: | Clothier Anderson & Associates |
| Solicitors for the Respondents: | Mr Cunynghame of Sparke Helmore |
ORDERS
The applicant have leave to file and serve a second further amended application in the form of annexure “SV-2” to the Affidavit of Sanmati Verma, affirmed and filed on 7 August 2018 (Second Further Amended Application).
DECLARATIONS
A declaration that 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.
A declaration that the applicant is not an “unauthorised maritime arrival” within the meaning of s.5AA of the Migration Act 1958 (Cth).
A declaration that 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 11 April 2016.
FURTHER ORDERS
A writ of certiorari issue quashing the decision of the second respondent.
Pursuant to r.13.07 of the Federal Circuit Court Rules 2001 (Cth) there be summary judgment for the applicant in respect of ground 6 of the Second Further Amended Application.
Order 1 of the Orders made by Judge Kirton on 8 May 2018 be vacated.
The first respondent pay the Applicant’s costs of and incidental to the proceeding as agreed or as taxed pursuant to pt.40 of the Federal Court Rules 2011 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1390 of 2016
| BQI16 |
Applicant
and
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
and
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a Hazara Shia from Afghanistan who arrived in Australia by boat and without a visa in November 2012. The applicant’s entry interview was conducted in Darwin on 2 December 2012.
The applicant made an application for a temporary protection visa on 6 August 2015. The first respondent’s delegate refused the application on 11 April 2016. That decision was then referred to the Immigration Assessment Authority (IAA). The IAA conducted a review of the delegate’s decision and made a decision to affirm it on 26 May 2016 (IAA Decision).
On 30 June 2016 the applicant filed an application in this Court seeking judicial review of the IAA Decision.
On 8 May 2018 this matter came on for hearing. At the commencement of the hearing counsel for the first respondent (Minister) advised that she had been instructed to inform the Court of a preliminary matter. That matter was that the applicant’s point of arrival in the region appeared to have been Ashmore Island. Counsel said that there were two proceedings currently reserved before the Federal Circuit Court and one that had been referred to the Full Court of the Federal Court listed in August, that were challenging the validity of the proclamation of Ashmore and Cartier Islands as a port. As a consequence, if that proclamation was found to be invalid, then the applicants affected would not be fast-track applicants within the meaning in s.5 of the Migration Act 1958 (Cth) (Act).
The matter was stood down whilst counsel for the applicant took instructions. Counsel for the applicant then informed the Court that he was instructed that the applicant did arrive at Ashmore and was taken by Australian authorities to Darwin. Counsel advised that the applicant would be within the class that was affected by the case that was listed before the Full Court of the Federal Court in August. Counsel for the applicant advised the Court that he was nevertheless instructed to request the Court proceed with the hearing and request that I reserve my judgment until the outcome of the Full Court hearing was known.
Counsel for the Minister also advised the Court that she was instructed to request that the hearing proceed. As a result I decided to proceed to hear the application for judicial review and then reserved my decision pending the outcome of the Full Federal Court appeal in DBB16 v Minister for Immigration and Border Protection & Anor NSD354/2016 (DBB16). I also ordered that the parties have leave to file and serve further submissions within 14 days of the judgment in DBB16.
Ashmore Reef
On 23 January 2002 the Minister appointed an area in the vicinity of Ashmore Reef a proclaimed port for the purposes of s.5(5) of the Act. If valid, the appointment would have made the proclaimed port an ‘excised offshore place’ within the meaning of s.5 of the Act.
On 11 July 2018 Judge Smith gave judgment in two matters, DBD16 v Minister for Immigration & Anor [2018] FCCA 1801 (DBD16) and DBC16 v Minister for Immigration & Anor [2018] FCCA 1802 (DBC16). Declarations were made in each matter that the purported appointment of a port at Ashmore Reef was invalid on the basis that the relevant area could not meet the definition of a ‘port’ under the Act.
The Full Court of the Federal Court on 6 August 2018 in DBB16 made orders in relatively identical terms to the orders made by Judge Smith in DBD16 and DBC16. The declarations included that the purported appointment was invalid. As a consequence the IAA did not have jurisdiction to conduct the review.
The circumstances of the applicant’s arrival in Australia and the orders of the Federal Court in DBB16 have led the applicant to seek summary judgment in this proceeding on 17 August 2018. This application is opposed by the Minister.
The applicant’s counsel submits that the Full Court’s determination is binding on this Court. The Minister’s solicitor concedes that this Court is currently bound by the declaration in DBB16 made on 6 August 2018.
