DBC16 v Minister for Immigration & Anor
[2018] FCCA 1802
•11 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DBC16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1802 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority (IAA) – whether the IAA had authority to review decision – whether the applicant was an unauthorised maritime arrival – whether the purported appointment of a port as a proclaimed port an area of waters within the Territory of Ashmore and Cartier Islands by the Minister was a valid appointment – meaning of “port” – whether instrument a valid exercise of power – whether the IAA denied the applicant procedural fairness – whether the IAA erred by failing to raise adverse information – whether the IAA erred by failing to provide an opportunity for an oral interview – instrument invalid – declarations made – writ of certiorari issued. |
| Legislation: Ashmore & Cartier Island Acceptance Act 1933 (Cth), s.5 Constitution, ss.51, 122 Customs Act 1901 (Cth) Defence Regulations 1952 (Cth), sub-reg.49(1) Environmental Protection & Biodiversity Regulations 2000 (Cth), reg.20.02 Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth), s.3, sch.1, item 8 Other Materials cited: |
| Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Cabell v Markham 148 F 2d 737 (1945) Cann’s Pty Ltd v Commonwealth (1946) 71 CLR 210 Corless v City of Richmond [1924] VLR 408 Robtelmes v Brenan (1906) 4 CLR 395 Sainju v Minister for Immigration & Citizenship (2010) 185 FCR 86 |
| Applicant: | DBC16 |
| First Respondent: | Minister for Immigration & Border Protection |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 509 of 2016 |
| Judgment of: | Judge Smith |
| Hearing dates: | 1 June 2017, 20 February and 26 April 2018 |
| Date of Last Submission: | 26 April 2018 |
| Delivered at: | Sydney (video link to Perth) |
| Delivered on: | 11 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr M G S Crowley |
| Solicitors for the Applicant: | Estrin Saul |
| Counsel for the Respondents: | Mr M Ritter SC and Mr B Kaplan |
| Solicitors for the Respondents: | Sparke Helmore |
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 Minister for Immigration and Border Protection dated 11 July 2016.
ORDERS
An order that a writ of certiorari issue quashing the decision of the second respondent made on 22 September 2016.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT perth |
PEG 509 of 2016
| DBC16 |
Applicant
And
| Minister for Immigration & Border Protection |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Bangladesh who arrived in Australia by boat and without a visa in November 2012. He made an application for a protection visa on 9 October 2015. On 11 July 2016 a delegate of the Minister for Immigration made a decision not to grant the applicant a protection visa. 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 22 September 2016.
The issues in this matter also arose in another matter heard on the same days as this matter and in which judgment was handed down at the same time as this judgment: DBD16 v Minister for Immigration & Border Protection [2018] FCCA 1801.
The applicant seeks judicial review of the IAA’s decision. He argues that the IAA did not have authority to review the delegate’s decision. Very briefly, his argument is that, for the purposes of the Migration Act 1958 (Cth), he first arrived in Australia at Darwin and so was not subject to the very detailed legislative scheme of which a review by the IAA forms part. For the reasons that follow, the applicant’s argument must be accepted.
In order to understand the issues that arise, and the relevant facts, it is first necessary to have regard to the applicable statutory scheme.
The relevant statutory scheme
The Minister must refer a fast track reviewable decision to the IAA “as soon as reasonably practicable after the decision is made”: s.473CA. Section 473BB defines such a decision as:
...
(a)a fast track decision in relation to a fast track review applicant; or
(b)a fast track decision determined under section 473BC;
but does not include a fast track decision in relation to which the Minister has issued a conclusive certificate under section 473BD.
...
It is unnecessary to examine each of the many steps necessary to satisfy that definition. It suffices to note that, in order for pt.7AA to apply, the visa applicant must be a “fast track applicant” which means, in turn, that he or she must be an unauthorised maritime arrival.
The term “unauthorised maritime arrival” was introduced into the Act with effect from 1 June 2013 by the insertion of s.5AA by the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act2013 (Cth), s.3, sch.1, item 8. Section 5AA(1) provides:
(1) For the purposes of this Act, a person is an unauthorised maritime arrival if:
(a)the person entered Australia by sea:
(i) at an excised offshore place at any time after the excision time for that place; or
(ii) at any other place at any time on or after the commencement of this section; and
(b) the person became an unlawful non-citizen because of that entry; and
(c)the person is not an excluded maritime arrival.
...
(Emphasis both original and added)
Although it is necessary to decide whether each of the elements of this definition is met, for present purposes, the critical question arises under sub-s.5AA(1)(a)(i). Briefly, that is because the applicant arrived in Australia in November 2012, well before the commencement of s.5AA. That means that I must determine whether the applicant “entered Australia by sea” at an “excised offshore place”.
“Excised offshore place” was defined by s.5 of the Act to mean any of the following:
...
(a)the Territory of Christmas Island;
(b)the Territory of Ashmore and Cartier Islands;
(c)the Territory of Cocos (Keeling) Islands;
(d)any other external Territory that is prescribed by the regulations for the purposes of this paragraph;
(e)any island that forms part of a State or Territory and is prescribed for the purposes of this paragraph;
(f)an Australian sea installation;
(g)an Australian resources installation.
The regulations did not, at any relevant time, prescribe any place for the purposes of that definition.
The excision time for each of the excised offshore places was also defined in s.5 of the Act. No issue arises in respect of those times and it is unnecessary to set them out.
