Env17 and Ors v Minister for Immigration and Anor (No.2)

[2018] FCCA 3299

FEDERAL CIRCUIT COURT OF AUSTRALIA

ENV17 & ORS v MINISTER FOR IMMIGRATION & ANOR (No.2) [2018] FCCA 3299

Catchwords:
MIGRATION – Invalid proclamation of port – applicants not fast track applicants within Part 7AA – declarations made and writ issued.

Legislation:

Migration Act 1958 (Cth), ss.66, 476

Cases cited:

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

First Applicant: ENV17

Second Applicant: ENW17

Third Applicant: ENX17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESMENT AUTHORITY

File Number: SYG 3138 of 2017

Judgment of: Judge Street

Hearing date: 13 November 2018

Date of Last Submission: 13 November 2018

Delivered at: Sydney

Delivered on: 13 November 2018

REPRESENTATION

Solicitors for the Applicant: Mr M Jones
Parish Patience Immigration Lawyers

Counsel for the Respondents: Mr N Swan

Solicitors for the Respondents: HWL Ebsworth Lawyers

ORDERS

THE COURT DECLARES THAT:

1. The purported appointment of a port as a proclaimed port being an area of waters within the Territory of Ashmore and Cartier Islands, by notice published in the Commonwealth 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).

3. The applicants have not been notified pursuant to s 66 of the Migration Act 1958 (Cth) of the decision of a delegate of the Minister for Immigration and Border Protection dated 19 June 2017.

THE COURT ORDERS THAT:

1. A writ in the nature of certiorari is issued calling up the record of the second respondent and quashing the decision of the second respondent made on 18 September 2017.

2. The first respondent pay the applicants costs including the reserved costs fixed in the amount of $7,467.00.

DATE OF ORDER: 13 November 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3138 of 2017

ENV17

First Applicant

ENW17

Second Applicant

ENX17

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ and also declarations within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 18 September 2017. 

2. The first and second applicants are the parents of the third applicant and are citizens of Albania. The first respondent accepts that the applicants in the present case fall within the circumstances identified by the Full Court of the Federal Court of Australia in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178 and that in these circumstances the applicants are not fast track applicants falling within Part 7AA.

3. The applicants have not been notified in accordance with s 66 of the Act and given that this Court is bound by the Full Court of the Federal Court of Australia, the publication in the Commonwealth Gazette No GN 3 on 23 January 2002 of the area of waters as a proclaimed port is invalid. 

4. The first respondent formally submits that the decision in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178 was wrong, but accepts this Court is bound by that decision, and further accepts that this Court is bound by the law as it presently exists in its ordinary course of hearings.

5. I am satisfied in these circumstances that the applicants are entitled to appropriate declarations and orders. 

6. Accordingly, the Court makes declarations and orders.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 15 November 2018