FCY17 v Minister for Immigration; and Anor

[2018] FCCA 2552

FEDERAL CIRCUIT COURT OF AUSTRALIA

FCY17 v MINISTER FOR IMMIGRATION
& ANOR [2018] FCCA 2552

Catchwords:
MIGRATION – Immigration Assessment Authority – application for protection visa – whether the applicant was an unauthorised maritime arrival in light of the 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:

Migration Act 1958 (Cth)

Federal Circuit Court of Australia Act 1999 (Cth)
Federal Circuit Court Rules 2001 (Cth)

Cases cited:

DBB16 v Minister for Immigration & Anor NSD 354/2017

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

Spencer v Commonwealthof Australia [2010] HCA 28; 241 CLR 118

Applicant: FCY17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 2531 of 2017

Judgment of: Judge Mercuri

Hearing date: 27 August 2018

Date of Last Submission: 27 August 2018

Delivered at: Melbourne

Delivered on: 27 August 2018

REPRESENTATION

Counsel for the applicant: Mr McBeth

Solicitors for the applicant: Victoria Legal Aid

Counsel for the respondents: Mr Cunynghame

Solicitors for the respondents: Sparke Helmore

DECLARATIONS

1. The purported appointment of a port as a proclaimed port and area of waters within the territory of Ashmore and Cartier Islands by notice published in the Commonwealth of Australia Gazette number GN 3 on 23 January 2002 is invalid.

2. The applicant is not an ‘unauthorised maritime arrival’ within the meaning of section 5AA of the Migration Act 1958 (Cth).

3. The applicant has not been notified pursuant to section 66 of the Migration Act 1958 (Cth) of the decision of a delegate of the first respondent dated 22 February 2017.

ORDERS

1. The applicant be granted leave to file an amended application in the form of annexure HS-2 to the affidavit of Hannah Sycamore dated

   
   

   2 August 2018 (“the amended application”).

2. The applicant’s application for summary judgment in respect of

   
   

   ground 4 of the amended application be made returnable and heard immediately.

3. Pursuant to section 17A of the Federal Circuit Court of Australia Act 1999 (Cth) or alternatively rule 13.07 of the Federal Circuit Court Rules 2001 (Cth), there be summary judgment for the applicant in respect of ground 4 of the amended application.

4. A writ of certiorari issue quashing the decision of the second respondent made on 24 October 2017.

5. Pursuant to section 66 of the Migration Act 1958 (Cth), a writ of mandamus issue directing the first respondent to forthwith notify the appellant of the decision of a delegate of the first respondent dated

   
   

   22 February 2017.

6. The first respondent pay the applicant’s costs fixed in the sum of $5,174.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2531 OF 2017

FCY17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for summary judgment under section 17A of the Federal Circuit Court of Australia Act 1999 (Cth) and

   
   

   rule 13.07(1)(b)(ii) of the Federal Circuit Court Rules 2001 (Cth). A court should only exercise its powers to grant summary judgment cautiously. Relevantly for present purposes, and put simply, the test for granting summary judgment is that the opposing party does not have reasonable prospects of successfully defending the claim.

3. The issue before me is whether the facts and circumstances in this case are such that this court should be satisfied that this test has been met, in particular in relation to ground 4 of the applicant’s amended application and, if so, whether the orders sought should be granted.

4. I will turn just briefly to summarise some of the procedural background in this matter. The applicant applied for a protection visa by application dated 12 February 2016. On 22 February 2017, a delegate of the Minister for Immigration and Border Protection (“the Minister”) refused that application. As the applicant’s application for protection visa was treated as a ‘fast track application’ under Part 7AA of the

   
   Migration Act 1958

   (Cth), the decision was referred to the

   
   

   Immigration Assessment Authority (“IAA”) for review.

5. On 24 October 2017, the IAA affirmed the delegate’s decision to refuse to grant the applicant a protection visa.  By application filed

   
   

   23 November 2017, the applicant sought judicial review of the IAA’s decision.  On 17 August 2018, the applicant filed an application in a case in which he sought orders permitting him to file an amended application and seeking summary judgment in respect of ground 4 of that amended application.  That application in a case was listed before me today.

6. The Minister did not oppose leave being granted to permit the applicant filing an amended application, and as such leave was granted.  The hearing before me then proceeded on the question of whether the applicant’s application for summary judgment ought to be granted, and the orders sought in the application made. 

7. I will just briefly turn to the context in which this application was made. As noted, the applicant’s application was dealt with under Part 7AA of the Migration Act 1958 (Cth) as a ‘fast track application’. This approach was taken on the basis that the applicant was an ‘unauthorised maritime arrival’. It was submitted on behalf of the applicant that the applicant’s situation falls squarely within the determination of the Full Court of the Federal Court in

   
   DBB16 v Minister for Immigration & Anor

   NSD 354/2017 (“DBB16”) and that this court is therefore bound to find that the IAA had no jurisdiction to review the delegate’s decision in the applicant’s case. 

