Gajjar v Minister for Immigration

Link copied
Case Copied 43 min read

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)
Migration Regulations 1994 (Cth), Reg.4.10
Seas and Submerged Lands Act 1973 (Cth), ss.3, 6

Associated Beauty Aids Pty Ltd v Commissioner of Taxation (Cth) (1965) 113 CLR 662
Braganza v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 364
Commissioner for Railways v Valuer-General [1974] AC 328
Hong v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 468
Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99
LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

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
Re Jackson and Minister for Immigration and Citizenship (2011) 128 ALD 355
Re Lehrer and the Real Property Act 1900 [1960] NSWR 570

Sadiqi v Commonwealth (No 2) (2009) 181 FCR 1

SZJDS v Minister for Immigration and Citizenship (2012) 201 FCR 1
Tabet v Minister for Immigration & Multicultural Affairs (1997) 75 FCR 446
VEAN v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570
Wielgus v Removal Review Authority [1994] 1 NZLR 73

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

  1. 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.

  2. The application filed 21 September 2012 be dismissed

  3. 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
CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Gajjar v Minister for Immigration and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2013] FCCA 1859
Decision Date

CaseChat Overview and Summary

This matter concerned an application for judicial review before Judge Burnett of the Federal Circuit Court of Australia. The applicant, Mr Gajjar, sought to quash a decision of the Migration Review Tribunal (MRT) and compel the MRT to determine his application according to law. The central dispute revolved around whether Mr Gajjar was physically present within the migration zone at the time he lodged his application for review with the MRT.

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

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

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.