Gajjar v Minister for Immigration
[2013] FCCA 1859
•14 November 2013
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) |
| Associated Beauty Aids Pty Ltd v Commissioner of Taxation (Cth) (1965) 113 CLR 662 Purden Pty Ltd v Registrar in Bankruptcy for the Bankruptcy District of the State of New South Wales and the Australian Capital Territory (1982) 64 FLR 306 Sadiqi v Commonwealth (No 2) (2009) 181 FCR 1 SZJDS v Minister for Immigration and Citizenship (2012) 201 FCR 1 R.S. Geddes and D.C. Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 6th ed, 2006) |
| 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 AT BRISBANE |
BRG 850 of 2012
| NISHITHKUMAR ARVINDBHAI GAJJAR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 1 February 2012 the applicant made application for review of the delegate’s decision made on 11 January 2012 refusing to grant him a Skilled (Provisional) (Class VC) Subclass 485 (Skilled – Graduate) Visa. In the case of this form of visa, s.338(2) of the Migration Act 1958 (Cth) (“the Act”) provides that the decision to refuse a visa is a Migration Review Tribunal (“MRT”) reviewable decision, inter alia, if the non-citizen made the application for the visa whilst in the migration zone. In this case the application for review was faxed on 1 February 2012 at a time when the applicant was in airspace somewhere between Singapore and Australia. The MRT concluded that the applicant was not physically present in the migration zone when the application for review was made. Accordingly it determined that the application was not properly made and dismissed it. The applicant now applies for judicial review.
Background Facts
The applicant had originally applied for the relevant visa on 9 January 2012. His application by was refused by a decision made on 11 January 2012 of which he was notified via his migration agent on that day. News of that decision did not reach the applicant until 31 January 2012 as he was then in India. He gave instructions to his migration agent to seek a review and immediately departed India for Australia. The application for review of that decision was lodged by the applicant’s migration agent and received at the Sydney registry of the MRT by fax at 7:37pm Australian Eastern Daylight Time (“AEDT”) on 1 February 2012. The respondent’s electronic movement records indicate that the applicant departed Australia on 10 January 2012 and did not return until 2 February 2012. That is one day after the lodgement of the review application.
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.
In his application, the grounds claimed were:
“1. The Tribunal, in making its decision on 27 August 2012, erred in law by:
a. misinterpreting, misapplying or failing to apply s.5(1) of the Migration Act 1958 (the Act);
b. misinterpreting, misapplying or failing to apply s.347(3) of the Act;
c. misconceiving its decision making function in reviewing as required by s.348 of the Act;
causing it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material and/or to reach a mistaken conclusion, in a manner that affected its decision, and thereby committed jurisdictional error.
Particulars
A. The Tribunal misinterpreted, misapplied or failed to apply s.5(1) of the Act in that:
i. the Tribunal (at [21]) was precluded from making a finding that because the definition of ‘migration zone’ found in s.5(1) of the Act did not expressly include airspace, that the legislature therefore did not intend for that definition to include airspace; and
ii. the Tribunal (at [22]) was precluded from making a finding that if the legislature intended to include airspace in the definition of ‘migration zone’ in s.5(1) of the Act, then it would have specified its inclusion in that definition.
B. The Tribunal misinterpreted, misapplied or failed to apply s.347(3) of the Act in that:
i. the Tribunal (at [24-26]) was precluded from making a finding that the Applicant was not physically present in the ‘migration zone’ when his application for review was made because the finding turned on the Tribunal’s interpretation of s.347(3) of the Act that it was not permitted by law to make. In particular, the Tribunal did not make the correct or preferable decision because:
I. the Tribunal failed to acknowledge that the ‘migration zone’ extends to the airspace above its land and sea territory;
II. the Tribunal treated its jurisdiction to review this matter by having regard to whether the Applicant was physically present in the migration zone at the specific time that the Applicant lodged his application for review. However, proper reference should have been given to whether the Applicant was physically present in the migration zone on the day the Applicant lodged his application for review.
C. the Tribunal misconceived its decision making function in reviewing the Applicant’s application of an MRT reviewable decision, as required by s.348 of the Act, insofar as;
i. the Tribunal (at [26]) was misconceived in finding that the Applicant’s application was not an application properly brought under s.347 of the Act, as required by s.348 of the Act, thereby the Tribunal did have jurisdiction in this matter to determine the Applicant’s application.
2. The Tribunal, in making its decision on 27 August 2012, took irrelevant considerations into account and thereby committed jurisdictional error.
Particulars
Particulars A and B to ground 1 is repeated.
3. The Tribunal, in making its decision on 27 August 2012, failed to take considerations into account what [sic] it was required by law to take into account, and thereby committed jurisdictional error.
Particulars
Particular C to ground 1 is repeated.”
In paragraph 2 of his written submissions, counsel for the applicant more succinctly contended that the MRT fell into jurisdictional error when it decided for the purposes of s.347(3) and s.348 of the Act that the applicant was not physically present in the migration zone when his application for review was made by:
a)Misconstruing the expression “migration zone” by concluding that the migration zone does not include airspace;
b)Misconstruing s.347(3) by finding that the applicant must be in the migration zone at the moment the application is received by the MRT, rather than merely on the day the application is made; and
c)Misconstruing s.347(3) by holding that the phrase “when the application for review is made” means that the application is made when it is received at the MRT registry, rather than when it is received and processed by registry staff.