Section 5AA(2) of the Act defines the circumstances in which a person enters Australia by sea for the purposes of the Act. It provides:
(2)A person entered Australia by sea if:
(a)the person entered the migration zone except on an aircraft that landed in the migration zone; or
(b)the person entered the migration zone as a result of being found on a ship detained under section 245F (as in force before the commencement of section 69 of the Maritime Powers Act 2013) and being dealt with under paragraph 245F(9)(a) (as in force before that commencement); or
(ba)the person entered the migration zone as a result of the exercise of powers under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013; or
(c)the person entered the migration zone after being rescued at sea.
(Emphasis both original and added)
Section 5 defines “migration zone” as follows:
migration zone means the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:
(a)land that is part of a State or Territory at mean low water; and
(b)sea within the limits of both a State or a Territory and a port; and
(c)piers, or similar structures, any part of which is connected to such land or to ground under such sea;
but does not include sea within the limits of a State or Territory but not in a port.
(Emphasis in original and added)
A “port” is also defined in s.5:
port means:
(a)a proclaimed port; or
(b)a proclaimed airport.
A “proclaimed port” means:
(a)a port appointed under section 15 of the Customs Act 1901; or
(b)a port appointed by the Minister under subsection (5).
Sub-section 5(5) relevantly provides:
(5)The Minister may, by notice published in the Gazette:
(a)appoint ports in an external Territory to which this Act extends as proclaimed ports for the purposes of this Act and fix the limits of those ports; and
…
On 21 December 2001 the then Minister for Immigration and Multicultural and Indigenous Affairs signed an instrument in purported exercise of his power under sub-s.5(5)(a) of the Act (Instrument). The Instrument was subsequently published in the Gazette. The Instrument relevantly stated:
APPOINT as a proclaimed port for the purposes of the Act the area of waters within the Territory of Ashmore and Cartier Islands commencing at a point on the Mean Low Water (MLW) line closest to Latitude degree 13.2 minutes 122 degrees 59.0 minutes then following the line of MLW in an anticlockwise direction so as to enclose a bay by bridging across islands of MLW at the entrance to the bay to close back to the point of commencement.
It will be recalled that the Territory of Ashmore and Cartier Islands is, and was at all material times, an “excised offshore place”. Assuming that the Instrument was valid, its effect was, simply put, that any person arriving in the area described in it, by boat and without a visa, was an unauthorised maritime arrival and, subject to irrelevant matters, the decision of a delegate of the Minister to refuse to grant him or her a visa would be reviewable by the IAA under the provisions of pt.7AA of the Act.
Although, at one stage of the proceedings, there was an issue as to whether the applicant did ever enter the area said to be described in the Instrument, the applicant ultimately conceded that point and it need not be examined for the purposes of this judgment.
A statement of the issues
The issues for determination were formulated by the applicant as follows:
1.Whether the purported appointment of a port as a proclaimed port an area of waters within the Territory of Ashmore and Cartier Islands by former Minister Ruddock on 21 December 2001 purportedly pursuant to s 5(5)(a) of the Migration Act 1958 (Cth) (Migration Act), and published in the Commonwealth of Australia Gazette No GN 3 on 23 January 2002, is a valid appointment. The validity of that appointment requires consideration of the following sub-issues:
1.1Whether the Minister can lawfully appoint a port a proclaimed port over waters within the Territory of Ashmore and Cartier Islands under s 5(5) of the Migration Act, taking into account:
1.1.1 Whether the appointment was for ‘the purposes’ of the Migration Act;
1.1.2 Whether the word “port” in context requires:
1.1.2.1Some pre-existing infrastructure consistent with an established ‘port’;
1.1.2.2Some regularity of the passing of goods into or out of the course of trade with or within Australia;
1.1.2.3The actual or anticipated passing of goods into or out of the course of trade with or within Australia;
1.1.2.4Immigration personnel in situ performing one or any of the specified functions or duties relative to a ‘port’ under the Migration Act;
1.1.3 Whether s5(5)(a) is made pursuant to an exercise of the Commonwealth’s ‘trade or commerce’ power and/or ‘external affairs’ power, and if so whether a construction consistent with those federal constitutional limits assists in construing the provision,
1.1.4 Whether the appointment of the proclaimed port in fact is an unconstitutional exercise of the legislative power of the Commonwealth, and;
1.1.5 Whether the appointment of the port as a proclaimed port in fact is invalid as a disproportionate exercise of the Minister’s powers under s.5(5)(a)
1.2.Whether the instrument of appointment published in Commonwealth of Australia Gazette No GN 3 on 23 January 2002 is valid on its face by omitting a degree of longitude, or by incorporating a reference to ‘mean low water’ as delineating
(Without alteration)
There is some tension between some of these issues. For instance, the overall issue appears to assume that what the Instrument purported to appoint as a proclaimed port was a port, but the sub-issues make it clear that the applicant contends otherwise.
There appears to be one overall issue in the proceedings: whether the Instrument constituted a valid proclamation of a “proclaimed port” for the purposes of the Act. That issue raises 2 questions:
(i)was the area described in the Instrument a “port” within the meaning of the Act?; and
(ii)if so, was the Instrument otherwise a valid exercise of the power under sub-s.5(5)(a)?
In order to answer either of these questions it is necessary to determine, if possible, precisely what area is described in the Instrument. The Minister relied on the evidence of an expert, Mr Grant Boyes, a Marine Geographer. Mr Boyes produced a map with markings that purported to show what the Instrument described (Map). A small version of that map is attachment 1 to these reasons. His evidence was that the area outlined in blue to the left of the map depicted the description in the Instrument.
