FEDERAL CIRCUIT COURT OF AUSTRALIA
| GAJJAR v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1859 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Migration Review Tribunal – visa – whether the applicant was physically present in the migration zone when the application for review was made – whether the “migration zone” includes airspace – at what point an application for review is “made” – “migration zone” does not include airspace – applicant was in Australia but not in the migration zone when the application for review was made – application for review is “made” upon fulfilment of the requirements of s.347(1) – application dismissed. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.15B Air Navigation Act 1920 (Cth), s.3A Migration Act 1958 (Cth), ss.4, 5, 6, 43, 80, 166, 169, 189, 338, 347, 348 Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth) |
| Applicant: | NISHITHKUMAR ARVINDBHAI GAJJAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 850 of 2012 |
| Judgment of: | Judge Burnett |
| Hearing date: | 18 July 2013 |
| Date of Last Submission: | 18 July 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 14 November 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Carter |
| Solicitors for the Applicant: | Hartnett Lawyers |
| Counsel for the Respondents: | Ms A. Wheatley |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
That the title to the proceedings be amended by substituting the name “Minister for Immigration and Border Protection” for the name “Minister for Immigration and Citizenship” as the name of the First Respondent.
The application filed 21 September 2012 be dismissed
The applicant pay the respondents’ costs of and incidental to the application fixed in the sum of $6,646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA |
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- Case
- [2013] FCCA 1859
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was the interpretation and application of section 347(3) of the Migration Act 1958 (Cth), which stipulates that an application for review of certain decisions may only be made by a non-citizen who is physically present in the migration zone when the application is made. The Court was required to determine whether Mr Gajjar met this jurisdictional requirement, given the timing of his flight into Australia and the lodgement of his application.
Judge Burnett considered the factual findings of the MRT, which had determined that Mr Gajjar's flight had not yet entered Australian airspace at the time his application was lodged. The applicant contended that, based on the flight schedule and time zones, he should have been considered within the migration zone. However, the Court accepted the MRT's factual finding that the flight had not entered Australian airspace. Furthermore, the Court affirmed the MRT's reasoning that even if the aircraft had entered Australian airspace, this did not automatically equate to the applicant being physically present within the migration zone for the purposes of the Act. The Court ultimately found no error in the MRT's decision.
Orders
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Background
Background to the litigation
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Evidence
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Decision
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Ratio Decidendi
Legal Principle Established
Applications for review are governed by s.347 of the Act. Materially, it provides:“Application for review by Migration Review Tribunal(1) An application for review of an MRT‑reviewable decision must:…(b) be given to the Tribunal within the prescribed period ……(3) If the MRT‑reviewable decision was covered by subsection 338(2) … an application for review may only be made by a non‑citizen who is physically present in the migration zone when the application for review is made.” In this case, the point in issue was whether or not the applicant was physically present in the migration zone at the time that the application was made. There is no dispute that the application was filed at or about 7:37pm AEDT on 1 February 2012 when the form of application was received at the Sydney registry. The Department’s records indicate that the applicant had departed Australia sometime before the decision was made. Although no point is taken with deemed notice, it is not in contention that the applicant received actual notice of the adverse decision on 31 January 2012, that being one day before the review application was to be filed. Accordingly, he made plans to immediately depart India for Australia. Following certain initial connecting flights, the applicant boarded Emirates flight EK432 from Singapore to Brisbane due for departure from Singapore on 1 February 2012 at about 3:15pm Singapore time. Singapore time is two hours behind Australian Eastern Standard Time (“AEST”) and three hours behind AEDT. Accordingly, the time of departure was 6:15pm in Sydney, which was then on AEDT. That flight arrived into Brisbane at about 12:50am AEST on 2 February 2012. Significantly however, assuming that the flight departed on time, the applicant would have been in the air en route to Australia for about 1 hour and 22 minutes (accepting a ‘wheels up’ time of 3:15pm Singapore time) at the time the review application was faxed to the MRT. Those facts adopt the most favourable case for the applicant. The applicant contended that by reason of those matters he was in the migration zone at the time the application was filed and, accordingly, he satisfied the terms of s.347. As a matter of fact the MRT found that the applicant’s flight (EK432) had not entered Australian airspace, therefore he was not in the migration zone at the time and thus not physically present in the migration zone when the application for review was made. Notwithstanding that factual determination, the MRT concluded that EK432’s entering Australian airspace did not of itself mean that the applicant had entered the migration zone. Accordingly, even if he had been in Australian airspace before 7:37pm he was not physically present in the migration zone at the time he made his application. The applicant contends the MRT’s findings are in error. He made application seeking an order that a writ of certiorari issue quashing the decision made by the MRT on 27 August 2012 and sought a declaration that the decision made is invalid and of no effect. He requested an order for the issue of a writ of mandamus compelling the MRT to determine the application according to law.