DLQ16 v Minister for Immigration

[2018] FCCA 3543

FEDERAL CIRCUIT COURT OF AUSTRALIA

DLQ16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3543

Catchwords:
MIGRATION – Application for judicial review – protection application – whether applicant was an unauthorised maritime arrival – Ashmore and Cartier Islands – no matters of principle – writ issued.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

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

First Applicant: DLQ16

Second Applicant: DLR16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2498 of 2016

Judgment of: Judge Riethmuller

Hearing date: 15 October 2018

Date of Last Submission: 15 October 2018

Delivered at: Melbourne

Delivered on: 15 October 2018

REPRESENTATION

Counsel for the Applicants: Mr Crowley

Solicitors for the Applicants: Victoria Legal Aid

Solicitors for the First Respondent: Mills Oakley

THE COURT ORDERS THAT:

1. The hearing of the proceeding insofar as it relates to Orders 1 to 3 of the application in a case be expedited to take place at the hearing of the interlocutory application on 15 October 2018.

THE COURT DECLARES THAT:

1. 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 No. GN 3 on 23 January 2002, is invalid.

2. The Applicants are not “unauthorised maritime arrivals” within the meaning of s.5AA of the Migration Act 1958 (Cth) (“the Act”).

3. The Applicants have not been notified pursuant to s.66 of the Act of the decision of a delegate of the First Respondent dated 25 July 2016.

THE COURT FURTHER ORDERS THAT:

1. A writ of certiorari issue quashing the decision of the Second Respondent dated 25 October 2016.

2. The First Respondent pay the Applicants’ costs fixed in the amount of $5,227.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2498 of 2016

DLQ16

First Applicant

DLR16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

1. In this matter, the First Respondent conceded that the facts in all relevant aspects are sufficiently similar to those dealt with recently by the Full Court of the Federal Court of Australia with respect to the Ashmore Reef cases: see DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178. Therefore, the orders that must follow in accordance with that authority are for declarations and constitutional relief.

2. As with all of these cases, the First Respondent specifically keeps open the option of appealing should the Full Court authority be appealed to the High Court of Australia, or in some other way overturned or altered.

3. In the circumstances, I therefore make orders in terms of the draft provided by the parties.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  3 December 2018