Ground One: Whether the “migration zone” includes airspace
Section 5(1) of the Act defines “migration zone” 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.”
The applicant’s contention concerning the meaning of “migration zone” was framed in the context of an argument that Australia has sovereignty over its airspace and that the airspace is part of the area consisting of its states and territories, and therefore within the migration zone. Those matters are axiomatic by operation of s.3A of the Air Navigation Act 1920 (Cth), which approved the ratification of the Convention on International Civil Aviation 1920[1] and which enacted the fundamental principle of international law that a sovereign state has sovereignty over its airspace. Relevantly, Article 1 provides:
“The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory.”
Further Article 2 provides,
“For the purposes of this Convention the territory of a State shall be deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State.”
[1] The Convention is reproduced at Schedule 1 of the Air Navigation Act 1920 (Cth).
The applicant also referred to s.6 of the Seas and Submerged Lands Act 1973 (Cth), which declares and enacts that sovereignty in respect of the territorial sea and the airspace over it is vested in and exercisable by the Crown in right of the Commonwealth. It was noted that the “territorial sea” is defined by s.3 of that Act and by Articles 3 and 4 of the United Nations Convention on the Law of the Sea[2] to extend up to 12 nautical miles offshore. That position is reinforced by s.15B of the Acts Interpretation Act 1901 (Cth). Finally, in terms of sovereignty the applicant also contended that the definition of “land” at common law derives from the maxim cuius est solum, eius est usque ad coelum et ad inferos.[3] Accordingly, it was contended that the maxim has the result that ownership or occupation of lands extends to ownership and occupation of the airspace above that land, thereby affording a remedy in damages or injunction to restrain trespass into airspace as illustrated in LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 at 495.
[2] Done at Montego Bay on 10 December 1982.
[3] ‘Whoever owns [the] soil, [it] is theirs all the way [up] to Heaven and [down] to Hell’; Re Lehrer and the Real Property Act 1900 [1960] NSWR 570; Commissioner for Railways v Valuer-General [1974] AC 328.
Upon that foundation the applicant contended that since the doctrine of tenure operates on the premise that all grants of land in fee simple must ultimately derive from the radical title of the state, so too must the airspace above land also ultimately derive from the state’s radical title. In that context it was contended that the definition of “migration zone” in the Act thereby delimits the geographical area by reference to which certain legal consequences flow. Accordingly, as the horizontal bounds of that area are delimited by the land and sea boundaries, which are expressly included in the definition, it follows that the vertical bounds of that area, although not the subject of express inclusion, constitute the airspace above such land and sea. It was contended by the applicant that absence of any mention of airspace in the definition is explicable on the basis that it necessarily and obviously follows that the express reference to land within the states and territories carries with it the airspace above that land.
In response to what can be characterised as the applicant’s sovereignty argument, the respondents assert that matters of sovereignty are of no assistance when seeking to interpret the term “migration zone.” The respondents contend that the term “migration zone” must be construed consistently with the language and purpose of all the provisions of the Act and that the process of construction must always begin by examining the context of the provision: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381.
At its core, the respondents’ submission is that the term “migration zone” is a term used throughout the Act and not only in the context of an application to the MRT for review. It submitted that s.6 of the Act clarifies the phrases of “enter Australia, leave Australia and remain in Australia.” It submitted that they are not the same as “in Australia” or “to Australia.” It submitted that this is important as it is possible for a person to be in Australia without having entered Australia. It contended that so much was recognised in s.189(2) and (4) of the Act in relation to the detention of unlawful non-citizens. Further, it noted that it is possible for a person to be in Australia but outside the migration zone: Sadiqi v Commonwealth (No 2) (2009) 181 FCR 1 at [110]-[116]. It contended that this matter was significant in undertaking the statutory construction of the term “migration zone” and in recognising it as not simply being the same as “in Australia.” It follows in the respondents’ contention that the concept of sovereignty and application of common law principles in relation to land are almost of no assistance when seeking to interpret the term “migration zone.” Adopting that approach, the respondents contend that the term “migration zone” must be something less than the entirety of Australia.
In support of their contention, the respondents referred to s.43 of the Act which provides that visa holders usually must enter at a port (a port includes a proclaimed airport: s.5(1) of the Act). Subsection 2 relevantly provides:
“(2) For the purposes of subsection (1), a holder who travels to and enters Australia on an aircraft is taken to have entered Australia when that aircraft lands.”
It was contended that by using the term “entered Australia,” the Act is referring to entering the migration zone. The respondents submitted that this was consistent with an interpretation that the migration zone does not include the airspace.
In written submissions prepared by counsel for the applicant it was contended that his proposed construction could be tested by an examination of an example where an aircraft takes off from Brisbane and lands in Townsville. He contended it would be absurd to suggest in that scenario that the passengers would have left Australia or Queensland while they were in the air. However, as was submitted by the respondents, that situation is expressly provided for within the Act. Section 80 of the Act provides:
“Certain persons taken not to leave Australia
A person is taken not to leave Australia if the person goes outside the migration zone on a vessel and:
(a) does not go (other than for transit purposes) to a foreign country; and
(b) remains a passenger, or a member of the crew, of that vessel while outside the migration zone; and
(c) is outside the migration zone for no longer than [30 days].”