Summary Judgment Application
An Application in a Case was filed on 7 August 2018 (Application). The Application states that it is supported by the affidavit of Sanmati Verma, affirmed on 7 August 2018 (Verma Affidavit). An affidavit of the applicant, affirmed on 26 July 2018 was also filed in support of the Application (Applicant’s Affidavit).
The applicant seeks the following orders in the Application:
a)The applicant have leave to file and serve a second further amended application in the form of annexure “SV-2” to the affidavit of Sanmati Verma dated 7 August 2018 (Second Further Amended Application).
b)Pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) and/or r.13.07 of the Federal Circuit Court Rules 2001 (Cth), there be summary judgment for the applicant in respect of ground 6 of the Second Further Amended Application.
c)A declaration that 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.
d)A declaration that the applicant is not an “unauthorised maritime arrival” within the meaning of s.5AA of the Act.
e)A declaration that the applicant has not been notified pursuant to s.66 of the Act of the decision of a delegate of the Minister for Immigration and Border Protection dated 11 April 2016.
f)A writ of mandamus issue directed to the Minister requiring the Minister to notify the applicant according to s.66 of the Act of the decision of the delegate of the Minister dated 11 April 2016.
g)A writ of certiorari issue quashing the decision of the second respondent.
h)That Order 1 of the orders made on 8 May 2018 be vacated.
i)The Minister pay the applicant’s costs of the Application.
The Verma Affidavit annexes:
a)The orders made by the Federal Court on 6 August 2018 in DBB16.
b)The draft Second Further Amended Application.
c)The Migration (Validation of Port Appointments) Bill 2018.
The applicant in the Applicant’s Affidavit deposes as to the circumstances leading to his arrival in Darwin in November 2012.
The application to file and serve the Second Further Amended Application was not opposed by the Minister. However, each of the other orders sought by the applicant in the Application were opposed by the Minister.
Principles Governing Summary Judgment
The power of the Court to dismiss the proceedings by summary judgment is contained in s.17A(1) of the Federal Circuit Court of Australia Act 1999 (Cth) and also r.13.07 of the Federal Circuit Court Rules 2001 (Cth).
Section 17A(1) of the Federal Circuit Court of Australia Act (Cth) provides:
(1)The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
[…]
Rule 13.07 of the Federal Circuit Court Rules 2001 (Cth) provides that:
(1) This rule applies if, in a proceeding:
(a)in relation to the whole or part of a party’s claim there is evidence of the facts on which the claim or part is based; and
(b) either:
(i) there is evidence given by a party or by some responsible person that the opposing party has no answer to the claim or part; or
(ii)the Court is satisfied that the opposing party has no reasonable prospect of successfully defending the claim or part.
(2)The Court may give judgment on that claim or part and make any orders or directions that the Court considers appropriate.
[…]
The leading authority on the analogous (though not identical) provisions of the Federal Court Act 1976 (Cth) (s.31A) and of the Federal Court Rules 2011 (Cth) (r.26.01(1)(d)) is Spencer v Commonwealth of Australia (2010) 241 CLR 118 (Spencer).
In Spencer, French CJ and Gummo J noted (at [24]) that the "exercise of powers to summarily terminate proceedings must always be attended with caution". Their Honours continued:
[24] That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-130 per Barwick CJ; [1964] HCA 69) or on the basis that the action is frivolous or vexatious or an abuse of process (Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91 per Dixon J; [1949] HCA 1). As to the latter, this Court in Fancourt v Mercantile Credits Ltd ((1983) 154 CLR 87 at 99 […]) said
The power to order summary judgment or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.
[…]
[25] [...] Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceeding had no reasonable prospect of success.
Counsel for the applicant referred to the decision of French J (as he then was) in Minister for Immigration and Multicultural Affairs v Farshid Kheirollahpoor ([2001] FCA 1306, at [5]-[8]) (Kheirollahpoor) in support of the submission that a possible special leave application is not a reason to adjourn an application for summary judgment. It was also submitted by counsel for the applicant that this decision was the current state of the law (Applicant's Submissions filed 16 August 2018, [44]). I do not agree with that submission. Kheirollahpoor was a case where there was an application for judicial review of the Refugee Review Tribunal. Kheirollahpoor was not a case where the applicant was applying for summary judgment. There is a significantly higher threshold for summary judgment to be reached and I distinguish this case from Kheirollahpoor.
