Enz17 v Minister for Immigration - [2018] FCCA 2561

FEDERAL CIRCUIT COURT OF AUSTRALIA

ENZ17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2561

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Applicant arrived on Ashmore Island with his rights being affected by the decision in DBD16 v Minister for Immigration& Anor [2018] FCCA 1801 – Application in a Case for summary judgment by Applicant – matter treated on a final hearing basis – declaration made that the Applicant was not an “unauthorised maritime arrival” and decision of Immigration Assessment Authority quashed.

Legislation:

Migration Act 1958 (Cth), ss.5AA, 66

Cases cited:

DBD16v Minister for Immigration & Anor [2018] FCCA 1801

Applicant:

ENZ17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 547 of 2017

Judgment of:

Judge Dowdy

Hearing date:

7 September 2018

Delivered at:

Sydney

Delivered on:

7 September 2018

REPRESENTATION

Counsel for the Applicant:

Mr P. Reynolds of Counsel

Solicitors for the Applicant:

Fragomen

Counsel for the Respondents:

Mr A. Markus

Solicitors for the Respondents:

Australian Government Solicitor

THE FINAL ORDERS OF THE COURT ARE AS FOLLOWS:

Declaration that the purported appointment of a port as a proclaimed port, an area of waters within the territory of Ashmore and Cartier Islands, by notice published in the Commonwealth Gazette number GN 3 on 23 January 2002 is invalid.
Declaration that the Applicant is not an “unauthorised maritime arrival” within the meaning of s.5AA of the Migration Act 1958 (Cth).
Declaration that the Applicant has not been notified pursuant to s.66 of the Migration Act 1958 (Cth) of the decision of the Delegate of the First Respondent dated 14 February 2017.
That a writ of certiorari issue quashing the decision of the Second Respondent made on 21 September 2017.
That the First Respondent pay the Applicant’s costs of the proceeding in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 547 of 2017

ENZ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

This proceeding has been in the docket of his Honour Judge Smith. It was commenced by Application filed by the Applicant on 10 October 2017 but did not yet have a final hearing date. An approach was made by the Applicant this morning for the matter to be listed before me as Duty Judge.
There is before me an Application in a Case dated 6 September 2018 which I have just given the Applicant leave to file. It seeks summary judgment arising out of the fact that the Applicant arrived on Ashmore Island and that his arrival there and his rights are affected by the decision of his Honour Judge Smith in DBD16v Minister for Immigration & Anor [2018] FCCA 1801 (DBD16) which has recently been affirmed by the Full Court of the Federal Court of Australia, but which Court has not yet delivered reasons.
In those circumstances, I am bound by the reasons and the effect…

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.

Keep reading for free

Create a free CaseChat account to read Enz17 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FCCA 2561
Decision Date: 7 September 2018

CaseChat Overview and Summary

The applicant, Enz17, arrived on Ashmore Island and sought a declaration that he was not an "unauthorised maritime arrival" under the *Migration Act 1958* (Cth). The applicant's rights were affected by the decision in *DBD16 v Minister for Immigration & Anor* [2018] FCCA 1801. The matter was treated on a final hearing basis, with the applicant applying for summary judgment. The court was the Federal Circuit Court of Australia.

The central legal issue before the court was whether the applicant qualified as an "unauthorised maritime arrival" within the meaning of the *Migration Act 1958* (Cth), given his arrival on Ashmore Island and the circumstances surrounding it. This determination was crucial for establishing the applicant's legal status and the applicability of certain provisions of the Act.

Dowdy J reasoned that the applicant's arrival on Ashmore Island did not render him an "unauthorised maritime arrival" as defined by the Act. The court applied the principles established in relevant case law, which clarified the scope of this definition, particularly in relation to arrivals on Australian territory like Ashmore Island. Consequently, the court made a declaration that the applicant was not an unauthorised maritime arrival and quashed the decision of the Immigration Assessment Authority.

Orders