Likewise, s.169 aids the respondents’ contentions. It provides:
“Section 166 [Persons entering to present certain evidence of identity etc.] not usually to apply
(1) If:
(a) a person goes outside the migration zone; and
(b) under section 80 is not taken to leave Australia;
the person is not, on re‑entering the migration zone, taken to enter Australia for the purposes of section 166 but may be directed by a clearance officer to comply with that section.
…”
As the respondents submitted, consistent with s.80 and s.169, a person who travels in an aeroplane which takes off from Brisbane and lands in Townsville would usually leave the migration zone whilst in the airspace. However, s.80 provides that even though travelling in that airspace would usually amount to leaving the migration zone, if the person does not go to a foreign country and remains a passenger outside the migration zone but is so for less than 30 days, the person is taken not to have left Australia; that is, the person does not leave the migration zone. Further, s.169 provides that although a flight from Brisbane to Townsville would be leaving the migration zone, when considered together with s.80 such a person is taken not to have left the migration zone. Accordingly, s.166 usually will not have to be complied with. That is, those persons upon entering Australia in such circumstances will not be required to present evidence of identity. The respondent contends that those provisions are entirely consistent with the concept that airspace does not form part of the migration zone.
Accepting as I do that Australian sovereignty arises in respect of all land, sea and airspace above that land and sea, it is plainly within the power of the Parliament to enact legislation relevant to it.
The definition of “migration zone” only expressly addresses land and sea. However, the reference to land and sea is expressed to be inclusionary. That is to say that the term “migration zone” “means the area consisting of the States [and] the Territories …” but also includes those matters such as land, sea and associated structures which themselves are not intended to provide an exhaustive definition.
The respondent points to the definition provided in s.5 of “enter Australia, leave Australia and remain in Australia” to highlight the fact that it is possible to be in Australia but outside the migration zone. It contends that these matters support its connection that airspace is excluded from the migration zone. In my view, such a position appears to be correct.
However, that analysis does not of itself address the question of general airspace exclusion. To put it another way, if airspace is within the migration zone and the migration zone includes the whole of Australia then, if part of Australia is excluded from the migration zone, the question of whether the airspace associated with the excluded part is also excluded is not addressed.
Plainly, there is a power to define the migration zone to be something different from what might physically constitute Australia. So much is evident by the scheme of the legislation, and in particular s.6 of the Act. In s.6 it is implicit that Australia and its migration zone need not be coincident. That the parliament has plainly intended that Australia and the migration zone are not intended to be coincident was evidenced by the amendments to the Act introduced by the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth), which, inter alia, sought to provide special measures for persons who were “… in Australia but outside the migration zone ...” and were seeking to enter an excised offshore place (i.e. Christmas, Ashmore and Cartier Islands) without a visa.[4] These measures were incorporated into s.189(3) of the Act. Norfolk Island has also been declared to be outside the migration zone.[5]
[4] Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Bill 2001 – Bills Digest No. 70 2001–02.
[5] Norfolk Island’s migration matters are governed by its own Immigration Act 1980.
When considering the term “migration zone,” some consideration must be given to its factual context. Arrival in Australia can only be undertaken by either air or sea. There is no land route or bridge available to any part of continental Australia, its territories or protectorates. Importantly, arrival by air can only be undertaken mechanically. Even to fly across the narrowest territorial boundary located in the Torres Strait could only be effected mechanically (including by balloon) when regard is had to the actual distance between Papua New Guinea and the nearest navigable land form within Australia. Against that factual background, and in light of the power of the Parliament to exclude parts of the sovereign territory of Australia (which would include its airspace), it would appear that the definition of “migration zone” does intend to confine it to Australian land and sea.
Perhaps the most telling factor in the construction of the definition is the manner in which it is expressed. The migration zone is said to “mean” the “area” consisting of the states, territories, Australian resource installations and sea installations. The use of the term “mean” as a matter of statutory construction is intended to confine the subject matter of the term.[6] In this case the migration zone is defined by reference to “area.” “Area” is a noun commonly associated with the definition of surface. That is, something that is two dimensional. However, space is not two dimensional, but rather volumetric or three dimensional. Arguably, had the Parliament intended that the migration zone include not merely Australian land and sea but also its airspace, the definition could have been extended to include a reference to airspace.
[6] R.S. Geddes and D.C. Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 6th ed, 2006) at [6.56].
I have earlier noted that the definition of “migration zone” also makes reference to inclusions. Those inclusions introduced “to avoid doubt” seek merely to explain “… the area consisting of the States, the Territories, Australian resource installations and Australian sea installations …” To that end they provide an expansive definition of areas included within the migration zone, but of themselves do not extend the definition to include airspace.
The characteristics that constitute Australia’s sovereign interests are binary in nature, that is, the land and sea (the horizontal elements) and the airspace above the land and sea (the vertical elements). Each are clearly capable of defined demarcation. Accordingly, I accept the respondents’ argument that I should apply the principle of statutory construction expressio unius est exclusio alterius in this instance. That is to say, by reference to “the area” consisting of the states and other places in the definition of “migration zone,” it is intended to exclude any reference to airspace above that “area.”
