FEDERAL COURT OF AUSTRALIA

CEN16 v Minister for Immigration and Border Protection [2018] FCA 1629

ORDERS

THE COURT ORDERS THAT:

1.    Summary judgment be given in favour of the Appellant pursuant to r 36.11(2)(e) of the Federal Court Rules 2011 (Cth).

2.    The orders made by Judge Hartnett on 18 April 2018 be set aside.

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 16 June 2016.

THE COURT ORDERS THAT:

3.    A writ of certiorari issue, quashing the decision of the Second Respondent made on 15 July 2016.

4.    The First Respondent pay the Appellant’s costs of, and incidental to, the Interlocutory Application heard on 19 September 2018. The parties otherwise bear their own costs both in relation to the proceedings in the Federal Circuit Court of Australia and on appeal to this Court.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STEWARD J:

Background

1    On 19 September 2018, I ordered that there be summary judgment in favour of the appellant pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth). The appellant had unsuccessfully sought judicial review of a decision of the Immigration Assessment Authority (the “Authority”) before the Federal Circuit Court of Australia. Following the publication of the orders and reasons for judgement in that matter on 18 April 2018, the Full Court of the Federal Court heard and decided DBB16 v Minister for Home Affairs [2018] FCAFC 178 and, amongst other things, made orders on 6 August 2018 declaring 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 Gazette No GN 3 on 23 January 2002, was invalid.

2    On 8 May 2018, the appellant appealed the decision of the Federal Circuit Court to this Court. On 14 September 2018, the appellant made his application for summary judgment. He did so in reliance upon the orders made by the Full Federal Court in DBB16, and in particular relied upon the decision that the proclamation of a port within the Territory of Ashmore and Cartier Islands was invalid. This was a new ground which had not been considered by the Federal Circuit Court.

3    The appellant relied upon an affidavit of Ms Carina Ford, affirmed on 14 September 2018, save for the annexure marked as “CF-1”. The affidavit deposed to the appellant’s interception by the Australian Customs and Border Protection Service on 17 October 2012 within the vicinity of the waters of the Ashmore Islands. So much was conceded by the solicitor for the Minister.

4    In order for the Authority to have power to review the decision of the Minister to refuse here the grant of a protection visa, the appellant needed to have been an “unauthorised maritime arrival” for the purposes of s 5AA of the Migration Act 1958 (Cth) (the “Act”). Amongst other things, this requires 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.

5    It follows, and this was agreed between the parties, that for the appellant to be an unauthorised maritime arrival, the proclamation of a proclaimed port within the Territory of Ashmore and Cartier Islands needed to have been legally effective. The effect, however, of the decision of the Full Federal Court in DBB16 was that the proclamation was invalid. As such, the appellant had not “entered Australia by sea” for the purposes of s 5AA(2) of the Act. The appellant sought summary judgment on that basis.

6    Following the publication of orders in DBB16, I was told that the Migration (Validation of Port Appointment) Bill 2018 (Cth) was the subject of current debate in the Federal Parliament. The evidence before me at the time of the hearing was that it was not clear whether this bill would or would not be passed, and if passed, when it would become law. By its then terms, the bill sought retrospectively to validate the proclamation purportedly made in 2002.

7    Very properly, the solicitor representing the Minister conceded that I was bound by DBB16 and that it could not be distinguished, either in respect of the facts or in respect of the law.

8    The appellant sought to have his application for summary judgment heard expeditiously. I declined that application on the basis that it was not appropriate for a court to take into account as a controlling factor the prospect of a substantive legislative amendment which would accrue for the benefit of one party: Esso Australia Resources Pty Ltd v Federal Commissioner of Taxation (No.1) (2011) 196 FCR 560. In DBA16 v Minister for Home Affairs [2018] FCA 1539, Wheelahan J refused an application for expedition, which was made by the applicant in that case on the same grounds as the appellant seeks expedition in the present case. His Honour considered the relevant authorities, including Esso, and held at [16] that:

In my view no special order should be made by me in the circumstances of this case to have the proceeding expedited and listed for hearing at the Court’s earliest convenience. To do so would be to act at least to some degree on speculation as to the likely progress of a Bill through the Commonwealth Parliament and whether the Bill, in terms enacted, would affect the applicant’s rights.

I respectfully agree with the foregoing.

9    I, however, indicated to the parties that given the very narrowly confined way in which the matter now presented itself to the Court, I should hear the application for summary judgment in any event. Following that hearing, I gave judgment and said that I would publish my reasons after the Full Court’s reasons in DBB16 had been published. Those reasons were delivered on 19 October 2018.

The Decision in DBB16

10    In DBB16, as in the present case, the Authority reviewed a decision of the Minister’s delegate based on an assumption that the appellant was a “fast track applicant” to whom Part 7AA of the Act applied. Under Part 7AA, in practical terms, all fast track reviewable decisions are referred to the Authority for review: ss 473DB(1) and s 473CA. In order to be a “fast track applicant”, a person must be, amongst other things, an “unauthorised maritime arrival” as that term is defined by s 5AA(1) of the Act.

