DWS16 v Minister for Immigration
[2018] FCCA 3164
•26 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DWS16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3164 |
| Catchwords: MIGRATION – Immigration Assessment Authority – safe haven enterprise visa – Ashmore Reef – whether final hearing should be expedited – final hearing already listed in 16 days’ time – Minister not opposing substantive orders to be sought at final hearing – convenient to deal with matter on a final basis instanter. |
| Legislation: Judiciary Act 1903, s.39B Migration Act 1958, ss.5AA, 66 Migration (Validation of Port Appointment) Bill 2018 |
| Cases cited: DBA16 v Minister for Home Affairs [2018] FCA 1539 DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178 Warramunda Village Incorporated v Pryde (2002) 116 FCR 58; (2002) 113 IR 265; [2002] FCA 250 |
| Applicant: | DWS16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File number: | PEG 573 of 2016 |
| Judgment of: | Judge Riley |
| Hearing date: | 26 October 2018 |
| Date of last submission: | 26 October 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 26 October 2018 |
REPRESENTATION
| Counsel for the applicant: | Georgina Costello |
| Solicitors for the applicant: | MP Migration Law |
| Advocate for the first respondent: | Katherine Whittemore |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | Sparke Helmore Lawyers |
ORDERS
The applicant have leave to file and serve an amended application substantially in the form of the proposed further amended application contained in annexure MP-3 to the affidavit affirmed by Maria Psihogios on 22 October 2018.
This proceeding, insofar as it relates to ground 3 of the further amended application, be made returnable and heard instanter on a final basis.
DECLARATION
The applicant is not an “unauthorised maritime arrival” within the meaning of s.5AA of the Migration Act 1958 (“the Act”).
ORDER
A writ of certiorari issue quashing the decision of the second respondent dated 28 October 2016.
DECLARATION
The applicant has not been notified pursuant to s.66 of the Act of the decision of a delegate of the first respondent dated 22 September 2016.
ORDER
The first respondent pay the applicant’s costs of and incidental to the proceeding fixed in the sum of $3,737.
NOTATION
The Full Court of the Federal Court of Australia declared in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178 that 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 22 January 2002, is invalid.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
PEG 573 of 2016
| DWS16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Revised from the Transcript)
Before the court is an application in a case filed on 22 October 2018 in the context of an Ashmore Reef migration matter. The applicant seeks leave to amend his application to include the Ashmore Reef point that was dealt with by the Full Court of the Federal Court in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178. The Minister does not oppose that amendment being made.
The application in a case also seeks that the application as amended to include the new ground be made returnable and heard instanter. The application in a case as drafted sought summary judgment. However, the applicant now seeks that the matter be determined on a final basis today.
The Minister indicated that he preferred that the application in a case be heard and determined today. The Minister does not oppose the substantive orders sought by the applicant on a final basis. However, the Minister opposes the final hearing being expedited.
The Minister relied on the decision of Justice Wheelahan in DBA16 v Minister for Home Affairs [2018] FCA 1539 where his Honour refused to expedite an Ashmore Reef case. The circumstances of DBA16 are somewhat different to the present case. In DBA16, the applicant had already run a number of arguments against the decision of the Immigration Assessment Authority and his application in that regard had been dismissed. However, the applicant then sought to file a new application relying on DBB16 and sought an extension of time in this court for that purpose.
Judge Kirton of this court refused the extension of time application. Her Honour considered that the new proposed ground was hopeless because it would be successfully met by an Anshun estoppel argument.
The applicant in DBA16, having no right of appeal to the Federal Court of Australia against the refusal of an extension of time, brought an application in the Federal Court under s.39B of the Judiciary Act 1903. In determining that application, Justice Wheelahan considered various authorities, particularly relating to the issue of whether a court should alter its normal hearing arrangements because of a prospective change in the applicable legislation. His Honour concluded that, as a general rule, it is not appropriate to do so.
There is a bill before the Parliament entitled the Migration (Validation of Port Appointment) Bill 2018. I am told that it has passed the House of Representatives and was referred to the Senate Legal and Constitutional Affairs Legislation Committee. That committee reported on 12 September 2018. It seems that, in theory at least, the bill could be passed by the Senate at any time. However, as the matter stands, it is understood that the bill has not been passed by the Senate.
In any event, Justice Wheelahan, in DBA16, also referred to a decision of Justice Finkelstein in Warramunda Village Incorporated v Pryde (2002) 116 FCR 58; (2002) 113 IR 265; [2002] FCA 250, where his Honour also reviewed relevant authorities and said at paragraph 63:
It follows that a court will not fall into error for bringing a case on for hearing earlier than the appointed day, provided it can be heard without injustice to any party to the proceeding, or to parties in other litigation that may also have a just claim on the judge’s time.
Justice Wheelahan in DBA16 decided not to expedite the matter. His Honour did make orders for written submissions to be filed within a week. However, his Honour expressly said that the matter would be referred to the National Operations Registrar for listing in the normal way.
I am told that there was a recent decision of Judge Street of this court in which his Honour refused an application for expedition in an Ashmore Reef case. The situation in the present matter is that it is listed for final hearing on 12 November 2018, which is 16 days away. The matter before Judge Street, I understand, was to be listed in the normal way, which would possibly mean a final hearing in a year or more, given the backlog in the court’s lists.
The present matter is different to Judge Street’s matter in that all I am asked to do is bring the final hearing forward by 16 days. The Minister indicated that he did not wish to put on any other material or oppose the substantive application. His position is that he only opposes the expedition of the final hearing.
In these circumstances, it seems to me that, applying the dicta of Justice Finkelstein in Warramunda Village, it is appropriate to deal with this matter on a final basis today. That will at least save the parties the costs of another appearance. Although there may be a change in the legislation, Justice Wheelahan’s decision means that I should not factor that in.
The Minister submitted that he may seek special leave to appeal against the decision of the Full Court of the Federal Court in DBB16. However, no decision has been made by the Minister as yet in that regard. I cannot deal with this matter on the basis that DBB16 is anything other than presently binding on this court.
In circumstances where:
a)there is binding authority in the form of DBB16;
b)the Federal Court said in DBA16 that I should not take into account the possible effect of bills before the Parliament;
c)the present case is different from the matter heard by Judge Street recently because the final hearing in the present case is scheduled only 16 days away;
d)this case is factually different to DBA16 because it does not require an extension of time and there is no Anshun estoppel point; and
e)the Minister opposes expedition but not the substantive orders sought on a final basis,
it seems to me to be appropriate to make orders for the matter to be heard on a final basis today while the matter is already before the court.
For the reasons set out in DBB16, there will be orders, largely as sought by the applicant.
The applicant sought that the Minister pay his costs on the basis that this was a final hearing. The applicant sought the usual amount for the costs of a final migration hearing, being $7,467 on scale. The Minister submitted that the appropriate amount was $3,737, being the amount on scale for an interlocutory hearing in a migration matter.
Although the matter has proceeded today on a final basis, it was listed as an interlocutory hearing and the scale fee for that is $3,737. I appreciate that the matter is quite close to what was scheduled as the final hearing and some preparation may have been done for it. However, the applicant has not yet filed written submissions.
It seems to me in the circumstances that the proper amount for costs in this case is $3,737, being the scale amount for an interlocutory hearing. There will be a costs order in that amount.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 2 November 2018
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