In my view, confining the definition of migration zone to land mass affords a harmonious operation of that provision with other provisions in the Act. For instance, airspace issues are immaterial for migration purposes for travel within the migration zone provided that a person remains a passenger or member of the crew on the relevant vessel (which includes an aircraft) and does not remain outside the migration zone for longer than the prescribed period: s.80. Accordingly, as long as flight remains constrained by the laws of gravity, physics and physiology, and we do not concern ourselves with science fiction, if an aircraft takes off from Darwin for Christmas Island, it will in its ordinary course arrive well within the prescribed period provided for in s.80 and such a person will be taken not to have left Australia. The issue of whether or not that person was in or outside the migration zone is immaterial. Likewise, such a construction does not cause a difficulty with s.166. Indeed, the provisions referred to by the applicant in the context of his argument are more applicable to maritime arrival than arrival by aircraft.
Contrary to the applicant’s contentions, the construction contended for by the respondents, namely that the migration zone only refers to land and sea and not airspace, would work equally comfortably with activity along Australia’s closest borders. For instance, a helicopter operator transiting through Australian airspace in the Torres Strait would not enter the migration zone and subject himself to the penalties for such an unlawful entry by that fact, accepting that he otherwise had the appropriate airway clearances to effect such a transit.
Likewise, the contentions made by the first respondent concerning s.43(2) support its submission that it is possible to be in Australia but outside the migration zone. That section has important work to do only if airspace is excluded from the migration zone. It recognises that entry into Australia by aircraft across Australia’s sovereign airspace borders requires particular attention. To regulate entry into Australia of persons by air, the Parliament plainly had in mind the practical issues that air travel presents. Ordinarily, air travel is a highly regulated activity commonly conducted from major ports and installations which are readily capable of policing and regulation by customs, quarantine and immigration services and on the whole any air movement is usually transparent to air services and defence authorities.
Section 4 of the Act identifies its objects:
“Object of Act
(1) … to regulate, in the national interest, the coming into, and presence in, Australia of non‑citizens.
(2) … provides for visas permitting non‑citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non‑citizens to so enter or remain.
(3) … this Act requires persons, whether citizens or non‑citizens, entering Australia to identify themselves so that the Commonwealth government can know who are the non‑citizens so entering.
(4) To advance its object, this Act provides for the removal or deportation from Australia of non‑citizens whose presence in Australia is not permitted by this Act.
…”
The relevant provisions, particularly those that relate to the definition of “migration zone,” are addressed to those objects and the control and enforcement of entry into Australia. As the 2001 amendments to the Act plainly illustrate, the process applicable to dealing with a person entering into Australia depends upon whether or not the person was within or outside the migration zone at the time of entering Australia.
Additionally the Act does not appear to have extraterritorial effect. In particular, the provisions directed to enforcement, particularly by “officers,”[7] would be limited to action taken by officers within Australia’s territorial jurisdiction. Adopting a binary approach to the construction of the term “migration zone,” it is plain that an officer under the Act would immediately be able to act upon an authorised entry into an area, being Australia’s sovereign waters, once the fact of entry had occurred. As a land girt by sea, no issue arises concerning irregular entry by land.
[7] As defined in s.5 of the Act.
Putting to one side entry into the migration zone addressed in s.43, which would cover the overwhelming volume of air based entry into Australia, the plain intent of the definition of “migration zone” to exclude Australian airspace is apparent. Ordinarily, any irregular entry by aircraft other than on a “pre-cleared flight” presents significant policing problems. Practically speaking, means do not currently exist to enable an “officer” to intercept an aircraft the moment it enters Australia’s territorial airspace. Short of interdiction and turning away an aircraft at the border, the first available opportunity for an officer to take action provided for under the Act would be upon the aircraft either landing on ground, or if it was so equipped, at sea, in which event it becomes a boat.
Notwithstanding breach of airspace issues, the fact of entry into Australian sovereign airspace may not of itself necessarily have migration consequences. For instance, a helicopter transiting through airspace in the Torres Strait from one part of Papua New Guinea to another, whether the transit was authorised or otherwise, would not necessarily intend migration consequences under the Act. Accordingly, given the temporal limitations of flight and the distances capable of being covered in a short time, the only realistic manner in which aviatic entry can be policed is by addressing irregular aviation arrivals at the point of arrival, where the aircraft lands or where the individuals concerned otherwise make landfall. In the event of a sea plane arrival, that would occur upon landing within Australia’s sovereign waters. Accordingly, when regard is had to the objects and manner in which the Act is drafted, my view is fortified that the term “migration zone” is binary in concept and that it was the intention of the Parliament to include only a consideration of surface, and not airspace above the surface, for the purpose of the definition.
As was contended for by the respondent, a person entering the migration zone by air does not do so on crossing the 3 nautical miles coastal waters limit, the 12 nautical mile territorial sea limit or the 24 nautical mile contiguous zone limit, nor the 200 nautical mile exclusive economic zone limit, but does so upon entering Australia under the Act, at a port at which point that person then enters the “migration zone.” In my view, the respondents’ submissions on this matter are more persuasive and I accept them.
Ground Two: Whether the applicant must be in the migration zone at the moment the application is received by the MRT
Notwithstanding my determination above that the applicant was not in the migration zone on the day that the application was filed, I proceed to deal with the second ground in the event that I am wrong in determining the first.
