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.