FEDERAL COURT OF AUSTRALIA
FPL17 v Minister for Home Affairs [2018] FCA 1766
Appeal from: FPL17 v Minister for Immigration and Anor
[2018] FCCA 1331File number: NSD 911 of 2018 Judge: STEWARD J Date of judgment: 14 November 2018 Date of publication of reasons: 11 February 2019 Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court dismissing an appeal from the Immigration Assessment Authority – where appellant entered Australia by sea at Territory of Ashmore and Cartier Islands – where Full Court of the Federal Court of Australia has declared that the purported appointment of an area of waters within the Territory of Ashmore and Cartier Islands as a proclaimed port was invalid – whether appellant was a fast track applicant – whether appellant was an unauthorised maritime arrival – whether Authority had jurisdiction Legislation: Migration Act 1958 (Cth) ss 5, 5AA, 473BA Cases cited: Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485
DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178
EUQ17 v Minister for Home Affairs [2018] FCA 1645
SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487
SZNPT v Minister for Immigration and Citizenship [2009] FCA 1408
Date of hearing: 14 November 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 15 Counsel for the Appellant: Mr S Prince SC with Mr P Lonergan Solicitor for the Appellant: Abu Legal Solicitor for the First Respondent: Ms B Rayment of Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
NSD 911 of 2018 BETWEEN: FPL17
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
STEWARD J
DATE OF ORDER:
14 NOVEMBER 2018
THE COURT ORDERS THAT:
1.Leave be granted to file an amended notice of appeal dated 14 November 2018.
2.The appeal be allowed.
3.Orders 3 and 4 of the orders made by his Honour Judge Street on 23 May 2018 be set aside and in lieu thereof the following declarations be made:
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 of 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 21 April 2017.
THE COURT ORDERS THAT:
4.There issue a writ of certiorari quashing the decision of the Second Respondent made on 11 December 2017.
5.The First Respondent pay the Appellant’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
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- Case
- [2018] FCA 1766
- Decision Date
CaseChat Overview and Summary
The legal issues revolved around the interpretation of the terms "port" and "excised offshore place" within the Migration Act, and the validity of a purported appointment of a port in the Territory of Ashmore and Cartier Islands. The Full Court of the Federal Court of Australia had previously ruled in DBB16 v Minister for Home Affairs that the purported appointment of the Western Lagoon as a proclaimed port was invalid, as it did not meet the ordinary English definition of a port. The Court concluded that a port must be a location where immigration clearance can occur, which was not the case for the Western Lagoon.
The Court found that since the appellant entered Australia by sea at the Western Lagoon, which was not a proclaimed port, he did not qualify as an unauthorised maritime arrival under the Act. Consequently, the Immigration Assessment Authority lacked jurisdiction to review the decision to refuse him a protection visa, as he did not meet the criteria to be a "fast track applicant." The Court quashed the decision of the Authority and ordered the Minister to pay the appellant's costs of the appeal.
Orders
Orders of the court
4. There issue a writ of certiorari quashing the decision of the Second Respondent made on 11 December 2017.
5. The First Respondent pay the Appellant’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In practical terms, under Part 7AA, all fast track reviewable decisions are referred to the Authority for review: ss 473DB(1) and 473CA. In order for the appellant to be a “fast track applicant”, he had to be, amongst other things, an “unauthorised maritime arrival” as that term is defined by s 5AA(1) of the Act. This, in turn, required the appellant to have “entered Australia by sea” at an “excised offshore place”. Section 5AA(2) provides that a person enters Australia “by sea” if the person entered the “migration zone” except by an aircraft that landed in that zone. The term “migration zone” is defined in s 5 of the Act as follows:migration zone means the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes: (a) land that is part of a State or Territory at mean low water; and (b) sea within the limits of both a State or a Territory and a port; and (c)piers, or similar structures, any part of which is connected to such land or to ground under such sea;but does not include sea within the limits of a State or Territory but not in a port. Pursuant to the definition of “migration zone” in s 5, an area of sea within the Territory of Ashmore and Cartier Islands would not be part of the migration zone unless the area were also a “port”. “Port” is relevantly defined by s 5 as a “proclaimed port”. The term is then used in a non-prescribed sense in s 5(5), which confers on the Minister the power to proclaim ports. Section 5(5) provides:(5) The Minister may, by notice published in the Gazette:(a)appoint ports in an external Territory to which this Act extends as proclaimed ports for the purposes of this Act and fix the limits of those ports; … It follows that in order for the appellant to be an unauthorised maritime arrival, the Purported Appointment needed to have been legally effective.The Purported Appointment of a Port In DBB16, the appellant (DBB16) submitted that the instrument of the Purported Appointment was invalid on three grounds. DBB16 was successful on the ground that the Minister’s power to appoint a port in s 5(5) was limited to physical locations or facilities which could, as a matter of ordinary English, actually be said to be ports. DBB16 arrived in Australian waters on 7 November 2012 and was taken to the Western Lagoon of Ashmore Reef before being taken to Darwin. The Authority reviewed a decision of the Minister’s delegate based on an assumption that the Western Lagoon was a proclaimed port by virtue of the Purported Appointment and that, accordingly, DBB16 was a “fast track applicant” to whom Part 7AA of the Act applied. The Western Lagoon was a shallow lagoon on an uninhabited coral and sand reef in the Indian Ocean and, in DBB16’s submission, was not, as a matter of ordinary English, a port capable of being appointed as a proclaimed port under s 5(5). The non-prescribed meaning of “port” is only used in s 5(5) of the Act; all other references in the Act to “port” are to the term defined by s 5 as a proclaimed port. The task of the Full Court was to determine the meaning of that term in the non-prescribed sense. Following an examination of the statutory context, judicial consideration of the term and its ordinary meaning, the Full Court concluded that, whilst the word “port” may have a variety of meanings, in the statutory context here a fundamental feature of a port is that it is a place where a non-citizen holding a visa can be immigration cleared. There is no infrastructure at the Western Lagoon which would permit immigration clearance to occur and, due to environmental regulation of the Ashmore Reef, a person could not lawfully leave the purported port. It followed that the Western Lagoon area of Ashmore Reef could not be a “port” for the purposes of s 5(5) of the Act. The Court held that the Minister had no power to appoint the Western Lagoon to be a proclaimed port and the instrument that purported to do so was invalid. Disposition