The applicant contended before the MRT that for the purposes of s.347(c) it was sufficient that he was in the migration zone on the day the review application was filed, and that he did not have to be so at the precise moment it was filed. If it is accepted that being in Australian airspace constitutes being in the migration zone, there is no doubt that he was in the migration zone for at least some period prior to midnight on 1 February 2012 and thus he was in the migration zone on the day the application was filed.
Section 347(3) relevantly provides:
“(3) If the MRT‑reviewable decision was covered by subsection 338(2), (3), (3A) or (4), 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.”
The applicant contends that there is ambiguity about the meaning of the word “when” as it appears in subsection 3. He contends that in that context “when” could be capable either of two meanings, being:
a)The moment or time when the application for review is made; or
b)The day when the application is made.
The applicant contends that, in light of its alleged ambiguity, the better interpretation is the one that provides for it to be on the day the application was made and not the moment it was made. He contends that this construction can be supported on four bases:
1.The section prescribes that an application for review must be given to the MRT within “28 days” after notification of the decision. Accordingly, consistent with the time for the making of the application being prescribed by reference to day, any further time requirement of physical presence in the migration zone should also be referenced to “a day,” meaning being physically present in the migration zone at some time on the day the application is made;
2.There is no particular reason why the legislature would have intended that the applicant must be in the migration zone at the very moment the application was made, rather than merely on the day. He contended that to provide otherwise could lead to anomalous, capricious, arbitrary and unjust results;
3.Courts generally prefer an approach to statutory provisions requiring either calculation of time by reference to a day rather than a moment because of the difficulty that can attach to establishing a moment in time with certainty: Associated Beauty Aids Pty Ltd v Commissioner of Taxation (Cth) (1965) 113 CLR 662; and
4.Such a construction would be consistent with the Federal Court’s liberal interpretation of other aspects of s.347 of the Act involving time: Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99.
I will deal first with the question of temporal certainty. In Associated Beauty Aids Pty Ltd v Commissioner of Taxation (Cth), Barwick CJ at 669 observed, as was submitted by the applicant:
“There are also great practical difficulties if the paragraph is construed as giving an operation to the notice of election from the moment of its delivery. This time in the ordinary course would be difficult to establish with certainty.”
However, those observations were made in the context of notices concerning the conversion from preference to ordinary shares. The time of conversion was important as only ordinary shares carried voting rights. The issue in that case concerned the computation of time. It was in that context that the then Chief Justice made the remarks noted above. Here s.347(3) is not concerned with the computation of time but the physical presence in the migration zone of a review applicant at the time at which his/her application is made. That is a matter which can be readily established. I do not think that the observations in Associated Beauty Aids Pty Ltd v Commissioner of Taxation (Cth) are helpful in construing s.347(3).
The second substantial argument of the applicant was premised upon the decision in Kirk v Minister for Immigration and Multicultural Affairs. In that case the Court was considering s.347(1)(c) and whether or not in that context an application had to be “accompanied by the prescribed fee.” In that regard the Court noted that the fee was to be paid before the end of the period within which the application must have been given. As Lehane J remarked at 102:
“Once it is seen that it is essential to give the application to the Secretary within the prescribed period, it must be concluded, in my view, that it is equally essential that the application “be accompanied by the prescribed fee (if any).” The requirement that the application be “accompanied” by the prescribed fee must mean, at least, that that fee is to be paid before the end of the period within which the application must be “given”: similar words were so construed by the High Court of New Zealand (Fisher J) in Wielgus v Removal Review Authority [1994] 1 NZLR 73. Fisher J held also that the requirement that an appeal be “accompanied by the prescribed fee” meant that, if an appeal were validly to be brought, both the notice of appeal must be lodged and the fee must be paid within the period provided for lodgment of the notice. In the present context, where s 339(1) provides that each step “must” be taken, both (giving effect to the word “accompanied”) within the prescribed period, there is no ground to conclude that one requirement is any less essential than the other in order to invoke the jurisdiction to review.”
The applicant relies upon observations made by the Courts in Kirk v Minister for Immigration and Multicultural Affairs, SZJDS v Minister for Immigration and Citizenship (2012) 201 FCR 1 and Braganza v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 364 concerning s.347(1), which addresses the mandatory requirements for an application for review. The observations are in my view helpful, although not necessarily for the reasons advanced by the applicant. Those decisions considered the mandatory requirement that the application be accompanied by the prescribed fee as provided for in s.347(1)(c).
In Braganza the issue was whether the requirement was satisfied in the context of an application being accompanied by an unsuccessful fee waiver request and whether or not later payment satisfied the mandatory requirement. In Kirk the same issue arose in the context of the application being accompanied by a cheque endorsed for the prescribed fee but which was later dishonoured.
In each case the applicant manifested an intention to pay the prescribed fee at the time of filing their respective applications, a fact upon which the present case can be distinguished.
In particular, counsel for the applicant referred me to the second paragraph of the decision of Lehane J in Kirk as authority in support of his submission that all that was essential was that the applicant was in the migration zone on the day that the application was made but that the applicant did not have to be in the migration zone at the moment it was made. It was contended in this respect that s.347(3) should be read similarly to his Honour’s conclusions concerning the temporal requirements in the context of s.347(1).
