EPG17 v Minister for Immigration

[2018] FCCA 2374

FEDERAL CIRCUIT COURT OF AUSTRALIA

EPG17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2374

Catchwords:
MIGRATION – Application for protection visa – review of decision of Immigration Assessment Authority (IAA) – application for summary judgment – whether the IAA had authority to review decision – whether the applicant was an unauthorised maritime arrival in light of decision of the Full Court of the Federal Court in DBB16 v Minister for Immigration & Anor – applicant found not to be unauthorised maritime arrival – declarations made.

Legislation:

Federal Circuit Court Act 1999 (Cth), s.17A

Migration Act 1958 (Cth), ss.66, 67, 412, 414, pts.5 and 7

Cases cited:

DBC16 v Minister for Immigration & Anor [2018] FCCA 1802
DBD16 v Minister for Immigration & Anor [2018] FCCA 1801

Spencer v Commonwealth [2018] FCAFC 17

Applicant: EPG17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 552 of 2017

Judgment of: Judge Smith

Hearing date: 13 August 2018

Date of Last Submission: 13 August 2018

Delivered at: Sydney (Melbourne by video link)

Delivered on: 13 August 2018

REPRESENTATION

Counsel for the Applicant: Mr A McBeth

Solicitors for the Applicant: Estrin Saul Lawyers

Counsel for the Respondents: Ms R Graycar

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. A declaration be made 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 of Australia Gazette No GN 3 on 23 January 2002 is invalid.

2. A declaration be made that the applicant is not an “unauthorised maritime arrival” within the meaning of s.5AA of the Migration Act 1958 (Cth).

3. A declaration be made that the applicant has not been notified pursuant to s.66 of the Migration Act 1958 (Cth) of the decision of a delegate of the first respondent dated 24 July 2017.

4. The first respondent pay the applicant’s costs as agreed or as taxed pursuant to pt.40 of the Federal Court Rules 2011 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 552 of 2017

EPG17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Immigration Assessment Authority dated 13 September 2017 on review of a decision made by a delegate of the Minister to refuse to grant the applicant a protection visa.

2. The applicant’s amended application contained a ground asserting that the Authority did not have jurisdiction to review that decision. This was essentially because, contrary to the way in which the applicant had been treated since his arrival in Australia, he was not and never had been, an unauthorised maritime arrival.  The consequence of that, in the cascaded definition of a fast-track applicant in respect of which the Authority does have jurisdiction, is that the applicant, briefly stated, was never subject to the fast-track regime and so the Authority never had jurisdiction.

3. The issue is based on the question of whether a proclamation made by the Minister for Immigration on 23 January 2002, concerning an area within the territory of Ashmore and Cartier Islands, was valid. 

4. In DBC16 v Minister for Immigration & Anor [2018] FCCA 1802 and DBD16 v Minister for Immigration & Anor [2018] FCCA 1801, I decided that that proclamation was invalid because the area described in it did not fall within the meaning of “port” in the Migration Act1958 (Cth), and so it was beyond the power of the Minister to make that proclamation, in the exercise of his power, to proclaim a port as a proclaimed port.

5. Subsequent to my decisions, the Full Court of the Federal Court in DBB16 v Minister for Immigration & Anor made declarations in terms relatively identical to the declarations made by me in respect of the proclamation and consequential declarations.

6. The issue arises because, on the evidence before me, the applicant was one of a number of people on a boat at sea that was intercepted by the Australian customs vessel “Ocean Protector” on 18 April 2013, and who were then embarked onto that vessel.  The evidence is that that vessel went into the area which was described in the proclamation of 23 January 2002, however there was no disembarkation until the vessel arrived in the port of Darwin some time later.

7. On the law as it stands, in my view, it is beyond argument that the applicant first arrived in Australia in Darwin rather than at an excised offshore area. For that reason, the applicant was not an unauthorised maritime arrival.  I use the term “beyond argument”, although I do not need to go that far; I am being asked to exercise the power under s.17A of the Federal Circuit Court Act 1999 (Cth), which posits a somewhat more lenient test although one to be exercised with considerable caution: see Spencer v Commonwealth (2010) 241 CLR 118.

