Implications of Gillera vs Minister for Immigration on Australian Migration Law

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>