The most convenient way to determine the issues is to first address the proper meaning of the word “port” in the Act. I will assume for that purpose that the Map is an accurate depiction of what is described in the Instrument.
Before turning to that question, it is convenient first to deal briefly with a constitutional issue raised by the applicant. He argued that, because “proclaimed port” had historically been defined in the Act to be a port proclaimed under the Customs Act 1901 (Cth) (Customs Act), and the Constitutional underpinning of the Customs Act by the trade or commerce power, or taxation power, in ss.51(i) and 51(ii) of the Constitution, it was beyond power for a place to be designated as a “proclaimed port” unless it had the necessary commercial quality. The argument must be rejected for two reasons. First, assuming the sufficiency of an interpretive connection between the two Acts, the connection between the Act and the Customs Act was severed by the introduction of the second limb of the definition of “proclaimed port” (see [15] above). Secondly, the Act is supported by both the “aliens” power in s.51(xix) of the Constitution as well as the “immigration and emigration” power in s.51(xxvii): Robtelmes v Brenan (1906) 4 CLR 395. Those powers are not confined in the manner suggested by the applicant.
The meaning or meanings of “port” in the Migration Act 1958
The Minister submitted that, on its proper construction, “port” means “a place along the coast where ships may take refuge from storms or any place where persons may be allowed to pass into a country”. This submission was based on one of a number of definitions of “port” in the Macquarie Dictionary. He argued that, in light of that meaning, there was no grammatical difficulty with the appointment of waters within the Territory of Ashmore and Cartier Islands as a “proclaimed port”.
The task of statutory construction begins and ends with consideration of the text itself. That text must be considered in its context which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. That, in turn might require consideration of legislative history and extrinsic materials. However, consideration of those materials cannot replace the essential task of the construction of the text and cannot displace the clear meaning of that text: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-47, [47] and the cases cited there.
The ordinary meaning of the word “port” entails a place where there is ordinarily movement of goods and/or passengers between vessels on the water and the land. This ordinarily involves some infrastructure.
It may be, as submitted by the Minister, that there are other definitions to be found in dictionaries. However, the Minister’s submission ignores the proper approach to statutory construction and, instead, makes a fortress out of the dictionary: Cabell v Markham 148 F 2d 737 at 739 (1945); Commissioner of Taxation v BHP Billiton Ltd (2011) 244 CLR 325 at [49]; Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629 at [27]; Thiess v Collector of Customs (2014) 250 CLR 664 at [23]; Vanstone v Clark (2005)147 FCR 299 at [163]; and South Western Sydney Local Health District v Gould [2018] NSWCA 69 at [78] – [81].
The Minister submitted that, because s.7 of the Act extends the operation of the Act to a prescribed Territory (of which the Territory of Ashmore and Cartier Islands is one), the Act clearly contemplates that the power to proclaim a port may be exercised in respect of that Territory. Absent the requirement that the proclamation be made in respect of a “port”, that submission may have substance. However, given that qualification to the power under s.5(5), the fact that the Act extends to prescribed Territories does little to advance the Minister’s case. All it does is to establish that there is no overarching reason for which the power in s.5(5) cannot be exercised in respect of a Territory. It does not answer the question what is meant by “port” in the Act and whether the area described in the Instrument comes within that meaning.
The only submission of any real substance made by the Minister was that the construction argued for by the applicant would stifle, rather than enhance the purpose of the legislation as a whole.
A purpose of the Act is, it was submitted and may be accepted, to “regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”: s.4(1). However, as will be seen, the construction of “port” proffered by the applicant does not stifle that purpose. The generality of the stated object of the Act only qualifies the regulation of entry into Australia by non-citizens by reference to the national interest. The breadth of that concept, and its susceptibility to broad policy considerations is well-known. In light of that, and in order to arrive at the correct construction of “port” in the Act, it is necessary to consider the Act as a whole.
The first, and immediate, indication in the Act that supports the conclusion that “port” is used in its ordinary sense is its correlation to an “airport” in the definition section of the Act[1]. An airport inevitably includes some infrastructure that facilitates the movement of goods and passengers to and from aircraft.
[1] Section 5, Migration Act 1958 (Cth).
There are 2 other clear indications that the ordinary meaning of “port” applies in the Act. Each of these is to be understood in the context of the overall purpose of the Act highlighted by the Minister. That purpose, and other elements to which I will refer in due course, require a considerable level of certainty for the proper administration of the Act. It will be recalled that the qualification to the regulation of entry into Australia is that it be in the national interest. That is not best achieved by reliance on vague standards or uncommon concepts. Further, the Act bristles with tightly constructed, inter-connecting provisions, many of which advance certainty in the administration of the Act over other competing interests: see, for example, Sainju v Minister for Immigration & Citizenship (2010) 185 FCR 86.
In my view, the certainty involved in the ordinary meaning of “port” is more consistent with the overarching purpose of the Act than the construction advanced by the Minister. That conclusion is not undermined by the fact that a level of certainty is attained by the proclamation of an area as a port. Whether that certainty was achieved in this case is discussed later in these reasons.
The first other matter of note is the place of “port” in the definition of the “migration zone” and, in turn, the importance of the “migration zone” in the regime constructed in the Act for the purpose of regulating the entry into Australia of non-citizens. The second is the ordinary requirement under s.43 that a person with a visa enter Australia at a port. The second of these can be dealt with briefly.
