FEDERAL CIRCUIT COURT OF AUSTRALIA
| FMM17 v MINISTER FOR IMMIGRATION | [2019] FCCA 1500 |
| Catchwords: WORDS AND PHRASES – “claim” – “a claim for protection in a country other than Australia”. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.15AA Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 |
| Applicant: | FMM17 |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | PEG 699 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 3 May 2018 |
| Date of Last Submission: | 3 May 2018 |
| Delivered at: | Perth |
| Delivered on: | 12 June 2019 |
REPRESENTATION
| Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the Respondent: | Mr P.M Knowles |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
(1)That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 699 of 2017
| FMM17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, by application filed on 14 December 2017, seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act1958 (Cth) (“
Keep reading for free
Create a free CaseChat account to read FMM17 v Minister for Immigration and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
Details
- Case
- [2019] FCCA 1500
- Decision Date
CaseChat Overview and Summary
The applicant, FMM17, sought judicial review of a decision made by a delegate of the Minister for Immigration. The dispute concerned whether the delegate's decision to refuse to grant a protection visa was reviewable by the court, given the applicant's status as a "fast track applicant" and the nature of the decision. The matter was heard in the Federal Circuit Court of Australia.
The central legal issue before the court was whether the delegate's decision constituted a "migration decision" within the meaning of section 476 of the *Migration Act 1958* (Cth), or if it was a "primary decision" excluded from judicial review under that section. This required the court to determine if the applicant qualified as a "fast track applicant" and if the delegate's decision was a "fast track decision" as defined by the Act.
The court reasoned that section 476 of the *Migration Act* grants jurisdiction only in respect of "migration decisions," explicitly excluding "primary decisions." It noted that "primary decisions" are defined to include decisions reviewable under Parts 5 or 7, or section 500, or those that could have been referred for review under Part 7AA. The court then examined the definitions of "fast track decision" and "fast track applicant." It found that a "fast track decision" is a refusal to grant a protection visa to a "fast track applicant," and that such decisions are not reviewable under Parts 5 or 7 or section 500. The court confirmed that the applicant was an unauthorised maritime arrival and had received the necessary notice under section 46A(2) of the Act, subsequently making a valid protection visa application. Consequently, the applicant met the definition of a "fast track applicant," and the delegate's decision was a "fast track decision."
As the delegate's decision was a "fast track decision" and therefore not a "migration decision" reviewable under section 476 of the *Migration Act*, the court lacked jurisdiction to hear the application.
The central legal issue before the court was whether the delegate's decision constituted a "migration decision" within the meaning of section 476 of the *Migration Act 1958* (Cth), or if it was a "primary decision" excluded from judicial review under that section. This required the court to determine if the applicant qualified as a "fast track applicant" and if the delegate's decision was a "fast track decision" as defined by the Act.
The court reasoned that section 476 of the *Migration Act* grants jurisdiction only in respect of "migration decisions," explicitly excluding "primary decisions." It noted that "primary decisions" are defined to include decisions reviewable under Parts 5 or 7, or section 500, or those that could have been referred for review under Part 7AA. The court then examined the definitions of "fast track decision" and "fast track applicant." It found that a "fast track decision" is a refusal to grant a protection visa to a "fast track applicant," and that such decisions are not reviewable under Parts 5 or 7 or section 500. The court confirmed that the applicant was an unauthorised maritime arrival and had received the necessary notice under section 46A(2) of the Act, subsequently making a valid protection visa application. Consequently, the applicant met the definition of a "fast track applicant," and the delegate's decision was a "fast track decision."
As the delegate's decision was a "fast track decision" and therefore not a "migration decision" reviewable under section 476 of the *Migration Act*, the court lacked jurisdiction to hear the application.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
The Court’s jurisdiction under s.476 of the Migration Act is only in respect of “migration decisions” and not in respect of decisions known as “primary decisions”. Section 476(4) of the Migration Act sets out the meaning of a “primary decision” as follows: primary decision means a privative clause decision or purported privative clause decision:(a)that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or(b)that would have been so reviewable if any application for such review had been made within a specified period; or(c)that has been, or may be, referred for review under Part 7AA (whether or not it has been reviewed). A “fast track decision” is not reviewable either under Pts.5 or 7 or s.500 of the Migration Act: Migration Act, ss.338(1)(d), 411(2)(c) and 500(3). A “fast track decision” is defined under s.5(1) of the Migration Act to mean a decision to refuse to grant a protection visa to a “fast track applicant”, other than a decision to refuse to grant a protection visa for a number of specified reasons not relevant here. A “fast track applicant” is defined by s.5(1) of the Migration Act to mean:fast track applicant means:(a)a person:(i)who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and(ii)to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and(iii)who has made a valid application for a protection visa in accordance with the determination; or(b)a person who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(b). An “unauthorised maritime arrival” is defined by s.5AA(1) of the Migration Act as follows:(1)For the purposes of this Act, a person is an unauthorised maritime arrival if:(a)the person entered Australia by sea:(i) at an excised offshore place at any time after the excision time for that place; or(ii) at any other place at any time on or after the commencement of this section;(b)the person became an unlawful non-citizen because of that entry; and(c)the person is not an excluded maritime arrival. There is no dispute that the applicant is an unauthorised maritime arrival. On 2 September 2015, the applicant was given written notice under s.46A(2) of the Migration Act determining that s.46A(1) did not apply to an application by him for a protection visa. The applicant subsequently made a valid application for a protection visa in accordance with the determination. For that reason, the applicant was a fast track applicant within the meaning of s.5(1) of the Migration Act. Further, the Delegate’s Decision was to refuse to grant the applicant a Temporary Protection Visa, and was not made relying on ss.5AH(2) or 36(1B), (1C) or (2C)(a) or (b) of the Migration Act, and was therefore a fast track decision.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.