As can be seen from the explanation by Lehane J at 102, his Honour considered that the requirements of s.347(1)(a)(b) and (c) were equally essential to the making of an application. In that context he adopted a permissive approach concerning the requirement that the application be “accompanied” by the prescribed fee, determining that “[that] must mean, at least, that the fee is to be paid before the end of the period within which the application must be ‘given.’” He relied upon a similar view taken by the High Court of New Zealand in Wielgus v Removal Review Authority [1994] 1 NZLR 73, where Fisher J held in respect of a requirement that an appeal be “accompanied by the prescribed fee” meant that if an appeal were validly to be brought, both the notice of appeal must be lodged and the fee must be paid within the period provided for within lodgement of the notice.
Accepting that the construction determined by Lehane J was that intended by the legislature, the question remains as to why the requirement mandated in s.347(3) was not simply included as a subsection within s.347(1) if it was intended to operate similarly, and, if not, whether the same approach to its construction ought apply to s.347(3).
Plainly, s.347(1) has to be read independently insofar as it stands apart from s.347(3). The temporal requirement of s.347(3) is expressed differently to that in s.347(1). Section 347(3) employs the word “when” as a relative conjunction introducing the adjectival clause concerning the applicant being present in the migration zone at the time of making the review application. Section 347(1) addresses the mandatory requirements that accompany an application for review. Those requirements include the temporal factors generally as well as those addressed in Kirk and Braganza.
What s.347(3) requires is that the applicant be physically present in the migration zone at the moment in time when the application, addressed in the appropriate form, is given to the MRT and accompanied by the prescribed fee as required by s.347(1) is made. Kirk is authority for the proposition that the payment of the fee may occur later in the day that the application is given to the relevant tribunal. But on its own facts that was because there might be delay between the giving of the cheque and its later honouring.
Similarly, in Braganza the visa applicant sought a review of a migration decision. He completed a review application and also made application for fee relief. He presented both applications to the MRT at the same time. His fee waiver application was refused and he was advised to pay the fee within the time limit provided or that his application would not be valid. He sought to review that decision, but concurrently the time for making the application expired and his application was dismissed. The visa applicant appealed that dismissal. At first instance his appeal was dismissed. Before the Full Court his subsequent appeal was allowed. It approached the construction of s.347(1)(c) differently to Lehane J. The Full Court adopted an approach consistent with submissions addressed by the applicant’s counsel, Dr Griffiths. It summarised his submissions as follows:
“… Dr Griffiths contended that s.347(1)(c) should be construed in the context of the Act as a whole, and in light of the fact that the legislature had made express provision, in s.504(1)(b), for the making of regulations governing waiver of fees. He submitted that, when it enacted s.504(1)(b), the legislature must have recognised that it might not be possible in every case for the MRT to determine an application for waiver within the prescribed period. He submitted that s.347(1)(c) should be construed in a manner which recognised that fact, provided that the language of the section was open to that construction.”[8]
In accepting that submission, the Court concluded at [52]:
“… Dr Griffiths’ narrower construction argument[9] is plainly tenable. His contentions are also broadly consistent with the provisions of the Act when read as a whole. We consider that s.347(1)(c) ought to be so construed.”
[8] At [39].
[9] At[27] Dr Griffith’s contended that provided the applicant sought a waiver of the prescribed fee within the prescribed period the MRT could hear the matter, even if the waiver was refused after the expiration of the prescribed period but the prescribed fee was paid within a reasonable time thereafter.
As the Full Court noted, the appellant’s argument accepted that the applicant for review “must do something about the prescribed fee within the prescribed period, but contends it is sufficient that the applicant for review has sought waiver of the fee.”[10]
[10] At [50].
However, the Full Court otherwise accepted the orthodox approach advanced by Dr Griffiths for the construction of statute that,
“… in construing the words of a statute, “the grammatical and ordinary sense of the words is to be adhered, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest” of the Act — Grey v Pearson (1857) 6 HLC 61 at 106; 10 ER 1216 at 1234 per Lord Wensleydale; see also Australian Boot Trade Employees' Federation v Whybrow & Co (1910) 11 CLR 311 at 341-342 per Higgins J; and Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337 at 371 per Dixon J.”[11]
[11] At [41]
Section 347(3) is not afflicted by the same difficulties as s.347(1)(c). Section 347(3), like s.347(1)(a) and (b), is capable of ready construction without regard to secondary input. For instance, the approved form can be readily ascertained; there can be no scope for amelioration of that necessary requirement. The period within which the applicant must give the application for review to the MRT is readily understood.
However, difficulties do arise with s.347(1)(c) concerning applications for review being “accompanied” by the prescribed fee. Except in the instance of cash being tendered at the time of giving the application for review to the MRT, other matters might intervene. It is those intervening factors, such as difficulties associated with a fee waiver application or perhaps even the cashing of a cheque, which necessitated a permissive approach. So much was observed by the Court at [41], where it noted:
“… To construe s 347(1)(c) as the primary judge had done would produce just such an inconsistency, since the legislature could hardly have intended to confer upon an applicant a right to seek a waiver of fees which was incapable, in any practical sense, of being exercised. It was said to be highly unlikely that the legislature had intended that an impecunious applicant seeking review of an MRT-reviewable decision should be denied the right to that review unless he or she somehow procured the not insubstantial sum of $1,400, and paid it to the MRT within the prescribed period. It was also unlikely that the legislature intended that an application to the MRT for waiver of the fee, because it had caused or was likely to cause “severe financial hardship”, should itself be accompanied by the fee which the applicant claimed not to be able to pay. It would be of little solace to an applicant in that position to be told that he or she might recover the fee later, if the waiver were granted.”