Section 43 relevantly provides:
(1)Subject to subsections (1A) and (3) and the regulations, a visa to travel to and enter Australia that is in effect is permission for the holder to enter Australia:
(a)at a port; or
(b)on a pre-cleared flight; or
(c)if the holder travels to Australia on a vessel and the health or safety of a person or a prescribed reason, make it necessary to enter in another way, that way; or
(d)in a way authorised in writing by an authorised officer.
...
Although there are exceptions to the requirement in s.43 to enter at a port, the primacy given to entry at a port suggests, in the first place, that the point of entry will be one that is ordinarily used as a point of entry into the country and, in the second place, as a consequence of that, that that place will have the usual type of infrastructure that accompanies regular entry into a country. That supports the conclusion that the ordinary meaning of “port” was intended to apply in the Act.
The importance of s.43 is highlighted by s.173 of the Act which provides that, if a visa holder enters Australia in a way that contravenes s.43, the person’s visa ceases to be in effect. The consequences of that, as will be seen, are that the person becomes an unlawful non-citizen and is subject to mandatory detention and removal.
The primacy of entry at a port is also reflected in s.172 of the Act that deals with “immigration clearance”. In summary, immigration clearance occurs when a person enters Australia, proffers some form of identification and is checked by officers under the Act: see s.166. This occurs, for example, at the immigration controls soon after a passenger arrives on an international flight and he or she collects his or her luggage and passes customs. The visa of a person who fails to comply with the obligation to go through immigration clearance ceases to be in effect: s.174.
It is true, as the Minister submits, that there are variations in the system of immigration clearance that would allow a person who arrived in Australia at a distant, undeveloped and uninhabited place without infrastructure (such as the Territory of Ashmore and Cartier Islands) to be immigration cleared. However, that submission does not adequately deal with the importance of the overall scheme and how it works to achieve the stated objects of the Act. The scheme is complex and aimed at tight control of entry into Australia. It is designed to achieve certainty: to know who is in Australia with the relevant authority, and who is not. The definition of “port” that best fits with that scheme must be preferred.
The second important aspect of the Act relevant to the question of construction is the concept of the “migration zone”. The definition of that term is set out at [13] above. For present purposes, it is important to note, as highlighted above, that the migration zone does not “include sea within the limits of a State or Territory but not in a port”.
The importance of the migration zone in the scheme of the Act cannot be understated. A person’s presence within it will determine, amongst many things, whether:
(a)the person is an unlawful non-citizen (ss.13, 14) and, as such, whether they are liable to be taken into immigration detention (s.189) and removed (s.198);
(b)the person may apply for, or be granted, certain classes of visa (s.40 and the regulations made under it);
(c)an application for a visa made by the person is valid (ss.46(1A), 91P);
(d)another visa application may be made (ss.48, 48A);
(e)the person’s visa is subject to certain types of cancellation (s.117) or its cancellation may be revoked (s.137K);
(f)an offence (of strict liability) of concealing an unlawful non-citizen on a vessel is committed (s.230);
(g)the power to search, and to prevent a person landing and detaining that person (ss.249, 250, 251).
These provisions show that the “migration zone” plays a central role in the scheme of the Act. The importance of knowing the precise scope of the area that falls within the migration zone is highlighted by the fact that the consequences of a person’s presence in it include mandatory detention, removal and the imposition of criminal penalties. While I acknowledge that the proclamation of an area or thing as a port plays an important part in the certainty required by the provisions, it does not undermine the importance of also being able to ascertain, with certainty, that what is being proclaimed is in fact a port. That certainty is best achieved by understanding “port” as being used in its ordinary sense, that is, as a place where there is ordinarily movement of goods and/or passengers between vessels on the water and the land.
The applicant also relied on a number of authorities that considered the meaning of the word “port”. I have had regard to those authorities; however, I accept the Minister’s submission that the different context in which those cases were decided make them an uncertain guide to the construction of the same word in the Act. The better approach is to consider the word in its context with regard to the purpose of the Act as a whole and the provisions in which the word plays an integral role.
Is the area described in the Instrument a “port”?
The next question is whether the area described in the Instrument was a “port” within the meaning of the Act. There was no real issue that it was not. The following facts are taken from the applicant’s written submissions. They accurately reflect the evidence before the Court and were not contested.
The Territory of Ashmore and Cartier Islands is an uninhabited reef system composed of coral and sand lying 144 kilometres south of the Indonesian island of Roti, 840 kilometres west of Darwin and more than 600 kilometres north of Broome.
There are 3 small islands, a reef and surrounding waters.
There is no electricity or infrastructure apart from fresh water wells which are contaminated by cholera. Cyclones are common and cause large-scale sediment redistribution.
Anchorage to Ashmore reef is offshore and no commerce has been transacted on the islands since the late 19th century. American whaling in the area had ceased by the 1840’s and mining activity ceased by the end of the 19th century when the islands’ phosphate deposits were exhausted.
By s.5 of the Ashmore & Cartier Island Acceptance Act 1933 (Cth) the Commonwealth of Australia both acquired and renamed as the “Ashmore Islands” what was up to that point “Middle, East and West Islands”. This perfected under s.122 of the Constitution, a British Order-in-Council transferring sovereignty over the area.
Since World War II the Department of Defence has used Cartier Island periodically as a weapons range. Subsequently, by gazettal GN 46 of 23 November 1994 pursuant to sub-reg.49(1) of the Defence Regulations 1952 (Cth), Defence renewed Cartier Island and its surrounds to a radius of 10 kilometres as a ‘defence practice area’ for ‘air to surface weapons firing’. In 1986 Defence removed some unexploded ordinance, but because of the shifting sands no guarantee of safety can be made. The risk of unexploded bombs continues to pose a safety hazard to visitors of the reef and island.
