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

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.
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).
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.
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)

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.
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…

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 2374
Decision Date: 13 August 2018

CaseChat Overview and Summary

The applicant, EPG17, sought judicial review of a decision made by the Immigration Assessment Authority (IAA). The core of the dispute concerned whether the IAA possessed the legal authority to review the applicant's protection visa application, particularly in light of a prior decision by the Full Court of the Federal Court in *DBB16 v Minister for Immigration & Anor*. The matter came before Judge Smith of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the applicant qualified as an "unauthorised maritime arrival" for the purposes of the *Migration Act 1958* (Cth). This determination was critical because it would establish whether the IAA had jurisdiction to review the applicant's protection visa application. The applicant contended that, following the Full Court's reasoning in *DBB16*, they were not an unauthorised maritime arrival.

Judge Smith reasoned that the definition of "unauthorised maritime arrival" was central to the IAA's jurisdiction. Applying the principles established in *DBB16*, the Court found that the applicant did not meet the criteria of an unauthorised maritime arrival. Consequently, the IAA lacked the statutory authority to review the applicant's protection visa application.

The Court made declarations that the applicant was not an unauthorised maritime arrival and that the IAA had no jurisdiction to review the applicant's protection visa application.

Orders