It is noteworthy that the Full Court was careful to avoid having to decide whether Kirk was correctly decided. However, it is plain from the Full Court’s remarks at [59] that it was not entirely comfortable with the decision in Kirk, and as such it should be treated with some caution.
Reference was also made to the Full Court’s decision in SZJDS v Minister for Immigration and Citizenship and Another (2012) 201 FCR 1. Respectfully this decision is of no assistance to the applicant. The issue in that case concerned the form used in the application as required by subsection (1)(a), the need for strictness in compliance with such form to an application made pursuant to s.347 and the notice requirements following. It does not assist in a consideration of s.347(3).
In my view, the decisions addressing the approach to s.347(1)(c) should be confined to that section. Section 347(3) is, as the respondent contended, plain in its expression. It follows that the grammatical and ordinary sense of the words ought be adhered to unless some absurdity, repugnance or inconsistency with the rest of the Act can be demonstrated. In this instance no absurdity can be demonstrated. The only illustration advanced in submissions by the applicant was the prospect that an applicant might give instructions for the filing of an application and then immediately proceed to leave the migration zone. No doubt that could occur. However, if that were to occur it would arguably occur in a considered and voluntary sense. It is something over which the review applicant would have control. That is entirely different to the circumstance that prevailed in Braganza, where the matter to be complied with was in the hands of a third party. Importantly, it is difficult to conjure up an absurd, repugnant or inconsistent outcome with the Act in the context of a deliberate and voluntary decision made by a review applicant not to be physically present in the migration zone when the application for review is made.
Undoubtedly instances may be illustrated which appear to be harsh and unreasonable, such as where a review applicant in good faith seeks to make the application but is required to urgently leave the migration zone on compassionate grounds before his migration agent makes the application. However, those instances fall within the class of cases identified by Mansfield J in Tabet v Minister for Immigration & Multicultural Affairs (1997) 75 FCR 446. In that instance, the review applicant’s application was found to be incompetent because she did not, through no fault of her own, receive notice of the decision within sufficient time to make her application.[12]
[12] The error appears to have been the fault of Australia Post in undertaking their mail redirection process.
In my view, the terms of s.347(3) stand alone and are clear in their expression. They require the review applicant to be present in the migration zone at the moment the review application is made. I reject the applicant’s contentions to the contrary.
Ground Three: When was the application for review made?
Section 347(3) requires that the applicant be physically present in the migration zone when the application for review is “made.” If I am wrong on my earlier finding it is the applicant’s contention that if the review application was “made” at some later time of the day on which it was given to the MRT the application was made when the applicant was then present in the migration zone. The application was faxed to the Tribunal on 1 February 2013 at 18:57 hours. It satisfied the s.347(1) criteria in that it was in the correct form: (par (a)); it was given to the Tribunal within the limitation provided: (par (b)); and it was accompanied by the prescribed fee in that Part H of the form was completed and incorporated provision for payment by an identified credit card in respect of the correct fee: (par(c)).
The applicant contends that the use of the verb “made” in s.347(3) is deliberately different to the requirement in s.347(1)(b) that requires the application to be “given” to the MRT within the prescribed period. It was submitted that the deliberate use of different language indicates that differing meanings were intended and accordingly, “when the application for review is made” in s.347(3) means something more that “given to the Tribunal” as required by s.347(1)(b).
In support of its contention the applicant relied upon the decisions of the Deputy President of the Administrative Appeals Tribunal (“AAT”) in Re Jackson and Minister for Immigration and Citizenship[13] and the Full Court of the Federal Court in Hong v Minister for Immigration and Multicultural Affairs.[14]
[13] (2011) 128 ALD 355.
[14] (1998) 82 FCR 468.
The applicant submitted that in Re Jackson the Tribunal distinguished the differing language employed. In drafting the sections the draftsman had used the words “lodge” and “make” in the differing sections under consideration. It was submitted the word “lodge” was the equivalent to the requirement “give” in s.347(1)(b). The submission continued that in Hong the term “lodging” was determined to mean what happens when an application “comes into the possession of the Registry or the staff of the Registry[15]”. It was submitted that in Re Jackson, the Deputy President distinguished between the words “lodge” and “make” in the context of applications for review by the AAT in the following terms:
“In ordinary usage, the meanings of the word “lodge” include “to deposit” and those of “make” include “to cause, bring about or create something by one’s actions.” It would seem, then, that parliament intended them to have different meanings. To bring something about may require more than simply depositing a document and I think that this is how parliament intended to differentiate between the two words.
… I think that parliament has chosen its words with care to convey these different things. Having regard to the word “lodge,” I think that it is intended to convey the meaning of a person’s putting a document that otherwise meets all the requirements of an application in the possession of the tribunal. It is the putting into possession that is lodgment whether that is done by physically leaving it with the tribunal’s registry or by some other means including mail, facsimile or electronic mail. “Make,” on the other hand, requires something more. That something more is that it meets all of the other criteria prescribed in the AAT Act.”[16]
[15] Hong v Minister for Immigration and Multicultural Affairs (supra) at 471 per Burchett, Lehane and Finkelstein JJ.