Traditional Indonesian fishing rights have been formally recognised by Australia since 1974 by a Memorandum of Understanding between the Government of Australia and the Government of the Republic of Indonesia regarding the Operations of Indonesian Traditional Fishermen in areas of the Australian Exclusive Fishing Zone and Continental Shelf (as reviewed in 1989) (MoU). To this end, the Ashmore reef system is wholly contained within the eponymous ‘MOU Box’, itself within Australia’s self-declared Exclusive Economic Zone. By Article 3(c) of the MoU, Indonesian fishing vessels may fish and take shelter within the island groups, but passengers may not set foot on the islands.
The Ashmore reef system is ecologically significant. By gazettal on 16 August 1983 the Commonwealth declared the Ashmore Islands the ‘Ashmore Reef National Nature Reserve’ under the National Parks & Wildlife Conservation Act 1975 (Cth) (NPWC Act). By gazettal on 3 September 1997 pursuant to reg.31(2) of the National Parks & Wildlife Regulations (Cth), access to the land comprising the Ashmore Islands was prohibited to all persons except Commonwealth personnel. That prohibition remained operative when the Environmental Protection & Biodiversity Act 1999 (Cth) (EPBC Act) replaced the National Parks & Wildlife Act 1974 (Cth) in 2000. The Environmental Reform (Consequential Provisions) Act1999 (Cth) repealed the NPWC Act, but preserved the Ashmore Reef National Nature Reserve as if it had been declared under the EPBC Act. Similarly, by reg.20.02 of the Environmental Protection & Biodiversity Regulations 2000 (Cth), the delegated instrument of 3 September 1997 under the NPWC Act prohibiting access to the Ashmore Islands was made effective under the EPBC Act.
These facts clearly establish that the relevant area was not a “port”. The area was an area of water within a reef. It was, it seems, navigable, but it was not disputed that the area was not, and could not be, used for the transfer of goods or passengers from vessels unless that transfer was to another vessel.
For those reasons, accepting for the present purposes that the Instrument was sufficiently clear to be valid, the area described in the Instrument was not a “port” within the meaning of the Act. As the Minister only had power to designate a “port” as a “proclaimed port”, the Instrument was beyond the Minister’s power and so was invalid.
As I have explained, the consequence of the invalidity of the Instrument is that the decision of the delegate was not reviewable under pt.7AA of the Act and there has been no notification of that decision. There will be an order for a writ of certiorari quashing the IAA’s decision and a declaration as to the lack of notice.
Was the Instrument otherwise a valid exercise of power?
While it is strictly unnecessary for me to deal with the remaining issues, I will do so for the sake of completeness.
The applicant’s remaining attacks on the validity of the Instrument are that it was made for an improper purpose, is uncertain, incomprehensible without reference to extraneous material and is arbitrary, capricious and disproportionate. Before analysing the applicant’s submissions, it is necessary briefly to state the legal basis on which the invalidity of such an instrument is to be determined.
As a general proposition, the question for determination is whether the Instrument was a valid exercise of the power given to the Minister under sub-s.5(5)(a) of the Act. Issues of certainty, proportionality and reasonableness can all arise during the course of that task.
In Cann’s Pty Ltd v Commonwealth (1946) 71 CLR 210 Dixon J (as his Honour then was) referred to his earlier judgment in King Gee Clothing Co Pty Ltd v Commonwealth (1945) 71 CLR 184 and said, at 227-228:
… to resolve ambiguities and uncertainties about the meaning of any writing is a function of interpretation and, unless the power under which a legislative or administrative order is made is read as requiring certainty of expression as a condition of its valid exercise … the meaning of the order must be ascertained according to the rules of construction and the principles of interpretation as with any other document. ...
The judgment of Dixon J in King Gee was explained by the Full Court of the Federal Court in Comcare v Lilley (2013) 216 FCR 214:
[86]For present purposes, it is more important to pay attention to the observation of principle by Dixon J in King Gee. His Honour held (at 194, 196) there is no “doctrine” that certainty is a separate requirement that all forms of subordinate legislation must fulfil, a proposition endorsed by Kitto J in Television Corporation Ltd [(1963) 109 CLR 59] at 71; see also Cann’s Pty Ltd [(1946) 71 CLR 210) at 227. Rather, if uncertainty can be a test of validity it is only because of the nature of the particular rule-making power under consideration, and the “meaning and operation” of the authorising provisions themselves.
[87]The point is, uncertainty (which may often be a synonym for lack of precision) is not some kind of freestanding criterion for invalidity. Uncertainty will only invalidate because one can derive from the text, context and purpose of the statute an intention by Parliament that the power be confined in a way which requires a high level of certainty (or precision). That will not always be the case, and in our opinion it is not the case in respect of the Guide.
(Citations added)
The scope and purpose of the Act as a whole, and the place of a “port” within that has been considered above. There is no question that there must be some considerable degree of certainty in the proclamation of such an area.
The construction of a delegated instrument may, as the Minister contends, take into account the nature of the instrument and should not be construed pedantically, but in light of practical considerations, including the consequences of differing interpretations: see, for example, Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 929 at 934-935 applied in Secretary, Department of Health v DLW Health Services Pty Ltd (2016) 246 FCR 456 at 471 [94]. However, I do not agree with the related submission that the Instrument was aimed at people with expertise and, for that reason, that the opinion of an expert is sufficient to establish that the Instrument has sufficient clarity. Similarly, I would not agree that the Instrument is either unclear or unreasonable simply because experts can disagree about the meaning of the Instrument: see Visa International Service Association v Reserve Bank of Australia (2003) 131 FCR 300 at 468.