Consideration
The position in relation to Ashmore and Cartier Reefs is that at the time of delivering these reasons for decision, orders have been made in DBB16. Reasons for judgment however have not been delivered by the Full Court of the Federal Court. The Ashmore Reef and Cartier Reef argument was not raised when DBB16 was heard by this Court and the case was decided by Judge Driver on different grounds (DBB16 Minister for Immigration & Border Protection [2017] FCCA 375).
Counsel for the Minister submitted that as the Federal Court has not yet published its reasons for judgment in DBB16, the Minister is not yet in a position to form a view as to whether he will make an application to the High Court for special leave to appeal from the Federal Court's Orders.
The Orders in DBB16 were made on 6 August 2018. Rule 41.02.1 of the High Court Rules 2004 (Cth) provides that an application for special leave shall be filed within 28 days after the judgment below was pronounced. The Minister therefore has 28 days to make an application for special leave to the High Court or such other period that may be extended by the High Court after the Full Court’s reasons in DBB16 are delivered.
Counsel for the Minister has submitted that on 1 August 2018 the Minister appealed to the Federal Court the decisions of this Court in DBC16 and DBD16.
In EPG17 v Minister for Immigration and Border Protection [2018] FCC (PEG552/2017) orders were made on 13 August 2018 in this Court by Judge Smith by way of summary judgment. Declarations were made in accordance with the declarations made in DBB16.
The law in relation to Ashmore and Cartier Reefs is in a process of development. This is also evidenced by Annexure “SV-3” to the Verma Affidavit, being the Migration (Validation of Port Appointment) Bill 2018 which is currently before Federal Parliament. The applicant has consequently sought an urgent hearing of the Application. This Court is nevertheless bound by the declarations of the Full Federal Court in DBB16, which are clear and unambiguous.
By reason of ground 6 of the Second of Further Amended Application the Minister has no reasonable prospect of defending that ground in light of the decision of the Full Court of the Federal Court in DBB16.
As a result I am satisfied that it is appropriate to give summary judgment in accordance with r.13.07 of the Federal Circuit Court Rules 2001 (Cth) upon the basis that the Minister has no reasonable prospect of defending the proceeding.
Costs
The applicant has sought costs of the Application on an indemnity basis in the sum of $7,000. Particulars of how this amount has been calculated have not been provided. The basis of the indemnity costs application is that the applicant’s solicitors wrote to the Minister’s solicitors on 31 July 2018 inviting the Minister to withdraw from this proceeding, in light of the decisions in DBD16 and DBC16. The Minister declined. Then on 13 August 2018 after the Full Court’s decision in DBB16 the applicant’s solicitors again wrote to the Minister’s solicitors, and again the invitation was declined.
Counsel for the applicant relied on Colgate Palmolive Co v Cussens Pty Ltd (1993) 118 ALR 248. Counsel submitted that the Minister, being properly advised, should have realised from an early stage that there was no possible way that summary judgment could be resisted. As a result costs have been needlessly incurred by the applicant filing the Application.
The solicitor for the Minister opposed the application for indemnity costs. In relation to the decision of Colgate Palmolive Co v Cussens Pty Ltd he referred to Sheppard J in that case (at 256) who said;
…there should be some special or unusual feature in the case to justify the court in departing from the ordinary practice.
In the present case I find no special or unusual features to warrant the making of an indemnity costs order. As mentioned above, the law in relation to Ashmore Reef is developing.
Conclusion
I will therefore make the following declarations and orders:
(1)The applicant have leave to file and serve a second further amended application in the form of annexure “SV-2” to the Affidavit of Sanmati Verma, affirmed and filed on 7 August 2018 (Second Further Amended Application).
(2)A declaration that 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.
(3)A declaration that the applicant is not an “unauthorised maritime arrival” within the meaning of s.5AA of the Migration Act 1958 (Cth).
(4)A declaration that 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 11 April 2016.
(5)A writ of certiorari issue quashing the decision of the second respondent.
(6)Pursuant to r.13.07 of the Federal Circuit Court Rules 2001 (Cth) there be summary judgment for the applicant in respect of ground 6 of the Second Further Amended Application.
(7)Order 1 of the Orders made by Judge Kirton on 8 May 2018 be vacated.
(8)The first respondent pay the Applicant’s costs of and incidental to the proceeding as agreed or as taxed pursuant to pt.40 of the Federal Court Rules 2011 (Cth).
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Kirton
Date: 23 August 2018
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