SZTXY v Minister for Immigration and Border Protection

Perram J: 1 Before the Court is an appeal and a cross-appeal from orders made on 15 May 2014 by Judge Driver in the Federal Circuit Court. At the time that his Honour made those orders there were, in substance, two issues before that Court: the first, which was concerned with the substantive position of the applicant, related to what I shall refer to as 'the data breach question'; the second related to the jurisdiction of the Federal Circuit Court to hear proceedings which related in the manner foreshadowed by the appellant to an unauthorised maritime arrival. 2 When the matter was called on for hearing this morning in this Court the Minister indicated that he wished to rely upon an argument which was not relied upon in the Court below. This argument took as its point of departure that the appellant was an unauthorised maritime arrival such that the consequence was that s 198AD of the Migration Act 1958 (Cth) applied to him, so that s 198 did not apply to him, and that he did not therefore face removal under s 198. The appellant resisted that argument being raised in this appeal on the basis that there were matters which, had it been raised below, he would have raised in response. These included arguments under ss 189, 195 and 195A of the Act. 3 It seems to me that, on any view, the hearing before the Federal Circuit Court has miscarried in that the central provisions which apply to the situation of the appellant were not considered by that Court. That is a sufficient reason to allow the present appeal, which was concerned with the application, in effect, of summary judgment provisions. It is just not possible for this Court to say, with the clarity required of the standard to be applied, that the decision below would be the same. The Minister contended in his cross-appeal that this Court should uphold his jurisdictional point. It is, in my opinion, impossible to separate out the substantive argument being conducted by the appellant and a consideration of the jurisdictional point in the way in which the Minister contends. 4 It may be, as a result of the amendment which has been foreshadowed by the appellant in response to the point now raised today, that the jurisdictional landscape will be entirely different on a rehearing. Given that the Federal Circuit Court has jurisdiction to determine whether it has jurisdiction, it would, in my opinion, be unwise for this Court to attempt to say in advance of the appellant's reformulation of its case what the correct answer to the jurisdictional question is. It seems to me, in those circumstances, that the appeal should be allowed, the cross-appeal should be dismissed, the relevant orders of the primary judge should be set aside and the Minister should be ordered to pay the appellant's costs in this Court and the costs in the Court below. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.