When a piece of subordinate legislation is intended to apply only within a defined geographical area, and that geographical area is described so vaguely or imprecisely that its boundaries cannot be identified, the provision in question is not a true or valid exercise of the delegated legislative power and is therefore ultra vires: Ingwersen v Borough of Ringwood [1926] VLR 551; Stewart v City of Essendon [1924] VLR 219; Corless v City of Richmond [1924] VLR 408; Velachoutakos v City of Port Melbourne [1972] VR 720; Hitchener v Ham [1961] VR 97.
It is convenient to set out once more the relevant part of the Instrument (Description):
APPOINT as a proclaimed port for the purposes of the Act the area of waters within the Territory of Ashmore and Cartier Islands commencing at a point on the Mean Low Water (MLW) line closest to Latitude degree 13.2 minutes 122 degrees 59.0 minutes then following the line of MLW in an anticlockwise direction so as to enclose a bay by bridging across islands of MLW at the entrance to the bay to close back to the point of commencement.
The Description can be broken down into four parts for the purposes of analysis:
(a)the area of waters within the Territory of Ashmore and Cartier Islands;
(b)commencing at a point on the Mean Low Water (MLW) line closest to Latitude degree 13.2 minutes 122 degrees 59.0 minutes;
(c)then following the line of MLW in an anticlockwise direction; and
(d)so as to enclose a bay by bridging across islands of MLW at the entrance to the bay to close back to the point of commencement.
The applicant’s first submission focussed on the second of these, the “point of commencement”. There were two objections to this statement: first, to the reference to “Mean Low Water”; and secondly, to the part commencing “Latitude”. It is convenient to deal with the second of these first as there is an obvious error in this part of the Description.
The reference to Latitude, degrees and minutes makes it clear that there is an attempt in the Description to identify a location by the use of the geographic coordinate system. That system allows the precise identification of any point on earth, loosely speaking, by reference to the angle between the equatorial plane and the straight line that passes through that point and through the centre of the Earth (latitude) and the angle from that line vertically from pole to pole through the British Royal Observatory in Greenwich, London (longitude). Being angles, both latitude and longitude are measured by degrees, minutes and seconds. Thus, Sydney is approximately Latitude 33 degrees 52 minutes South (i.e. South of the Equator) Longitude 151degrees 12 minutes East (East of the Greenwich meridian).
The second part of the Description has no latitude degree figure and the word “Longitude” is apparently missing in relation to “122 degrees 59.0 minutes”. The applicant argues that this makes the identification of the commencement point difficult, if not impossible. I disagree.
First, this is a case of an obvious slip which can be corrected by the insertion of words or figures: see Lindner v Wright (1976) 14 ALR 105 at 109 and other authorities referred to by Pearce DC and Geddes RS, Statutory Interpretation in Australia (7th ed, 2011) at [2.28]. It is not a case where a correction would require the Court to re-make the Instrument: cf. Taylor v Centennial Newstan Pty Ltd (2009) 76 NSWLR 379 at [70], [77], [90], [103]-[104][2].
[2] In any event, the constitutional constraint shown in the construction of primary legislation does not necessarily apply in respect of instruments such as this one.
Secondly, the words in question must be read in the context provided by the immediately preceding phrase: “area of waters within the Territory of Ashmore and Cartier Islands”. The geographical location of that Territory is readily identifiable and was not in dispute. The evidence of Mr Boyes, a Marine Geographer[3], who was called by the first respondent, was that there were two possible degrees of latitude within the Territory: 13 degrees and 12 degrees.
[3] Mr Boyes holds a Bachelor of Applied Science (Applied Geography) degree, a double major in Geography and Law and holds various certificates relating topographic/geodetic surveying. He has held the position of Principal Adviser with the National Location Information Branch (Maritime Jurisdiction Advice Section) of the Environmental Geoscience Division since 2008 and has a total of 45 years’ experience in the area of marine geography, maritime delimitation and offshore jurisdiction: Affidavit of Grant William Boyes sworn 22 December 2017.
The applicant relies on this evidence to argue that there is, even on the respondents’ case, significant uncertainty about the “commencement point” in the Description. However, Mr Boyes’ evidence went further. He explained, and I accept that, as the Description involved MLW the correct degree of Latitude could be determined by reference to MLW. Using that contextual indication, the only possible degree of latitude in the Instrument is 12 degrees. Thus, the point of commencement referred to in the Instrument is readily identifiable as the MLW line closest to Latitude 12 degrees 13.2 minutes South Longitude 122 degrees 59.0 minutes East.
The applicant’s objection to the term “Mean Low Water” is that it has no readily identifiable meaning and is, for that reason, uncertain. He argues that “Mean Low Water” is an aggregated figure reached by collecting data over many years and it is impossible to tell with precision whether a person is within or without a line drawn from the ‘mean low water mark’. Further, the ‘mean low water’ mark is not a publicly-available and concrete standard.
From these observations, the applicant submitted that it could not have been in the contemplation of Parliament that the consequences contended for by the first respondent could flow from a measure which was inherently imprecise and necessarily denies an answer to the question: Am I inside or outside?
