CBC17 v Minister for Immigration - [2018] FCCA 3383

FEDERAL CIRCUIT COURT OF AUSTRALIA

CBC17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3383

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Applicant arrived on Ashmore Island with his rights being affected by the decision in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178 – declaration made that the Applicant was not an “unauthorised maritime arrival” and decision of Immigration Assessment Authority quashed.

Legislation:

Migration Act 1958 (Cth), s.477

Cases cited:

DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178

Applicant:

CBC17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 1460 of 2017

Judgment of:

Judge Dowdy

Hearing date:

19 November 2018

Delivered at:

Sydney

Delivered on:

19 November 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent:

Mr R. White

Solicitors for the First Respondent:

Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Applicant be granted leave to amend his Amended Application to add a further Ground invoking the decision and finding in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178.
Dispense with any need of the Applicant to file an Amended Application or a further Amended Application expressly containing that amendment.
Order pursuant to s.477(2) of the Migration Act 1958 (Cth) that the time for the Applicant to file his application in this proceeding be extended up to and including 12 May 2017.
Declare that the purported appointment of a port as a proclaimed port in respect of an area of waters within the Territory of Ashmore and Cartier Islands, by notice published in the Commonwealth of Australia Gazette number GN3 on 23 January 2002, is invalid.
Declare that the Applicant is not an “unauthorised maritime arrival” within the meaning of s.5AA of the Migration Act 1958 (Cth).
A writ of certiorari issue quashing the decision of the Second Respondent dated 29 November 2016.
No order as to costs, to the intent that each party pay and bear his own costs of the proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1460 of 2017

CBC17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

The Applicant in this proceeding is a male citizen of Iran aged 39 years, having been born on 22 September 1979.
By Application filed in this Court on 12 May 2017, he sought to quash and have re-determined the decision of the Second Respondent, the Immigration Assessment Authority (IAA), dated 29 November 2016 which affirmed the decision of the Delegate of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 23 August 2016, refusing to grant to him a Protection (Class XC) (Subclass 790) Safe Haven Enterprise visa (Protection visa).
He also sought an extension of time under s.477(2) of the Migration Act 1958 (Cth) (the Act). The extension required was some 128…

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 3383
Decision Date: 19 November 2018

CaseChat Overview and Summary

The applicant, CBC17, arrived on Ashmore Island and sought a declaration that he was not an "unauthorised maritime arrival" under the *Migration Act 1958* (Cth). This application was made in light of the Federal Court's decision in *DBB16 v Minister for Immigration and Border Protection* [2018] FCAFC 178, which had implications for individuals arriving in similar circumstances. The applicant also sought to quash a decision made by the Immigration Assessment Authority. The matter was heard by Dowdy J in the Federal Court of Australia.

The central legal issue before the Court was whether the applicant, by virtue of his arrival on Ashmore Island, fell within the definition of an "unauthorised maritime arrival" as contemplated by the *Migration Act 1958* (Cth), particularly in light of the preceding authority of *DBB16*. This determination was critical to the applicant's ability to pursue further review or challenge the decision of the Immigration Assessment Authority.

Dowdy J reasoned that the applicant's circumstances were analogous to those considered in *DBB16*. The Court applied the principles established in that case, which held that individuals arriving on Ashmore Island in the manner described were not to be considered "unauthorised maritime arrivals" for the purposes of the Act. Consequently, the Court declared that the applicant was not an unauthorised maritime arrival and quashed the decision of the Immigration Assessment Authority.

Orders