Implications of Gillera vs Minister for Immigration on Australian Migration Law

This report covers the implications of the decision given in the case of Gillera vs Minister for Immigration, Citizenship, Migrant Services and Multicultural affairs on Australian Migration Law. It also covers the principles of statutory interpretation with respect to the case.

Practitioner Legal
Skills for Australian
Migration Law

Table of Contents
INTRODUCTION ..........................................................................................................................2
TASK ..............................................................................................................................................2
Implications of the decision of the case: ....................................................................................2
Principles of Statutory Interpretation:.........................................................................................3
Principles of statutory interpretation that were employed by the judge in arriving
at his decision:............................................................................................................................4
CONCLUSION ...............................................................................................................................4
REFERENCES................................................................................................................................6
INTRODUCTION
Migration has played a major role in the development of the Australian nation. In order to
regulate and control the flow of people migrating to Australia, its government has formed
various laws and policies. The Australia Migration Act of 1958 states that under its Federal law
with respect to the citizens those who do not possess a valid visa can be detained but the only
exceptions in it can be the circumstances that relate to health, security or a basic information visa
claim because only these can form a part of legitimate immigration controls1. This report will
cover the implication of the decision given in the case of Gillera vs Minister for Immigration,
1 Oberoi, Pia and Eleanor Taylor-Nicholson, "The Enemy At The Gates: International
Borders, Migration And Human Rights" (2013) 2(3) Laws

Citizenship, Migrant services and Multicultural affairs 2021. It shall also cover the principles of
statutory interpretation with respect to the case.
TASK
Implications of the decision of the case:
The case of Gillera vs Minister for Immigration, Citizenship, Migrant Services and
Multicultural affairs is a clear case that focuses on the Migration Laws of Australia. The case
involves several appeals where the first appeal was from the Federal Circuit Court wherein the
appellant in the case purported that the application for the withdrawal of the visa was not valid.
While hearing this appeal it was found out by the Federal Circuit court that it while deciding the
matter of the case did not have the scope and jurisdiction to determine the application and in all
the scenario, it was found that the withdrawal by the proper procedure was valid but the question
rose regarding the jurisdiction of the Federal Circuit Court under the said Migration Act of the
year 1958 to determine the validity of the application. It also considered the point stating whether
the withdrawal of the visa application by the appellant was a migration decision or not2. As well
as consideration of the fact whether the visa application was a valid withdrawal process. After
looking into all the matters of the case it decided to dismiss the appeal made by the appellant. So
the appeal was then dismissed. The appellant was also ordered by the court to pay the respondent
all the costs that were agreed by them.
To have the decision in favour the points that were argued by the appellant before the
Primary Judge in the Federal Court of Justice were she did not withdraw her application because
it was not her intention to withdraw the application as she did not understand the effect that the
withdrawal notice has or was mistaken about it. She also argued stating that a third party misled
her into the withdrawal notice3.
The implications of the decision given in the case were that the Migration Act was clearly
applicable to the scenario due to the question of a valid withdrawal of visa. It has been provided
by the Sec 47 of the Migration Act that the Minister involved must consider a valid application
2 Sotousek, Julia, "DAUVERGNE, CATHERINE, HUMANITARIANISM, IDENTITY AND
NATION: MIGRATION LAWS IN CANADA AND AUSTRALIA, VANCOUVER, UBC PRESS,
2005" (2006) 19(2) Revue québécoise de droit international
3 "Migration Act 1958", Legislation.Gov.Au (Webpage, 2022)
<https://www.legislation.gov.au/Details/C2018C00337>