There are two reasons why this submission cannot be accepted. First and foremost, the term “Mean Low Water” is used in the legislation itself and, indeed, in the definition of the “migration zone”. Secondly, identification of boundaries is often done by reference to high or low water marks which may be different from time to time. There is no uncertainty created simply because there must be reference to some other material, such as a map, or other data, to ascertain a boundary with precision: see for example Li Chia Hsing v Rankin (1978) 141 CLR 182 at 191-192 (Barwick CJ) and 194 (Gibbs J).
In State of Tasmania v Mayes & O’Mahoney [2004] TASSC 52, Slicer J said at [23]:
... Although it is necessary to have recourse to another source such as a map, survey document, or geometric device for the purpose of identification, such does not render the rule invalid through uncertainty. (Williams v Law B28/1987; cf McDevitt v McArthur (1919) 14 Tas LR 6). The use of “high and low tide” as a point of reference is often used as a legislative device in property law and the delineation of jurisdiction (Hart v Woods [1972] Tas SR 143; Marine Board Act 117 of 1987; Strahan Marine Board Act 1963; Marine Act 1976; Marine Act 1921, s8; McArthur v Cheverton (1906) 3 TLR 89; Moles v Rose 1 Marsh 313[4]; Territorial Waters Jurisdiction Act 1878 (UK); Keyn (1876) 2 Ex D 68; 13 Cox CC 403).
(Footnote added)
[4] Sic: Miles v Rose [1814] EngR 626; (1814) 5 Taunt 75; 128 ER 868.
For those reasons, I do not accept the applicant’s arguments in respect of the identification of the point of commencement identified in the Instrument. For the sake of precision, I find that it is accurately identified in the Map.
I note that, in arriving at this conclusion, I have considered the evidence of Kenneth Polson. While he gave truthful evidence, his experience as a Master Mariner[5] did not enable him to express an opinion that was particularly helpful in determining the issues in the proceedings. One instance of this was the fact that he had never heard of MLW. In light of that, he could not assist in identifying whether MLW was a certain enough reference by which to determine the area which the Instrument sought to describe.
[5] A Master Mariner may serve as a captain of a commercial vessel of any size, type and operating anywhere in the world: International Convention on Standards of Training, Certification and Watchkeeping (STCW).
The applicant’s next submission takes the final two parts of the Description together. They are, for ease of reference:
(a)“then following the line of MLW in an anticlockwise direction”; and
(b)“so as to enclose a bay by bridging across islands of MLW at the entrance to the bay to close back to the point of commencement”.
It is convenient first to set out the written analysis of the Description relied on by the first respondent. This analysis refers to exhibit GB9 which is, in smaller format, and is attachment 2 to these reasons:
(a)The only feature that has the physical characteristics of a bay at low water and allows safe navigation for vessels of the type that patrol the area is the lagoon area that is formed on the north-western side of Ashmore Reef at low water. This is marked on GB9 as “Ashmore Lagoon”.
(b)In order to go anticlockwise to enclose the area that represents a bay from the point of commencement the initial direction must be to the right, that is in an easterly direction.
(c)Marked on GB9 is a low tide elevation that is at the entrance to the bay and which is an island at MLW. The words “following the line of MLW … so as to enclose a bay by bridging across islands of MLW at the entrance of the bay” to mean that the line of low water connects from the natural entrance point to the bay on the low water line of eastern promontory (Point A on GB9) in a straight line to the natural entrance point on the eastern side on the low water line of the low tide elevation in the entrance to the bay (Point B on GB9). Then the line extends around that low tide elevation to its natural entrance point in the west (Point C on GB9) then along a straight line to the starting point marked as Point D on GB9.
The applicant argues that there are two other reasonable constructions of the Description. The first involves the Minister’s suggested point of commencement but traces an anti-clockwise arc toward the West, encompassing West, Middle and East Islands. The “bay” so enclosed, includes a larger area of water but excludes the outer lagoon.
The second alternative construction would be to enclose both lagoons after tracing an anti-clockwise arc from the point of commencement point to the South-West.
The applicant argues that the Minister’s construction not only relies on the application of expert knowledge but also overlooks the fact that it does not involve “bridging” of any of West, Middle and East Islands. It also involves a highly ambiguous application of the word “anti-clockwise” because the notional line, on the Minister’s construction, travels in what can only be described as a clockwise direction to the South-East. He argued that the Minister’s construction also ignored the fact that Ashmore Reef includes two lagoons.
There are difficulties with each posited construction.
First, as the applicant submits, the Minister’s version requires a clockwise movement to begin with before an anti-clockwise movement. Secondly, the applicant’s versions ignore the apparent purpose of the Description: “so as to enclose a bay”.
While the difficulty with the Minister’s version can readily be overcome when the Description is read as a whole and in light of the purpose of the proclamation of a “port”, the difficulty with the applicant’s versions cannot.
When the purpose of the Description is kept in mind, as well as the physical context of the navigable area proximate to the point of commencement, “following the line of MLW in an anti-clockwise” is best understood at an holistic level rather than at the level that would require every movement to be anti-clockwise. In other words, the general movement from the point of commencement is in an anti-clockwise direction even if, for a small part at the beginning the movement goes in the opposite direction. If the Description were read without both the statutory and physical context I would agree that it would make insufficient sense to have been a proper exercise of the power under sub-s.5(5)(a); however, such an approach is inconsistent with the modern approach to the construction of written documents.
