DWS16 v Minister for Immigration - [2018] FCCA 3164

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 3164
Decision Date: 26 October 2018

CaseChat Overview and Summary

In the Federal Court of Australia, Judge Riley considered the application of DWS16 for judicial review concerning a decision made by the Minister for Immigration. The applicant sought to challenge the lawfulness of the Minister's decision to refuse to revoke a mandatory visa cancellation.

The central legal issue before the Court was whether the Minister, in considering the application to revoke the mandatory visa cancellation under section 501CA of the Migration Act 1958 (Cth), had failed to consider relevant considerations or had taken into account irrelevant considerations. Specifically, the applicant argued that the Minister had not adequately considered the best interests of a child who was a citizen of Australia and the applicant's child, as required by the Act.

Judge Riley reasoned that the Minister's obligations under section 501CA(4) required a comprehensive assessment of all relevant factors, including the best interests of any child affected by the decision. The Court found that the delegate of the Minister, in reaching the decision, had not given sufficient weight to the evidence presented regarding the child's best interests, particularly in relation to the impact of the applicant's removal from Australia. The Court applied the principles of administrative law concerning the proper exercise of discretionary powers, emphasizing that a failure to consider a mandatory consideration renders a decision invalid.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.

Orders