8. The application is opposed by the Minister on two basic grounds: the first that there is some argument that my decisions in DBC16 and DBD16 might be wrong given that there were other common meanings of the word “port”, and that the Full Court of the Federal Court has not yet given reasons for its decision in the matter of DBB16.  No substantive argument was made before me as to why I might have been wrong in DBC16 or DBD16 other than what I have stated, and that is insufficient for my mind, in light of the orders made by the Full Court in DBB16, to undermine the strength of this case as it stands. 

9. The second argument for which summary judgment was resisted was the stated desire by the Minister to adduce evidence to establish that, in fact, the area referred to or described in the proclamation did come within the meaning of “port” as I construed it in DBC16 and DBD16.  There are a number of difficulties with that argument. 

10. First, this matter has been on foot for some time.  There have been orders for evidence, and evidence has been put on by the Minister.  No evidence concerning the nature of the area within the territory of Ashmore and Cartier Islands has been so far adduced and leave would need to be sought and granted in order for the character of the proceedings to change; in other words, to allow the Minister to put that into issue.

11. Secondly, when this application for summary judgment was first listed for directions, the Minister indicated that there would be no evidence adduced or perhaps more accurately, did not indicate that there would be any contest about the nature of the area in the territory of Ashmore and Cartier Islands, and in particular whether or not it did fall within the meaning of “port” as construed by me.

12. Thirdly, there is no description at all in the evidence before me of what that evidence might be. It seems to me rather a hopeful matter, rather than one that was formed on the basis of material that is currently available to the Minister.

13. Given the fact that there has been a declaration by the Full Court which effectively puts to rest the issues that had been before me in DBC16 and DBD16, and which puts to rest the issue that arises in this matter and the factual outline that I have given above concerning the arrival of the applicant in Australia, I am satisfied that the power to grant summary judgment arises and I can see no discretionary reason to refuse it.  Accordingly, I will therefore make declarations 2, 3 and 4 in the applicant’s amended application.

14. The applicant also seeks a writ of mandamus directed to the first respondent to notify the applicant, pursuant to s.66 of the Act, of the decision of the delegate of the first respondent dated 24 July 2017. The purpose of seeking that is, so I am told, to enable the applicant to make an application to the Administrative Appeals Tribunal for review of the delegate’s decision. This is based upon an understanding that the jurisdiction of that Tribunal to review depends upon lawful notification by the delegate of its decision.

15. I do not agree with that submission. Section 414 of the Act requires the Tribunal to review a decision when a valid application is made under s.412 for a review of a pt.7 reviewable decision. Section 412 requires an application for review of such a decision to:

    (1)...

    (a)be made in the approved form;  and

    (b)be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and

    ...

    In my view, the plain meaning of sub-s.412(1)(b) is that it prescribes a period within which an application may be made by reference to the end of that period, rather than the commencement of it. 

16. A pt.7 reviewable decision being in this case, the decision of the Minister to refuse to grant the applicant a protection visa, was made for the purposes of the Act including pt.7, in circumstances described in s.67 of the Act rather than s.66. Section 67 of the Act provides that the decision to refuse to grant a visa is “...taken to be made by the Minister causing a record to be made of the decision ...” and it goes on to state that “the record must state the day and time of its making”.

17. There is some issue about what the record must be, however I can see no reason why, for present purposes, the statement of the delegate’s reasons could not be taken to be a record of it although, of course, it does not necessarily state the day and time of its making.

18. Section 66, by contrast, operates once the decision has been made and it is at that point that the Minister is required to notify an applicant of the decision in the prescribed way. Prescription is necessary for the purposes of certainty of the administration of the Act, and in particular to identify the time in which the period for bringing an application for review under pt.7 relevantly (or even pt.5), ends rather than commences, as I have noted in respect of s.412 of the Act already.

Conclusion

1. For those reasons, this is a matter in which summary judgment ought to be given and I will make declarations 2, 3 and 4 as set out in the amended application.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:       28 August 2018