[16] At [17]-[18].
The applicant contends that by parity of reasoning the temporal requirement that the applicant be physically present in the migration zone is directed not to the time at which the document comprising the application for review is itself lodged with, or given, to the registry, but rather, the time at which the application is itself “made” by the applicant in the sense of being received and processed by the registry staff.
For the respondent it is contended that the word “made” must be considered in its grammatical sense, being the past participle of the verb ‘make.’ Adopting that approach, the respondent submitted that the MRT will consider the potential application for review at a time after the applicant for review usually makes that application.
The respondent contends that it follows that by reading s.347(1)(b) and Regulation 4.10 together the application for review is given to the MRT at the time when the fax is received at the registry of the MRT. Further, that upon reading the requirements of an application for review under s.347 as a whole, the application for review (on the approved form with the prescribed fee) must be given within the prescribed period; not within the prescribed day. In this context, ‘period’ means “an indefinite portion of time … or any specified division or portion of time.”[17] This interpretation is amplified for instance by Regulation 4.10 which specifically provides that the application is given at the time the fax or transmission is received.
[17] Macquarie Dictionary (Macquarie Press, 3rd ed, 2005).
The approach contended for by the respondent can be reconciled with the authorities of both Re Jackson and Hong. As noted above in Re Jackson the Tribunal observed on the distinction in drafting language between the words “lodge” and “make.” It was submitted that the word “lodge” is equivalent to the word “give” for the purposes of making an application for review to the MRT, a submission I accept. In Hong, “lodging” has the same meaning as the word “given” employed in s.347(1)(b). In that context the terms “lodge” and “given” in Re Jackson can be considered as being broadly similar. At this point the words of Deputy President Forgie at para.[18] of the decision require careful attention. Here, as in Re Jackson, the scheme of the legislation employs language of “making” and “lodgement”[18]. In that context the Deputy President observed, “Make” on the other hand, requires something more. That something more is that it meets all of the other criteria prescribed in the AAT Act”. Here the ‘making’ is satisfying all the criteria provided for in s.357(1) (a), (b) and (c); that is the “something more”.
[18] at ]15] and [16]
It follows that I accept the respondents’ submission that an application is “made” for the purposes of s.357(3) once all the criteria addressed in s.357(1) have been complied with. Respectfully, the applicant’s submissions on this point either misconstrued or misunderstood the observations of the Deputy President.
The consideration of what is meant by “when” directs attention to the time at which the application is made in accordance with the regulations with those two requirements being simultaneous. Accepting a construction which provides an application is made upon fulfilment of the s.347(1) criteria it follows that the application must be made by the non-citizen the subject of the decision and that the non-citizen must be present in the migration zone at the moment the criteria are satisfied.
In my view the respondent’s construction is the most sensible. That approach provides for temporal certainty. The time at which the application is made, in the sense that it is given, is readily capable of precise determination. If the applicant’s contention were to be preferred, circumstances concerning when an application was processed could lead to dissention or argument as to when an application was made. For instance, is it processed upon receipt and stamping by the registry staff or does processing occur at some later time when it is considered and assessed by registry staff? If that is the case at what point would the application then be deemed to have been made? This certainty is essential for both the applicant and respondent. There are time limits provided for the making of applications and accordingly it is essential for an applicant to be confident that any application is made within time. If the time for making an application were to be subject to considerations of assessment following the application being given to the registry, considerable uncertainty would attend the making of applications.
Likewise, for the respondent it is important that certainty be attached to the making of applications for reasons illustrated by this application. In many respects the importance of certainty has parallels with bankruptcy proceedings. In such proceedings, as in applications under consideration here, temporal certainty is critical to the determination of rights in a jurisdiction with far reaching consequences, and accordingly an approach to construction that achieves that outcome is to be preferred to an approach that is likely to engender uncertainty: Purden Pty Ltd v Registrar in Bankruptcy for the Bankruptcy District of the State of New South Wales and the Australian Capital Territory (1982) 64 FLR 306 at 310.
Finally, the construction contended for by the applicant would lead to a quasi-extension of time for the making of an application for review. It is well settled that the MRT has no power to extend the time for making an application for review: VEAN v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570.
It follows that I do not accept that the applicant has made out this ground of his application.
Conclusion
The applicant seeks judicial review of a decision made by the MRT to refuse to hear his application on the basis it concluded it had no jurisdiction as his application was not properly made pursuant to s.347. It was submitted for the applicant that the MRT fell into jurisdictional error when it decided for the purposes of s.347(3) and s.348 of the Act that the applicant was not physically present in the migration zone when his application for review was made by:
a)Misconstruing the expression “migration zone” by concluding that the migration zone does not include airspace;
b)Misconstruing s.347(3) by finding that the applicant must be in the migration zone at the moment the application is received by the MRT, rather than merely on the day the application is made; and
c)Misconstruing s.347(3) by holding that the phrase “when the application for review is made” means when the application is received at the MRT registry, rather than when it is received and processed by registry staff.
In my view,
a)The term “migration zone” does not include airspace above Australia’s land and sea;
b)An applicant must be physically present in the migration zone at the moment application for review is made; and
c)An application for review is made upon the fulfilment of the requirements provided for in s.347(1) of the Act.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Burnett
Associate:
Date: 14 November 2013
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