You might think the phrase “interesting surcharge purchaser duty case” is oxymoronic. However, that’s only because I haven’t told you the story about Mr Gao, who claimed he was entitled to a refund of that duty on the basis that he was no longer a foreign person. For him not to be a foreign person he must have “actually been in Australia during 200 or more days in the 12 months...” prior to the transaction. The parties were in dispute about whether he had been in Australia for 199 or 201 days because, as the Tribunal put it:

[28] The narrow question here is whether a person sitting in a commercial aircraft cruising at an altitude of several kilometres above either (a) Australian land or (b) Australian territorial sea, is ‘in Australia’ for the purposes of s 5(1)(a) of the [Foreign Acquisitions and Takeovers] Act.”

Argument traversed all sorts of issues under the Migration Act, the Civil Aviation Act, the Chicago Convention, the Acts Interpretation Act and even the Macquarie dictionary. However, very pragmatically the Member ultimately found:

[56] Now, for what it is worth, I agree with Mr Gao’s submission that ‘Australia’, when used in s 5(1)(a), is used in a geographical sense. But how the resultant statutory definition bears on his case is unclear,…. and then….

[59] In my view, ‘actually … in Australia’ captures land-based presence in Australia, and also presumably sea-based (in territorial waters) presence in Australia, but it does not capture presence in Australian airspace. Therefore, if, on a particular day, you are in Australian airspace but you do not land in Australia or set down in Australian territorial waters on that day, then you cannot be said to have been ‘actually in Australia’ on that day. Otherwise, it would be the case that the passengers on a hypothetical flight from Jakarta to Auckland, and flying hypothetically over the Australian land mass, would be ‘actually in Australia’ for all the time the aircraft is in Australian airspace. That does not accord with the ordinary meaning of the words ‘actually … in Australia’ in s 5(1)(a) of the FAT Act.

This case, Gao v Chief Commissioner of State Revenue [2020] NSWCATAD 216, pushed some of my more serious buttons about reckoning of statutory time limits. If an Act provides for, and you have calculated a date for the last (or first) day for doing something, allow yourself a few days margin for error. The issue of time miscalculation triggers so many unnecessary jurisdictional problems.  Undoubtedly a couple of nights stay even in a 5 star hotel would have cost Mr Gao substantially less than this case!

Shout out to David Wang of Hyde Park Legal for bringing the case to my attention.

Creative commons acknowledgment for the photograph.


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