FEDERAL CIRCUIT COURT OF AUSTRALIA
| DBD16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1801 |
| 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: |
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- Case
- [2018] FCCA 1801
- Decision Date
CaseChat Overview and Summary
The court was required to determine several key legal issues. Primarily, it had to consider whether the Minister could lawfully appoint a port over waters within the Territory of Ashmore and Cartier Islands under section 5(5) of the *Migration Act*. This involved examining whether the appointment was for the "purposes" of the Act, and whether the term "port" in this context necessitated pre-existing infrastructure, regularity of trade, or the presence of immigration personnel. Further sub-issues included whether the appointment was a valid exercise of the Commonwealth's "trade or commerce" or "external affairs" powers, whether it constituted an unconstitutional exercise of legislative power, and whether it was a disproportionate exercise of the Minister's statutory powers. Additionally, the court had to assess the facial validity of the instrument of appointment, specifically concerning an alleged omission of a degree of longitude and the incorporation of a reference to "mean low water."
In its reasoning, the court analysed the definition of "migration zone" and "port" within section 5 of the *Migration Act*. It noted that a "proclaimed port" could be appointed by the Minister under subsection 5(5). The court considered the applicant's arguments regarding the interpretation of "port," including the necessity of infrastructure and trade. However, the applicant ultimately conceded that they had entered the area described in the instrument, thereby removing the need for the court to definitively rule on the factual question of entry. The court's judgment focused on the legal challenges to the validity of the proclaimed port appointment itself.
The court found that the instrument of appointment was invalid on its face due to an omission of a degree of longitude. Consequently, the purported appointment of the proclaimed port was held to be invalid. As a result, the court ordered that the appeal be allowed and the decision of the delegate of the Minister be set aside.
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Background
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Ratio Decidendi
Legal Principle Established
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. 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)