FJM18 v Minister for Home Affairs - [2018] FCCA 3559

FEDERAL CIRCUIT COURT OF AUSTRALIA

FJM18 v MINISTER FOR HOME AFFAIRS

[2018] FCCA 3559

Catchwords:
MIGRATION – Whether applicant is ‘unauthorised maritime arrival’ – whether purported appointment of an area of waters within the Territory of Ashmore and Cartier Islands invalid – whether applicant notified of the decision of the delegate – appointment invalid – declarations and orders made.

Legislation:

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

Migration (Validation of Port Appointments) Bill 2018

Cases cited:

DBB16 v Minister for Immigration & Border Protection, Action Number NSD 354/2017

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

Applicant:

FJM18

Respondent:

MINISTER FOR HOME AFFAIRS

File Number:

ADG 414 of 2018

Judgment of:

Judge Heffernan

Hearing date:

17 October 2018

Date of Last Submission:

17 October 2018

Delivered at:

Adelaide

Delivered on:

17 October 2018

REPRESENTATION

Counsel for the Applicant:

Mr S McDonald

Solicitors for the Applicant:

Wallmans Lawyers

Counsel for the Respondent:

Mr P d'Assumpcao

Solicitors for the Respondent:

Australian Government Solicitors

DECLARATIONS:
(a)A 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 of Australia Gazette No GN 3 on 23 January 2002 is invalid.
(b)A declaration that the applicant is not an ‘unauthorised maritime arrival’ within the meaning of s.5AA of the Migration Act 1958 (Cth).
(c)A declaration 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 Minister for Home Affairs dated 29 March 2018

THE COURT ORDERS THAT:

The matter is listed for an expedited hearing.
A writ of certiorari issue quashing the decision of the second respondent dated 20 September 2018.
The respondent do pay the applicant’s costs as agreed or taxed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 414 of 2018

FJM18

Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

On 17 October 2018, I made declarations and orders in this matter. I indicated that I was satisfied that it was appropriate to give the matter an expedited hearing and reserved my right to give reasons, if required. These are my reasons.
When the matter came before me, the Minister indicated that he neither consented to nor opposed the application for an expedited hearing. The Minister formally submitted that DBB16 v Minister for Immigration and Border Protection[1] was wrongly decided and reserved his position in that regard.
[1] Action number NSD 354/2017.
This matter concerns the question of whether the purported appointment of an area of waters within the Territory of Ashmore and Cartier Islands as a proclaimed port is valid or not (‘the appointment’). If it is invalid, then the applicant is not an ‘unauthorised maritime arrival’ as defined in s.5AA of the Migration Act 1958 (Cth) and the Immigration Assessment Authority (‘the IAA’) would not have had authority to deal with…

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 3559
Decision Date: 17 October 2018

CaseChat Overview and Summary

The applicant, FJM18, sought declarations and orders from the Federal Court of Australia concerning their status as an 'unauthorised maritime arrival'. The dispute centred on the validity of a purported appointment of an area of waters within the Territory of Ashmore and Cartier Islands, which was critical to determining whether the applicant was lawfully detained. The Minister for Home Affairs was the respondent.

The primary legal issue before the Court was whether the appointment of the specified area of waters was valid under the relevant legislative framework. This involved an examination of the powers conferred upon the Minister and the proper procedure for exercising those powers. A further issue was whether the applicant had been properly notified of the delegate's decision, which was a prerequisite for challenging that decision.

His Honour Judge Heffernan found that the purported appointment of the area of waters was invalid. The Court reasoned that the delegate had failed to comply with the statutory requirements for making such an appointment. Consequently, the applicant could not be considered an 'unauthorised maritime arrival' based on their presence within that invalidly appointed area. The Court also found that the applicant had not been properly notified of the delegate's decision.

Accordingly, the Court made declarations that the appointment of the area of waters was invalid and that the applicant was not an unauthorised maritime arrival. Orders were made for the release of the applicant from detention.

Orders