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LML5000 Australian Migration Law

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LML5000 Australian Migration Law

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LML5000 Australian Migration Law

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Course Code: LML5000
University: Victoria University

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Country: Australia

Question:
Read  the  case Muradzi  v  Minister  for  Immigration  and  Citizenship FCA  976 which is attached to this assignment.Examine  and  discuss the  reasons  of  Tracey  J  for  his  decision  and  the implications of this case in relation tovalid visa applications.Explain and discuss the principles of statutory interpretation adopted by Tracey J in reaching his conclusion.
Answer:
Introduction:

In the given case, the appellant wished to obtain a Skilled (Provisional) (Class VC) migration visa. The last date to apply for such visa was 15 March 2010 before the Department of Immigration but the only substantive visa she held expired that day. Further, the combine effect of Section 48(1) of the Migration Act and Regulation 2.12 required a non-citizen to hold substantive visa in order to apply for a Skilled Migration Visa. Due to certain technical issue she was unable to submit the application by means of internet as was required by the Regulation. However, she submitted the application twice on 15 March 2010 which came into notice of the Department officer on 16 March and was stamped as received on 16 March. Her application was rejected by the department as it was submitted a day after the stipulated date and that it was submitted by facsimile transmission. The Federal Magistrates Court dismissed the application with costs against which the appellant appealed before the appellant court.
The Federal Magistrate dismissed the application on the ground that the visa application of the appellant was invalid n and consequently the delegate of the Minister did not consider the application as per section 47 of the Act which states that the Minister is to consider a valid visa and in order to avert any doubt, the Minister is not to consider an invalid visa application. The Federal Magistrate held that the applicant did not apply for the visa in any of the prescribed methods of lodgments that is laid down under item 1229 (3) (a). The court further held that the legislative intention of the provision under 1229(3)(a) is clear when it states that if a visa application is not applied in any one of the ways stipulated under the provision, the application shall be not be treated as valid and shall not be considered by the delegate of the Minister.
Tracey. J relied its decision on the legislative provisions laid down under 1229(3) (a) of the Migration Regulation and the sections 45-47 of the Migration Act. The court applied the decision propounded in the Project Blue Sky where it was held that to determine the validity of an act that infringes any statutory provision, the court must concentrate on the purpose of the legislation that whether an act done in violation of any statutory provision should be considered as invalid or not. Further while determining the purpose, the court must consider the language and objective of such statutory provision.
The court interpreted the literal meaning of the statutory provision laid down under 1229 (3) (a) of the Regulations and the sections 45-47 of the Migration Act, 1958. The court held that Section 45-47 states that a non-citizen must apply for a visa for a particular class and section 46 stipulates the circumstances which shall render a visa application to be valid. One of such condition is the method in which a visa application should be made and section 47 restricts the Minister to consider only visas that are validly applied and not to consider any invalid visa application to avoid any doubt.
The intention of the Parliament is clear in these provisions which states that application for the visa must be made in a certain manner for it to be considered by the Minister as being a relevant decision-maker; it is a precondition for him to grant the visa. The Parliament has further clarified the validity of a visa application by stating that a visa application must be filled out in the Form 866 for it to be considered as valid and that no-compliance with this provision would invalidate a ministerial act. The court further supported its reasons for judgment by referring to Section 25 C of the Acts Interpretation Act 1901 (Cth) which states that if any statute prescribes a form, then unless any contrary intention appears, strict compliance with the form is not required and a substantial compliance is enough.
Now, the statutory requirement to fill up a particular Form 866 or a valid visa application and a precondition to the Ministerial power to grant the same implies the ‘contrary intention’ where strict compliance with the provision is mandatory. The court relied on the Note that precedes the Schedule (Classes of Visas) in the Migration Regulation which stipulates various ways in which a non-citizen may apply for a visa and any visa application that is not made in the manner specified in the Schedule shall be considered as invalid. Therefore, the judgment is based on the literal meaning of the statute which highlights a clear intention o the parliament which states that any application not made in Form 866 shall not be valid and not considered by the Minister.
Principles of Statutory Interpretation
In the given case, Tracey J has adopted the literal rule to interpret the statutory provisions of the Migration Act and Regulations, 1958. This rule enables the court to construe any statutory provision as per the legal intent of the Parliament which has passed the Act. As per the judgment delivered by Tracey, the words of the statute are unambiguous and precise, hence can be construed in their ordinary and natural sense.
It is evident from the fact that the legislature has explicitly stipulated under sections 45-47 of the Act and Regulation 2.07 under item 1229(3) (a) that a visa application shall be considered valid only if it is filled out in the Form 866 and the Minister is to consider and grant such visa as was considered by a Full Court in Fang v Minister for Immigration and Ethnic Affairs [1996] and in Onea v Minister for Immigration and Multicultural Affairs [1997]. The Legislature has clearly mentioned its intent in the statutory provision that any person failing to comply with the requirements of item 1229(3) (a) the visa application shall be rendered invalid and not be considered by the Minister. Further, it is also irrelevant whether the form was submitted on the due date or day after as the requirements of item 1229(3) were not complied with on either day.
Reference List
Fang v Minister for Immigration and Ethnic Affairs [1996] 64 FCR 145; (1996) 135 ALR 583
MacCormick, D. Neil, and Robert S. Summers. Interpreting statutes: a comparative study. Routledge, 2016.
Martin, Jacqueline. “Statutory Interpretation.” (2017).
Onea v Minister for Immigration and Multicultural Affairs [1997] FCA 1472; (1997) 80 FCR 254.
Peat, Daniel. “Ordinary Meaning: A Theory of the Most Fundamental Principle of Legal Interpretation. By Brian G. Slocum [Chicago: The University of Chicago Press, 2015. x+ 355 pp. Hardback US $70. ISBN 978-0-226-30485-4.].” The Cambridge Law Journal 75.3 (2016): 629-632.
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
The Migration Act 1958 (Cth).
The Migration Regulation 1958 (Cth).
Boucher, Anna, and Lucie Cerna. “Current policy trends in skilled immigration policy.” International Migration 52.3 (2014): 21-25.
Ferguson, Stephen, Carol Giuseppi, and Tourism Accommodation Australia. “Submission to the Department of Immigration & Border Protection.” (2017).
Knoch, Ute, Tim McNamara, and Cathie Elder. “Submission to the Australian Government Department of Immigration and Border Protection on the discussion paper ‘Strengthening the test for the Australian Citizenship’.” (2017).
Wright, Chris F. “Why do states adopt liberal immigration policies? The policymaking dynamics of skilled visa reform in Australia.” Journal of Ethnic and Migration Studies 41.2 (2015): 306-328.

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