DBC16 v Minister for Immigration & Anor

The applicant, DBC16, sought judicial review of a decision by the Minister for Immigration and Anor. The central dispute concerned the validity of a purported appointment of a proclaimed port within the Territory of Ashmore and Cartier Islands under the *Migration Act 1958* (Cth). The matter came before Smith J.

The court was required to determine whether the Minister's instrument, purporting to appoint an area of waters within the Territory of Ashmore and Cartier Islands as a proclaimed port, was a valid exercise of power under section 5(5)(a) of the *Migration Act*. This involved several sub-issues, including whether the Minister could lawfully appoint such a port under that section, considering the purpose of the appointment, the meaning of "port" in the context of the Act, and whether the appointment was consistent with the Commonwealth's constitutional powers, specifically the trade and commerce power and the external affairs power. The court also had to consider whether the appointment was an unconstitutional exercise of legislative power or a disproportionate exercise of the Minister's powers.

Smith J analysed the definition of "migration zone" and "port" within section 5 of the *Migration Act*. The court considered the applicant's arguments that the definition of "port" implied a need for pre-existing infrastructure, regularity of trade, or the presence of immigration personnel. However, the court found that the Minister's power under section 5(5)(a) was to appoint ports in external territories, and the instrument in question was published in the Gazette as required. The court noted that the applicant ultimately conceded that they had entered the area described in the instrument, removing that factual dispute from consideration. The court's reasoning focused on the interpretation of the statutory provisions and the scope of the Minister's delegated power.

The court ultimately found that the purported appointment of the proclaimed port was invalid. The reasoning for this invalidity was not fully detailed in the provided text, but it was stated that the court was required to consider the validity of the instrument on its face, including issues related to the omission of a degree of longitude and the reference to "mean low water."