for Visa and that application continues till the date it is withdrawn. And with respect to Sec 49 it
was stated that a visa applicant has the power to withdraw a visa application by giving a written
notice to the minister regarding the same.
The judges noted that the sections which are applied to the case have a clear definition
and intention was of withdrawal.
Principles of Statutory Interpretation:
Interpretation of statutes is basically a process by which the court of justice or the
judiciary try to define the meaning of the legislations in which they have been expressed.
Interpretation is essential because all laws are difficult to understand and they are thus not free
from any kind of ambiguity which makes it important to convert them into simple meanings and
judgements4. The primary aim of interpretation is to see the intention behind the expression of
words.
The Principles of Interpretation of statutes are the Literal Rule, Golden Rule and the
Mischief Rule which emerged over time in Australia. The courts are expected to use these rules
only when the statutes do not have a simple meaning and their ordinary meaning creates any
absurd or repugnant situation when they are interpreted to give decisions. In context of the
Literal Rule it states that the words of the statute must be given their ordinary and natural
meaning. It basically makes an assumption that there is only one interpretation of words that are
written in the statute. With respect to the Golden Rule it has the power to only modify the words
of a statute to only a minimum extent so that all the necessary draft errors that are there can be
addressed. Whereas with respect to the Mischief Rule it allowed for the mischief consideration
only when it was intended to be remedied in the process but only in the cases or scenarios when
that mischief was clearly evident after having the thorough read of the whole Act or legislation.
A famous legal scholar determined four options into the Statutory interpretation by the
courts where they can treat the statutes as sources of law which are superior by making an
application of their rules fully, they can also treat statutes as the judge made laws and making an
application of them by connecting them to other case laws or judicial decisions, they can also
give the statutes only a direct effect by favouring their broad interpretation or they can have a
strict or narrower interpretation.
4 Stubbs, Matthew T, "Arbitrary Detention In Australia: Detention Of Unlawful Non-
Citizens Under The Migration Act 1958 (Cth)" (2006) 25(1) The Australian Year Book
of International Law Online

Principles of statutory interpretation that were employed by the judge in arriving
at his decision:
The principle that were used by the judges in the given case were the Literal Rule of
interpretation wherein the words of the statute or in this case the Migration law were employed
and interpreted as they are written in the statute5. So by applying this principle they tried to bring
out the primary intention of the Parliament behind the formation of the statute. In this the judges
in the courts gave the decisions by simply looking into the exact words of the Migration Act and
then applying those sections of the Act as they are written in the statute by giving them their
ordinary and natural meaning.
CONCLUSION
It can be concluded from this act that the Migration Law of Australia is an essential piece
of legislation that helps to determine the conditions of immigration. It lays down the correct
procedure for obtaining a visa and in what manner can the application for withdrawal be made.
The given Case relates to the Migration law and the questions which arose in the case were of the
valid application for the withdrawal of the visa and regarding the Jurisdiction of the Federal
Circuit Court. The courts in the case dismissed the appeal of the appellant who appealed stating
that the withdrawal of visa was not intended and thus was invalid for her. The court upheld the
validity of the visa withdrawal application.
5 Amir, Mutaman, "PRINCIPLES OF STATUTORY INTERPRETATION" [2021] SSRN
Electronic Journal

REFERENCES
Oberoi, Pia and Eleanor Taylor-Nicholson, "The Enemy At The Gates: International Borders,
Migration And Human Rights" (2013) 2(3) Laws
Sotousek, Julia, "DAUVERGNE, CATHERINE, HUMANITARIANISM, IDENTITY AND NATION:
MIGRATION LAWS IN CANADA AND AUSTRALIA, VANCOUVER, UBC PRESS, 2005"
(2006) 19(2) Revue québécoise de droit international
"Migration Act 1958", Legislation.Gov.Au (Webpage, 2022)
<https://www.legislation.gov.au/Details/C2018C00337>
Stubbs, Matthew T, "Arbitrary Detention In Australia: Detention Of Unlawful Non-Citizens
Under The Migration Act 1958 (Cth)" (2006) 25(1) The Australian Year Book of
International Law Online
Amir, Mutaman, "PRINCIPLES OF STATUTORY INTERPRETATION" [2021] SSRN Electronic
Journal
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