8. It is said by the applicant that this is a case which falls squarely within the category of cases justifying summary judgment identified by the High Court in Spencer v Commonwealthof Australia [2010] HCA 28; 241 CLR 118 where French CJ and Gummow J said that:

   Where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.[1]

   [1] Spencer v Commonwealthof Australia [2010] HCA 28; 241 CLR 118 at [25].

9. It is common ground that in DBB16, the Full Court relevantly made the following declaration:

   The purported appointment of a port as a proclaimed port and 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.

10. The applicant, through his representatives, has put before this court material which it says evidences at best, that the applicant was on a boat which was intercepted by the Australian Navy in the vicinity of the Ashmore Reef before he arrived in Darwin.  It is conceded that the evidence before this court does not categorically establish that the applicant set foot on Ashmore Reef, so to speak.  But it is put in the alternative that either he entered Australia when he arrived on the Ashmore Reef, in which case, following the decision in DBB16, he was not, by reason of that arrival, an ‘unauthorised maritime arrival’ for the purposes of Part 7AA, or alternatively he entered Australia when he arrived in Darwin, in which case, he was not an ‘unauthorised maritime arrival’ for the purposes of Part 7AA.

11. In either case, it is submitted on behalf of the applicant that the applicant’s application ought not to have been dealt with as a

    
    

    ‘fast track application’ under Part 7AA and therefore the IAA had no jurisdiction to review the delegate’s decision to refuse the applicant’s application for a protection visa.

12. It is not disputed that this court is bound by the declarations made by the Full Court in DBB16, and I have also had regard to the reasons for decision given by Judge Smith of this court in DBD16 v
    Minister for Immigration & Anor [2018] FCCA 1801, which sets out the relevant statutory scheme relating to fast track reviewable decisions which I do not propose to set out in any detail here.

13. It is clear however, that for the purposes of Part 7AA to have applied to the applicant’s application, he must be an unauthorised maritime arrival as defined in section 5AA. For the reasons put forward by the applicant in this application, I am satisfied on the basis of the material before this court that the applicant either entered Australia when he arrived in the territory of Ashmore and Cartier Islands or he entered Australia when he arrived in Darwin. In either case, the applicant is therefore not an ‘unauthorised maritime arrival’ as defined.

14. In coming to this view, I have also had regard to the fact that the applicant served a notice to admit on the Minister dated

    
    

    7 August 2018 in which the applicant sought the Minister’s admission that the applicant had entered Australia by sea at Ashmore Reef on or around 26 September 2012.  The Minister filed its response to that notice to admit on 21 August 2018 wherein it did not admit those facts.  The Minister did not file any other material which might have suggested that the applicant otherwise fell within the definition of an ‘unauthorised maritime arrival’ and indeed at the hearing before me, the Minister’s representative did not indicate that the Minister wanted to lead any further evidence in relation to that question.

15. Turning then to the question of whether this is a case in which the court ought to exercise its discretion to grant summary judgment in the terms sought, it was argued on behalf of the Minister that if the court were minded to dispose of this matter, it should do so on a final basis and not grant summary judgment.  It was argued that this was not a case in which it is appropriate to grant summary judgment, having regard to the comments made by French CJ and Gummow J in

    
    Spencer v Commonwealth

    of Australia [2010] HCA 28; 241 CLR 118 (“Spencer”) at [25].

16. It was submitted that the Minister had not yet finally determined whether to seek special leave of the High Court in respect of the

    
    

    Full Court of the Federal Court’s decision in DBB16 and that if special leave were sought and granted, that might alter the legal position.  It was submitted that these circumstances are similar to those referred to in Spencer v Commonwealthof Australia [2010] HCA 28; 241 CLR 118 where French CJ and Gummow J said:

    Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority that may not always be the end of the matter.  Existing authority may be overruled, qualified or further explained.  Summary processes must not be used to stultify the development of the law.[2]

    [2] Spencer v Commonwealthof Australia [2010] HCA 28; 241 CLR 118 at [25].

17. Importantly, in that case, French CJ and Gummow J went on to conclude that summary judgment had not been appropriate in that case which “was one which involved important questions of public and constitutional law and potentially complex questions of fact.”[3]

    [3] Spencer v Commonwealthof Australia [2010] HCA 28; 241 CLR 118 at [27].

18. Without going into detailed analysis of the matters before the

    
    

    High Court in Spencer, I am satisfied that the comments referred to above do not apply in the present circumstances.  I am bound by the declarations made by the Full Court in DBB16.  As such, and in the absence of any suggestion on behalf of the Minister that the applicant entered Australia in some other way that would bring him within the definition of an ‘unauthorised maritime arrival’, the applicant’s application for summary judgment ought to be granted, and I do so.

19. I find that the Minister has no reasonable prospects of defending ground 4 of the applicant’s amended application, and I therefore make the following declarations and orders.

20. I am satisfied, given the particular circumstances in this case and the fact that there has been affidavit material filed which would not ordinarily be filed in matters dealt with at an earlier stage in the proceedings that costs ought to be fixed in the sum sought of $5,174.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date:     27 August 2018