Enz17 v Minister for Immigration

[2018] FCCA 2561

FEDERAL CIRCUIT COURT OF AUSTRALIA

ENZ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2561

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Applicant arrived on Ashmore Island with his rights being affected by the decision in DBD16 v Minister for Immigration& Anor [2018] FCCA 1801 – Application in a Case for summary judgment by Applicant – matter treated on a final hearing basis – declaration made that the Applicant was not an “unauthorised maritime arrival” and decision of Immigration Assessment Authority quashed.

Legislation:

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

Cases cited:

DBD16v Minister for Immigration & Anor [2018] FCCA 1801

Applicant: ENZ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 547 of 2017

Judgment of: Judge Dowdy

Hearing date: 7 September 2018

Delivered at: Sydney

Delivered on: 7 September 2018

REPRESENTATION

Counsel for the Applicant: Mr P. Reynolds of Counsel

Solicitors for the Applicant: Fragomen

Counsel for the Respondents: Mr A. Markus

Solicitors for the Respondents: Australian Government Solicitor

THE FINAL ORDERS OF THE COURT ARE AS FOLLOWS:

1. 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 Gazette number GN 3 on 23 January 2002 is invalid.

2. Declaration that the Applicant is not an “unauthorised maritime arrival” within the meaning of s.5AA of the Migration Act 1958 (Cth).

3. Declaration that the Applicant has not been notified pursuant to s.66 of the Migration Act 1958 (Cth) of the decision of the Delegate of the First Respondent dated 14 February 2017.

4. That a writ of certiorari issue quashing the decision of the Second Respondent made on 21 September 2017. 

5. That the First Respondent pay the Applicant’s costs of the proceeding in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 547 of 2017

ENZ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

1. This proceeding has been in the docket of his Honour Judge Smith.  It was commenced by Application filed by the Applicant on 10 October 2017 but did not yet have a final hearing date.  An approach was made by the Applicant this morning for the matter to be listed before me as Duty Judge. 

2. There is before me an Application in a Case dated 6 September 2018 which I have just given the Applicant leave to file.  It seeks summary judgment arising out of the fact that the Applicant arrived on Ashmore Island and that his arrival there and his rights are affected by the decision of his Honour Judge Smith in DBD16v Minister for Immigration & Anor [2018] FCCA 1801 (DBD16) which has recently been affirmed by the Full Court of the Federal Court of Australia, but which Court has not yet delivered reasons.

3. In those circumstances, I am bound by the reasons and the effect of the decision of Judge Smith in DBD16.  The parties, Mr Markus appearing for the First Respondent and Mr Reynolds of Counsel appearing for the Applicant, also take that view. 

4. Mr Markus does not oppose me making the orders which are sought by Mr Reynolds of Counsel in the Application in a Case; however, he quite reasonably, because of the uncertainty and the fact that there are not yet written reasons from the Full Court on the appeal from Judge Smith’s decision wishes to preserve the First Respondent’s position overall and Mr Reynolds of Counsel has no objection to that course.

5. The way to deal with that, I think is, and again with the agreement of Mr Reynolds of Counsel and Mr Markus, that first I will direct that the Application in a Case before me be treated as seeking a final hearing of the Application filed in this Court on 10 October 2017, and I therefore record that I am hearing that Application as a final hearing.  It seems to me that on the basis of DBD16 the Applicant, now propounding his Application as a final hearing before me, is on the law as it stands at the present moment entitled to succeed.  Accordingly, I will make the following orders on a final basis and not on a summary judgment basis.

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

Date: 21 September 2018