FEDERAL CIRCUIT COURT OF AUSTRALIA
| DSM16 v MINISTER FOR IMMIGRATION | [2018] FCCA 1615 |
| Catchwords: MIGRATION – Judicial review – Application for Safe Haven Enterprise Visa – decision of delegate – refusal of visa – whether applicant satisfied criteria for excluded fast track applicant – whether provision of bogus document – whether delegate erred in interpreting s.5(1)(a)(vi) of the Migration Act 1958 (Cth) – whether failure to comply with s.57(2) of the Migration Act 1958 (Cth) – delegate’s decision affected by error – writs issued. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.15 Pts. 5, 7 |
| Applicant: | DSM16 |
| Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| File Number: | PEG 596 of 2016 |
| Judgment of: | Judge Kendall |
| Hearing date: | 12 April 2018 |
| Date of Last Submission: | 12 April 2018 |
| Delivered at: | Perth |
| Delivered on: | 21 June 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Jahnke |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the Respondent: | Mr P. MacLiver |
| Solicitors for the Respondent: | Sparke Helmore Lawyers |
ORDERS
A writ of certiorari issue quashing the decision of the respondent dated 18 November 2016.
A writ of mandamus issue directed to the respondent requiring it to determine the applicant’s application according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 596 of 2016
| DSM16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER… |
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Details
- Case
- [2018] FCCA 1615
- Decision Date
CaseChat Overview and Summary
The applicant, DSM16, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned whether a particular decision made by the Minister was a "primary decision" for the purposes of section 476(4) of the Migration Act 1958 (Cth). The matter came before Judge Kendall of the Federal Circuit and Family Court of Australia.
The central legal issue before the Court was to determine the characterisation of the Minister's decision in light of the definitions provided in the Migration Act. Specifically, the Court had to ascertain whether the decision fell within the definition of a "primary decision" as defined by s 476(4), which in turn required an examination of the provisions relating to "fast track decisions" and "fast track review applicants".
The Court's reasoning focused on the statutory definitions. It noted that a "fast track decision" is not reviewable under Parts 5 or 7 or section 500 of the Act. A "fast track review applicant" is a "fast track applicant" who is not an "excluded fast track review applicant". The applicant met the criteria for a "fast track applicant" as an unauthorised maritime arrival who entered Australia within the specified period and to whom the Minister had given notice under s 46A(2) allowing a protection visa application. However, the delegate's assessment of the applicant as an "excluded fast track review applicant" under s 5(1)(a)(vi) of the Act was critical. This subsection defines an excluded fast track review applicant as one who, in the opinion of the Minister, provides a bogus document without reasonable explanation in support of their application. The Court applied these definitions to the facts, implying that if the applicant was an excluded fast track review applicant, the decision would not be a "fast track decision" and therefore potentially a "primary decision" under s 476(4).
The provided text does not state the final orders or outcome of the case.
The central legal issue before the Court was to determine the characterisation of the Minister's decision in light of the definitions provided in the Migration Act. Specifically, the Court had to ascertain whether the decision fell within the definition of a "primary decision" as defined by s 476(4), which in turn required an examination of the provisions relating to "fast track decisions" and "fast track review applicants".
The Court's reasoning focused on the statutory definitions. It noted that a "fast track decision" is not reviewable under Parts 5 or 7 or section 500 of the Act. A "fast track review applicant" is a "fast track applicant" who is not an "excluded fast track review applicant". The applicant met the criteria for a "fast track applicant" as an unauthorised maritime arrival who entered Australia within the specified period and to whom the Minister had given notice under s 46A(2) allowing a protection visa application. However, the delegate's assessment of the applicant as an "excluded fast track review applicant" under s 5(1)(a)(vi) of the Act was critical. This subsection defines an excluded fast track review applicant as one who, in the opinion of the Minister, provides a bogus document without reasonable explanation in support of their application. The Court applied these definitions to the facts, implying that if the applicant was an excluded fast track review applicant, the decision would not be a "fast track decision" and therefore potentially a "primary decision" under s 476(4).
The provided text does not state the final orders or outcome of the case.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Section 476(4) of the Act defines “primary decision” as follows: (4) In this section: “primary decision” means a privative clause decision or purported privative clause decision: (a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or (b) that would have been so reviewable if an application for such review had been made within a specified period; or (c) that has been, or may be, referred for review under Part 7AA (whether or not it has been reviewed). Part 7AA of the Act provides that decisions to refuse to grant protection visas to “fast track review applicants” must generally be referred to the Immigration Assessment Authority. Decisions of this nature which do not rely on s.5H(2); s.36(1B) or (1C) or paragraph 36(2C)(a) or (b) are “fast track decisions”. As rightly pointed out by Judge Smith in ASF17 v Minister for Immigration [2017] FCCA 2498, a “fast track decision” is not reviewable either under pts.5 or 7 or s.500 of the Act: sub-ss.338(1)(d), 411(2)(c) and s.500(3) (at [5]). Section 5(1) of the Act defines “fast track review applicant” to mean a “fast track applicant” who is not an “excluded fast track review applicant”. Section 5(1) of the Act defines a “fast track applicant” as a person:(i)who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and (ii)to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and (iii)who has made a valid application for a protection visa in accordance with the determination; … It is not in dispute that the applicant is unauthorised maritime arrival within the meaning of s.5AA(1) of the Act. It is also undisputed that the Minister exercised the power under s.46A(2) of the Act allowing the applicant to lodge an application for a protection visa, which he did on 3 June 2016. The applicant therefore satisfies the criteria for a “fast track applicant” under s.5(1) of the Act. Section 473BB of the Act defines “fast track reviewable decision” as a “fast track decision” in relation to a “fast track review applicant”. Section 473CA of the Act provides that the Minister must refer a “fast track reviewable decision” to the Immigration Assessment Authority as soon as reasonably practicable after the decision is made. However, as is relevant to this matter, “fast track review applicant” means a “fast track applicant” who is not an “excluded fast track review applicant”: s.5(1) of the Act. The delegate of the Minister’s EFTRA Assessment of the applicant turned on s.5(1)(a)(vi) of the Act. Relevantly, s.5(1)(a)(vi) defines an “excluded fast track review applicant” as follows:“excluded fast track review applicant” means a fast track applicant: (a) who, in the opinion of the Minister:…(vi)without reasonable explanation provides, gives or presents a bogus document to an officer of the Department or to the Minister (or causes such a document to be so provided, given or presented) in support of his or her application; or
Ratio Decidendi
Legal Principle Established
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