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:

1. The matter is listed for an expedited hearing.

2. A writ of certiorari issue quashing the decision of the second respondent dated 20 September 2018.

3. 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

1. 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.

2. 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.

3. 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 the review of the delegate’s decision.

4. The applicant relied on the affidavits of Ms Hagias, dated 12 October 2018 and 17 October 2018 respectively, as well as his own affidavit of 12 October 2018.

5. On 16 August 2016, the applicant made an application for a Safe Haven Enterprise Visa (‘SHEV’).  That application was refused by a delegate of the Minister for Home Affairs on 29 March 2018.  The matter was referred automatically to the Immigration Assessment Authority (‘IAA’).  The IAA affirmed the delegate’s decision on 20 September 2018.

6. Prior to the IAA’s decision in this matter, this Court had some months earlier delivered at least two decisions with respect to persons in circumstances identical to those of the applicant in this matter.[2]  In those decisions, the Court declared:

   a)That the purported appointment of a port, as a proclaimed port, of an area of waters within the Territory of Ashmore and Cartier Islands by notice published in the Commonwealth of Australia Gazette Number GN 3 of 23 January 2002 is invalid;

   b)That the applicant was not an ‘unauthorised maritime arrival’ within the meaning of s.5AA of the Migration Act 1958 (Cth); and

   c)The applicant had 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 11 July 2016.

   And the Court made orders that a writ of certiorari issue quashing the decision of the IAA.

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

7. The Full Court of the Federal Court dealt with the matter of DBB16 involving the same issues in this matter on 16 August 2018.  It made declarations and orders that were, in effect, the same as those I have identified above from this Court.  At the time this matter was heard, the reasons in DBB16 had not been published.  I take the view that the IAA was bound to follow the decisions I have referred to.  There is urgency in this matter from the applicant’s point of view because of the imminent passage through the Senate of the Migration (Validation of Port Appointments) Bill 2018 (‘the Bill’).  If the Bill is enacted and becomes operative, it would have the effect of retrospectively validating the appointment.  I took the view that the decision of the Full Court having determined the invalidity of the appointment, the applicant was entitled to have had his matter dealt with appropriately by the IAA.  I was satisfied that for that reason the matter warranted an urgent hearing.

8. The declarations and orders of the Full Court in DBB16 are unambiguous in their terms and are binding on me.  The Minister indicated that he did not dispute that the only reason the applicant was regarded as an unauthorised maritime arrival is because he was taken through waters within the Territory of Ashmore and Cartier Islands.  That being the case, I accept that the circumstances of this matter are indistinguishable from DBB16 by which I am bound, and I make the orders and declarations to be found at the beginning of these reasons.

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

Date: 4 December 2018