Australian Immigration Daily News

Sometimes an issue in migration law may seem head-spinningly technical, complex, and difficult to get your head around.

And yet, these seemingly obscure issues may have hugely important consequences!

This was illustrated by two recent companion decisions of Judge Smith of the Federal Circuit Court: DBD16 v Minister for Immigration and Border Protection (2018) FCCA 1801 and DBC16 v Minister for Immigration and Border Protection (2018) FCCA 1802.

The issue in both of these cases was whether the applicants, who were seeking protection visas, were “unauthorized maritime arrivals” within the meaning of the Migration Act, and thus whether the refusals of their applications for protection visas was subject to “fast track review” by the Immigration Assessment Authority (rather than review by the Administrative Appeals Tribunal).

In both of these cases, the applicants were citizens of Bangladesh who arrived in Australia by boat.

Although it is not expressly discussed in Judge Smith’s reasons in either of these cases, it appears that the boats on which the applicants were passengers were intercepted (by the Australian Navy?) in the waters of Ashmore and Cartier Islands, and were then transported to Darwin.

The question of whether the applicants were unauthorized maritime arrivals turned on whether the waters surrounding Ashmore and Cartier Islands are within the migration zone of Australia, as defined by the Migration Act.

It will be recalled that the migration zone is defined to mean “the area consisting of the States, Territories, Australian resource installations and Australian sea installations” but does not include sea within the limits of a State or Territory but not in a port”.

It should also be noted that under the Migration Act, the term port is defined to mean a “proclaimed port”, defined in turn to mean “a port appointed by the Minister” (under sub-section 5(5) of the Act.  Importantly for these decisions, the power of the Minister to designate a proclaimed port extended only to ports. 

So if something is not, as a matter of fact, a “port”, it cannot become a proclaimed port. Thus if something is not a “port”, it cannot be designated as part of the migration zone, and a person entering that area without a visa cannot be an unauthorized maritime arrival.

By way of background, in December 2001, the then-Minister for Immigration and Multicultural and Indigenous Affairs had signed an instrument purporting to appoint the waters around Ashmore and Cartier Islands as a “proclaimed port”.

This is where the facts relating to the waters around Ashmore and Cartier Islands became critical.

As described in Judge Smith’s reasons, the Territory of Ashmore and Cartier Islands is an uninhabited reef system consisting of coral and sand, about 840 kilometres west of Darwin.   It contains 3 small islands, a reef, and surrounding waters.  There is no electricity or other infrastructure on the islands, aside from freshwater wells that are contaminated with cholera. There has been no commerce on the islands since the later 1800’s, when the phosphate deposits on the islands were exhausted. Cartier Island has been used periodically since World War II as a weapons range.

Judge Smith concluded on these facts that the waters around Ashmore and Cartier Islands did not meet the definition of a “port”,  primarily because they had not been used, and could not be used, for the transfer of goods or passengers from vessels unless the transfer was first to another vessel.

So: since the waters around Ashmore and Cartier Islands are not a “port”, they could not be proclaimed to be a port by the Minister.

So the instrument by which the Minister had proclaimed the waters to be a port was beyond the Minister’s power, and thus invalid.

The critical consequence was that the waters (where the applicants’ boats had apparently been intercepted) were not part of the migration zone.

And the further, also critical consequence, was that the applicants had not entered the migration zone by sea, and therefore did not fall within the definition of unauthorized maritime arrivals. 

And therefore, because the applicants were not unauthorized maritime arrivals as defined by Migration Act, their applications were not subject to fast track review, meaning that only the AAT, and not the Immigration Assessment Authority, had jurisdiction to hear applications for merits review of the refusal of their applications.

So, layer upon layer upon layer!

But the key point of these decisions again is that persons whose boats were intercepted in the waters of Ashmore and Cartier Islands and then transported from there to Darwin or elsewhere on mainland Australia are not unauthorized maritime arrivals and the Immigration Assessment Authority does not have jurisdiction to hear their case.

So, if you are personally one of these boat arrivals, or one of your clients is, then your case is not subject to review by the Immigration Assessment Authority. If you or one of your clients falls within this cohort, it is essential to seek legal advice on an urgent basis!!!!!!

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