LML6002 Australian Migration Law

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Question:

You can read Muradzi [2011] FCA 976 (26 Aug 2011).

Discuss Tracey J’s decision as well as the implications of the case for invalid visa applications.

Discuss the principles of statutory Interpretation used by Tracey (if any) in arriving at his conclusion.

Answer:

Introduction

Tatenda Muradzi sued the Minister for Immigration and Citizenship for refusing to grant Tatenda a skilled migration visa.

Tatenda could not file her application via the internet due to technical problems.

Tatenda sends her visa application by facsimile, rather than using the other prescribed methods.

The department officers did not receive her application until the next day, rendering her application invalid.

Tatenda brought a lawsuit against Tatenda. She argued that Tatenda’s application filing method was invalid.

Tatenda appealed the court’s decision by citing section 25C from the Acts Interpretation Act as a defense.

The court ruled the filing method was mandatory under the law, and the application was therefore invalid.

Reasons for the Outcome of Case

Tatenda Muradzi was a student in Australia from 2005.

After finishing her studies, she applied for a skilled visa to migrate to Australia on the 15th of March 2010. This was the last date for filing an application.

She tried to file her application via the internet with a migration agent.

She was unable lodge her application due to technical problems.

The applicant then sends her application via facsimile with the assistance of an agent.

Because Adelaide was the only place in Australia that could process the skilled migration visa application, the applicant sent the application to Adelaide.

The department advised the applicant that her application was null on 25 March 2010.

The department gave two reasons for rejecting the applicant’s visa request. First, it was received 16 March 2010, the date of submission for the application had expired on 15 March 2010.

The second reason was that it was sent by facsimile, rather than using the legal methods.

Section 45, 46 and 47, respectively, provide the means for a non-citizen applicant to apply for a visa.

For the submission of an application, please refer to Schedule I of Migration Regulations (94).

You can submit your application through the internet via the prepaid mail or by delivering it through courier.

The applicant disagreed with section 25C, “Acts Interpretation Act”, which states that “if a statute prescribed a form for submitting an application, then exact conformance is not mandatory and only partial compliance is acceptable”.

The applicant claimed that the word “must”, as used in item 1229(3) of the Acts Interpretation Act, should be referred to as “may”. This is because “must” isn’t obligatory but is instead optional.

To support her arguments, the appellant cites case Project Blue Sky (SS Constructions)

The Hon.

Justice Tracey J declared that section 25C (Acts Interpretation Act) does not apply to this case as it is not an ordinary case.

The submission method was not an optional feature of the law that was passed by the Parliament. It is now a mandatory requirement for the validation of an application.

Hon.

Justice Tracey J determined that the filing of a prescribed application is required for its validity, as in Fang & Onea.

The Hon.

Justice Tracey J made the decision.

A visa application’s validity is determined by whether and only if the law’s requirements are met.

These requirements are essential for a valid visa application. They cannot be partially met.

Justice Interprets Lawful

The Hon.

Justice Tracey J was wrong in finding the law applicable to Fang and Onea. Both cases are equally applicable to the filing of visa applications.

The appellant claimed the law does not require that an applicant for a visa be submitted through prescribed means.

The date that the department of immigration required for her application submission was not correct, the appellant said.

The applicant disagreed with section 25C of the Acts Interpretation Act, which states that ‘if a statute prescribes a form for submission of an application, then exact conformance is not mandatory and partial conformity is sufficient’.

The appellant claimed that submission via the internet was impossible due to technical difficulties.

It was impossible to submit the form using any other method than the one prescribed by law. Therefore, appellant chose the rational alternative.

The appellant claimed that the officers of the migration department did not notice her application and she sent it by facsimile.

His Honour argued that this was not an ordinary case when Tatenda appealed on the basis Fang and Onea.

This case is not one that falls within the scope of section 25C.

The Hon.

Justice interprets the motivation behind the Parliamentary enactment of the law.

It is essential that the application be submitted in accordance with the prescribed procedures.

This case does not allow for partial compliance.

This legislation’s main intent is to require strict compliance with the prescribed methods.

Hon.

Justice Tracey J has the right principles for statutory interpretation.

This case does not involve the application of section 25C to the Acts Interpretation Act.

In Project Blue Sky, the Hon.

Justice McHugh explained that the language and scope of a law are what provide the purpose for Parliament to enact a prescribed method.

The purpose determines whether the prescribed method must be followed in full or in part.

His Honour stated in the case SS Constructions that the parliament had made clear that no other form would be able to do the job of a prescribed one.

It is clear that the law requires that prescribed methods be used.

The Hon.

Justice Tracey J made their decision based on the Hon.

An applicant who does not use the prescribed method will be denied their application.

The officers at the immigration department cannot be blamed by the appellant for not using the prescribed method.

Conclusion

A case’s decision is greatly affected by how a law has been interpreted.

The Justice must thoroughly analyse the law before they make a ruling in a specific case.

The Hon.

Justice Tracey J was responsible for the ‘purpose’ of the act as determined by parliament.

While enacting the law, Parliament had a clear motivation. Prescribed method are essential preconditions for an application being considered valid.

This case does not allow the application of section 25C (Acts Interpretation Act) in its entirety.

This case demonstrated the importance to follow the prescribed process for submitting a valid Visa Application.

Acts Interpretation Act [1901] – Cth) 25C, AULegAct 2.

Migration Act [1958](Cth) 45; AULegAct (62).

Muradzi and Minister for Immigration and Citizenship (2011) FCA 976

Muradzi v Minister of Immigration and Citizenship [2011] FMCA 332.

Onea, Raveca v Minister For Immigration & Multicultural Affairs [1997] FCA1472; 80 FCCR 254

Project Blue Sky Inc. & Australian Broadcasting Authority [1998] HCA28; 194 CLR355; 72 ALR 841; 153 ALJR 490

Ventura Motors Pty Ltd v SS Constructions Pty Ltd

Wu Yu Fang & 117 Ors v. the Minister for Immigration and Ethnic Affairs & Anor (1996) FCA 106; 64 FCR 245.

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