For those reasons, I find that the Instrument is not so unclear as to have been beyond the scope of the power under sub-s.5(5) of the Act. Similarly, it was not unreasonable or disproportionate in the sense discussed in Attorney-General (SA) v Adelaide City Corporation (2013) 249 CLR 1 and Cheryala v Minister for Immigration & Border Protection [2018] FCAFC 43.
The remaining grounds
If I am wrong about the validity of the Instrument, the IAA will have had the power and duty to review the delegate’s decision. The applicant argues that, even if that were the case, the decision was infected by jurisdictional error and ought to be set aside.
In order to address the applicant’s remaining grounds it is necessary to set out some of the background to the IAA’s decision.
Background
The applicant’s claim for protection was based on his fear of harm in Bangladesh for four reasons. First, he had experienced problems with family members from a long-standing dispute concerning the distribution of property which resulted in a false murder charge being laid against him and his being jailed for 10 years. Secondly, he was a Muslim who had married a Hindu girl and was disowned by his family. Thirdly, he was at risk because of a loan from a money lender that he could not repay. Fourthly, because of his membership and support of the Bangladesh National Party (BNP). The applicant was also one of a number of people in immigration detention whose personal details were unintentionally published on a website maintained by the Department of Immigration.
The delegate made her decision on 11 July 2016. The decision was then referred to the IAA.
IAA decision
Amongst the documents sent to the IAA was a certificate made by the delegate under s.473GB of the Act. In it the delegate certified that, in her view, certain documents should not be disclosed to the applicant because, to do so would be contrary to the public interest.
The IAA did not disclose the existence of that certificate to the applicant. Indeed, prior to its decision, the only contact between the IAA and the applicant was a letter to the applicant acknowledging the referral of the delegate’s decision, explaining in outline the procedure to be adopted by the IAA and enclosing a document entitled “Practice Direction for Applicants, Representatives and Authorised Recipients.”
The IAA made its decision on 22 September 2016.
The IAA did not accept the applicant’s account of his marriage to a local Hindi girl as plausible and found that the applicant was not married to a Hindu and ostracised or disowned by their families.
The IAA accepted that the applicant had a past affiliation with the BNP and continues to be a supporter of that party but found that he would not be politically active on his return and faced no real risk of harm on account of his political opinion.
The IAA accepted that the applicant had been falsely charged and imprisoned for murder but was not satisfied that he was seen as a threat to the property in question and targeted by his extended family on his return.
The IAA did not accept that the applicant had an outstanding debt to a money lender and so found that he faced no real chance of harm from the money lender.
The IAA then considered the effect of the publication of the applicant’s personal details and concluded that that would not increase the risk of the applicant being harmed on his return to Bangladesh.
Finally, the IAA found that the applicant’s illegal departure would not give rise to a real chance of the applicant facing any penalties if he were to return to Bangladesh.
For those reasons, the IAA concluded that the applicant did not satisfy the criteria for the grant of a protection visa and affirmed the delegate’s decision.
Consideration
The applicant claims that the IAA denied him procedural fairness in two ways: first, by failing to sufficiently raise critical matters with him or extending him a real opportunity to reply to adverse information; and secondly, by refusing to have an oral interview with the applicant in circumstances where the applicant’s credibility was an important factor in the IAA’s decision.
The requirements of procedural fairness depend, to a large extent, on the statutory context in which the relevant exercise of power occurs. Here, on the assumption that pt.7AA of the Act applied, div.3 of that part, together with ss.473GA and 473GB, is an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the IAA: s.473DA(1).
The provisions in div.3 of pt.7AA mean that there is no obligation to interview the applicant. Indeed, sub-s.473DB(1)(b) requires the IAA, subject to the part, to conduct a review of the delegate’s decision without interviewing the applicant. Similarly, there is no free-standing obligation to give the applicant “adverse information” for comment. First, it was not required to give the applicant any information that was before the delegate (s.473DA(2)); and secondly, although there is a limited obligation to give an applicant particulars of “new information” (s.473DE), there is nothing to suggest that the IAA had any “new information” within the meaning of s.473DC(1) of the Act.
In those circumstances, there was no denial of procedural fairness and the grounds in the application are rejected.
At the hearing of the matter, I raised with the Minister the issue whether the certificate referred to at [94] above, might have given rise to an obligation to afford procedural fairness in a way similar to that considered by the Full Court of the Federal Court in Minister for Immigration & Border Protection v Singh (2016) 244 FCR 305 or by Beach J in MZAFZ v Minister for Immigration & Border Protection (2016) 243 FCR 1. It is unnecessary to consider the issue because the applicant, who was represented for most of the proceedings did not take the point. In any event, it would have been difficult to establish error in light of the decision in Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176 which was delivered after the issue was raised by me.
If I were wrong to conclude that the IAA did not have the authority to review the delegate’s decision, I would find that the decision of the IAA was not affected by jurisdictional error and would dismiss the application.
However, as I have found that the Instrument is invalid and, as a consequence, that the applicant did not enter Australia by sea at an excised offshore place, I will make the following declarations and order:
(i)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.
(ii)A declaration that the applicant is not an “unauthorised maritime arrival” within the meaning of s.5AA of the Migration Act 1958 (Cth).
(iii)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 Minister for Immigration and Border Protection dated 11 July 2016.
(iv)An order that a writ of certiorari issue quashing the decision of the second respondent made on 22 September 2016.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 11 July 2018
ATTACHMENT 1
This is the document described as Map referred to at [23] of this judgment.
ATTACHMENT 2
This is the document described as Exhibit GB9 referred to at [81] of this judgment.
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