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:

1. 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.

2. Dispense with any need of the Applicant to file an Amended Application or a further Amended Application expressly containing that amendment.

3. 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.

4. 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.

5. Declare that the Applicant is not an “unauthorised maritime arrival” within the meaning of s.5AA of the Migration Act 1958 (Cth).

6. A writ of certiorari issue quashing the decision of the Second Respondent dated 29 November 2016.

7. 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

1. The Applicant in this proceeding is a male citizen of Iran aged 39 years, having been born on 22 September 1979. 

2. 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).

3. 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 days outside the 35-day time limit prescribed by s.477(1) of the Act. The Application of 12 May 2017 was succeeded by an Amended Application, filed on 15 January 2017.

Background

1. The Applicant entered Australia by sea at Ashmore and Cartier Islands, at Ashmore Reef.

2. The Minister, as a model litigant, has identified that this case is affected potentially by the decision of the Full Court of the Federal Court of Australia in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178 (DBB16).  The Minister put the Applicant on notice of this issue but no amendment has been sought to plead a ground based on DBB16.

The Application in this Court

1. Today, Mr White has appeared for the Minister and the Applicant has appeared in person with the aid of an interpreter. I understand that Mr White has again orally explained to the Applicant the position and the Applicant now is to be taken as seeking an amendment to his Amended Application to invoke the finding of the Full Court in DBB16. That seems entirely proper in the circumstances.

2. The next point to deal with is that, as I have said, the Applicant needs an extension of time.  I have read the papers before coming into Court and there is no evidence at all providing a reasonable excuse for not having made his Application to this Court within the statutory time limit.

3. But, as the Ground in relation to Ashmore Island seems unarguably in favour of the Applicant, I consider that it is in the interests of the administration of justice that the Applicant be granted an extension of time under s.477(2) of the Act, to file his Application in this Court up to and including 12 May 2017.

4. The matter today is before me in the regular course, having been set down for hearing some time ago and so there is no question here of bringing the case forward to give the Applicant an advantage and to avoid the well-known intended legislation before the Commonwealth Parliament which has the intent of negating the force and effect of DBB16.

Conclusion

1. In these circumstances, DBB16 governs this case and I must follow it. I find that the IAA did not have jurisdiction and that appropriate orders making the Applicant’s position clear ought to be made.

2. I again note that whilst the Minister is not opposing the course which I propose to take, he is not consenting to it and he continues to maintain, and I record his position in this respect, namely that DBB16 was wrongly decided.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  26 November 2018