FJG17 v Minister for Home Affairs

[2018] FCCA 3314

FEDERAL CIRCUIT COURT OF AUSTRALIA

FJG17 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3314

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

Legislation:

Migration Act 1958 (Cth), s.476

Cases cited:

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

Applicant: FJG17

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3798 of 2017

Judgment of: Judge Street

Hearing date: 31 October 2018

Date of Last Submission: 31 October 2018

Delivered at: Sydney

Delivered on: 31 October 2018

REPRESENTATION

Counsel for the Applicant: Mr P Bodisco

Solicitors for the Applicant: Abu Legal

Counsel for the Respondents: Mr H Bevan

Solicitors for the Respondents: DLA Piper

ORDERS

THE COURT DECLARES THAT:

1. 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 No GN 3 on 23 January 2002 is invalid.

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

3. The applicant has 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 30 May 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 22 November 2017.

2. The first respondent pay the applicant’s cost fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3798 of 2017

FJG17

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT 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”) under Part 7AA made on 22 November 2017. 

2. On 13 September 2018, this Court made orders granting leave to the applicant to file a further amended application raising a ground of review based on the invalidity of the purported appointment of a port as a proclaimed port of an area of waters within the Territory of Ashmore and Cartier Islands and fixed the matter for hearing in the ordinary course today. 

3. On the last occasion the counsel for the first respondent, Mr Bevan, consistent with the duties of a model litigant, conceded on behalf of the first respondent that the applicant in the present case could not be distinguished from the position identified in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178. It was accepted by the first respondent that the applicant was not a fast track applicant within the meaning of the legislation given the invalidity of the declaration of the port consistent with the decision in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178.   

4. Counsel for the applicant, Mr Bodisco, has accordingly asked the Court for orders consistent with the declaration and orders that were made in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178. I am satisfied given the concession by the first respondent that the applicant is a person in respect of whom the invalidity of the notice published in the Commonwealth Gazette No. GN3 on 23 January 2002 means the applicant was not a fast track applicant and that, accordingly, the applicant is entitled to the declarations and orders sought in respect of the decision of the Immigration Assessment Authority in the present case made on 22 November 2017.

5. Accordingly, the Court makes declarations and orders.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 23 November 2018