CLM18 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 08 October 2019
• Neutral Citation: [2019] FCAFC 170
• Date: 08 October 2019
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

CLM18 v Minister for Home Affairs [2019] FCAFC 170

Appeal from:	CLM18 v Minister for Home Affairs [2019] FCCA 1106
File number:	NSD 728 of 2019
Judges:	PERRAM, ROBERTSON AND ABRAHAM JJ
Date of judgment:	8 October 2019
Catchwords:	MIGRATION – whether the Minister’s exercise of his power under s 46A(2C) of the Migration Act 1958 (Cth) to revoke his determination to allow certain persons (including the appellant) to lodge an application for a Temporary Protection visa or Safe Haven Enterprise visa under s 46A(1) was subject to a requirement of procedural fairness, and if so, whether the appellant was afforded procedural fairness ; MIGRATION – whether the Minister ‘noting’ and commenting on a Departmental submission about the manner in which an Informed Referral to Status Resolution (IRSR) process would be undertaken by officers of the Department in relation to the appellant constituted a ‘personal procedural decision’ of the Minister – whether the possibility of detention being prolonged is a sufficient interest to engage a duty to afford procedural fairness in conducting the IRSR process – where Minister accepted that, if a duty were owed, the appellant was not afforded procedural fairness
Legislation:	Constitution ss 61, 64 Acts Interpretation Act 1901 (Cth) s 33 Migration Act 1958 (Cth) ss 5, 5AA, 14, 46A, 48B, 189, 193, 195, 196, 198, 476 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) ; Migration Regulations 1994 (Cth) reg 2.25 ; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) Art 3 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) Art 33 International Covenant on Civil and Political Rights, opened for signature 16 December 1996, 999 UNTS 171 (entered into force 23 March 1976) Arts 2, 6, 7
Cases cited:	CRI026 v The Republic of Nauru [2018] HCA 19; 92 ALJR 529 FAI Insurances Ltd v Winneke [1982] HCA 26; 151 CLR 342 Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319 Plaintiff S10/2011 v Commonwealth [2012] HCA 31; 246 CLR 636 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 South Australia v O’Shea [1987] HCA 39; 163 CLR 378 SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125; 234 FCR 1 Warren v Coombes [1979] HCA 9; 142 CLR 531
Date of hearing:	29 August 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	153
Counsel for the Appellant:	Mr J F Gormly
Solicitor for the Appellant:	Hall & Wilcox
Counsel for the First Respondent:	Mr S B Lloyd SC with Ms J E Davidson
Solicitor for the Respondents:	Australian Government Solicitor
Counsel for the Amicus Curiae:	Mr C Lenehan with Mr A Oakes
Solicitor for the Amicus Curiae:	Australian Human Rights Commission

ORDERS

		NSD 728 of 2019
BETWEEN:	CLM18 Appellant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; INFORMED REFERRAL TO STATUS RESOLUTION OFFICER Second Respondent

JUDGES:	PERRAM, ROBERTSON AND ABRAHAM JJ
DATE OF ORDER:	8 OCTOBER 2019

THE COURT ORDERS THAT:

1. The appeal be allowed with costs.

2. Orders 2 and 3 made by the Federal Circuit Court of Australia on 7 May 2019 be set aside.

3. The parties bring in short minutes of order to give effect to these reasons within 21 days.

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

REASONS FOR JUDGMENT

PERRAM J:

1. The Appellant is a Sri Lankan national of Tamil ethnicity. He arrived in Australia in October 2012 by boat without a valid visa and was taken to Christmas Island, an external territory of the Commonwealth situated in the Indian Ocean around 1,550km north-west of Australia and around 350km south of the Indonesian island of Java. It is unclear from the appeal papers but it appears likely that the boat he was travelling on was intercepted at sea by Commonwealth officials who then took him to Christmas Island. By s 5 of the Migration Act 1958 (Cth) (‘the Act’) a person ‘enters Australia’ if they enter the ‘migration zone’. The migration zone is defined in s 5, relevantly, to include the area consisting of the States and Territories above the mean low water mark. The Territories are defined by s 5 to include the internal and external territories to which the Act extends. Section 7(2) extends the operation of the Act to the ‘prescribed territories’, an expression further defined in s 7(1) to include the Territory of Christmas Island. Consequently, Christmas Island is part of the migration zone.

2. Because the Appellant was not an Australian citizen, he was a non-citizen within the meaning of s 5. Once he was in the migration zone he was an unlawful non-citizen because he did not hold a valid visa: s 14. The Appellant was therefore a person who entered Australia by sea and became in consequence an unlawful non-citizen. A person who enters Australia by sea at an ‘excised offshore place’ and who becomes thereby an unlawful non-citizen is taken by s 5AA to be an ‘unauthorised maritime arrival’ (‘UMA’). This matters because the Territory of Christmas Island is defined by s 5 to be an ‘excised offshore place’. Consequently, the Appellant is an unauthorised maritime arrival.

3. On his arrival at Christmas Island the Appellant therefore acquired two legal statuses for he was both an unlawful non-citizen and an unauthorised maritime arrival. The consequence of the former was that s 189(1) required him to be held in immigration detention. The consequence of the latter was that he was ‘unable’ to apply for any kind of visa because s 46A(1) deems any visa application made by an unauthorised maritime arrival not to be valid. The necessity for a visa application to be valid is significant as the Minister’s power to issue a visa under s 65 is delimited by the requirement that the application be a valid one.

4. That the Appellant was ‘unable’ to apply for a visa is relevant because there exists a class of visa known as a Bridging E visa which may be issued to persons who are ‘unwilling or unable’...