11    The appellant DBB16 arrived in Australian waters on 7 November 2012 and was taken to the Western Lagoon of Ashmore Reef before being taken to Darwin. DBB16 did not step foot on land at Ashmore Reef and thus, for the same reasons as in the present case, the Western Lagoon had to have been a proclaimed port for him to have entered the migration zone at Ashmore Reef. The Minister purported to proclaim the Western Lagoon to be a port by declaration dated 23 January 2002. DBB16 alleged that the instrument of appointment was invalid for three reasons, including, relevantly, because the Minister’s power to appoint a port was limited to physical locations or facilities which could as a matter of ordinary English actually be said to be ports. The Western Lagoon was a shallow lagoon on an uninhabited coral and sand reef in the Indian Ocean and, in the appellant’s submission, was not a port.

12    The Act uses the term “port” in two senses of the word: “port” is relevantly defined by s 5 as a “proclaimed port”, but the term is then used in a non-prescribed sense in the provision conferring on the Minister the power to proclaim ports. That provision is s 5(5), which 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; ….

13    The issue for determination was whether the Western Lagoon could fall within the scope of the term “port” for the purposes of s 5(5) such that the Minister had the power to appoint it as a proclaimed port. The Court examined the statutory context, judicial consideration of the term and its ordinary meaning. The Court found at [44] that the statutory context suggests “that a fundamental feature of a [p]ort 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. The Court concluded that the Western Lagoon area of Ashmore Reef could not be a “port” for the purposes of 5(5) of the Act. An examination of judicial consideration of the term, dictionary definitions and the legislative history of the relevant provision did not alter this conclusion. Accordingly, 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.

14    It follows that DBB16 did not meet the criteria of a “fast track applicant” and there had been no fast track reviewable decision to be referred to the Authority. A review of the decision of the Minister’s delegate to reject his visa application should have instead proceeded under Part 7 of the Act as a full merits review. The Authority had no jurisdiction to review the delegate’s decision.

Summary Judgment Application

15    The Minister did not submit that the grant of relief in this matter would be futile because the underlying application for a visa was meritless: cf Re Minister for Communications; Ex parte NBN Ltd (1986) 14 FCR 344. Nor, as already mentioned, did the Minister submit that I could validly distinguish DBB16. This left for me to determine whether the Minister had no reasonable prospect of defending the appeal given that there was extant a decision of the Full Federal Court binding upon me that the 2002 port proclamation was invalid.

16    The Minister submitted that summary judgment should be refused for the following two reasons:

(1)    the Minister submitted that DBB16 was wrongly decided and might be the subject of appeal to the High Court. The law was thus unsettled;

(2)    I should refuse to exercise my discretion to grant relief because of the bill before Parliament.

17    In relation to the first submission, the Minister relied upon a decision of the Federal Circuit Court in BDB17 v Minister for Immigration and Border Protection [2018] FCCA 2538. In that case a judge of the Federal Circuit Court refused summary judgment in very similar circumstances. The court did so for the following reason (at [37]):

Bearing in mind what the Court has said with respect to the arguably unsettled state of the law, and bearing in mind that the matter is presently listed for final hearing in March 2020, by which time the law may have been further clarified either legislatively or by the High Court in relation to DBB16 if an application for special leave to appeal is made, it is the case in the Court’s view that this is not presently a proper case for a grant of summary judgment on an application to bring forward a matter which is listed for hearing in some 18 months. The Court therefore also takes the view that the Application in a Case and the hearing of the Substantive Application ought not to be brought forward.

18    In that respect, the Federal Circuit Court relied upon the following passage from the decision of the High Court in Spencer v The Commonwealth of Australia (2010) 241 CLR 118 at [25]:

Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.

With respect to the representative for the Minister and to the Federal Circuit Court, the foregoing passage does not support the proposition that the existence of a challenge to a reported decision which binds the court is a sufficient basis, in and of itself, for declining summary judgment. In my view, the reference to “propositions of law apparently precluded by existing authority” is intended to be a reference to reliance upon new or novel points of law which should not be shut out from development by the court. This is not such a case. Here the Minister, as well as this Court, is presently bound by the decision of the Full Federal Court in DBB16. So much so is conceded. Unless and until that decision is overturned, the current law, which the appellant is entitled to rely upon, is that the proclamation purportedly made in 2002 is invalid. The Minister accepted that if that was so, the appellant had never been an unauthorised maritime arrival. The first ground for declining summary relief is rejected.

19    I also reject the second ground. This Court’s discretion to award relief should not be denied because of the possibility of a future law change. In those circumstances, I was not prepared to decline the relief sought. The appellant is entitled to the protection of the law as currently enacted or declared.

20    In those circumstances, I ordered that there be summary judgment on the following terms:

THE COURT ORDERS THAT:

(1)    Summary judgment be given in favour of the appellant pursuant to r 36.11(2)(e) of the Federal Court Rules 2011 (Cth);

(2)    The orders made by Judge Hartnett on 18 April 2018 be set aside.

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 Act.

(3)    The applicant has not been notified pursuant to s 66 of the Act of the decision of a delegate of the Minister dated 16 June 2016.

THE COURT ORDERS THAT:

(3)    A writ of certiorari issue, quashing the decision of the second respondent made on 15 July 2016.

(4)    The Minister pay the appellant’s costs of, and incidental to, the Interlocutory Application heard on 19 September 2018. The parties otherwise bear their own costs both in relation to the proceedings in the Federal Circuit Court of Australia and on appeal to this Court.

Associate:

Dated:    15 November 2018