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Australian Migration Law

Read the case Muradzi v Minister for Immigration and Citizenship [2011] FCA 976 (26 August 2011).

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 (if any) in reaching his conclusion.

Sample Answer

Introduction
The suit was filed by Tatenda Muradzi against the Minister for Immigration and Citizenship because the application submitted by Tatenda for skilled migration visa, was rejected by the Department of Immigration. Due to technical issues, Tatenda was not able to file her application through the internet. She sends her application using facsimile to the visa department, instead of using other prescribed methods. The officers of the department did not notice her application till next day, making her application invalid. In the suit filed by Tatenda, the court decided that the method used for filing the application was wrong, making the application invalid. Tatenda filed an appeal against the order of the court, by giving section 25C of ‘Acts Interpretation Act’ as a defence. The court ruled that the method for filing the application was mandatory by the law, hence the application was invalid.  

Reason For The Outcome Of Case
Tatenda Muradzi was studying in Australia on a student visa from 2005. After completing her studies she applied for a skilled migration visa on 15th March 2010, which was the last date for filing the application. She tries to lodge the application through the internet with migration agent. Due to some technical issues, she was unable to lodge her application. The applicant then sends the form through facsimile, with the assistance of her agent. The application was sent to the department in Adelaide because that was the only office in Australia who processed the skilled migration visa form. The department directed the applicant on 25th March 2010 that her application is void.

There were two reasons provided by the department for rejecting the visa application of applicant: First, it was received on 16th March 2010, after the last date for submission that is on 15th March 2010. Second, it was sent through facsimile instead of the methods prescribed by the law. The provision for a non-citizen to apply for a visa is provided under section 45, 46 and 47 of the Migration Act, 1958. The item 1229(3) in Schedule I of Migration Regulations, 1994 provides the prescribed procedure for submitting an application. There are three methods prescribed in item 1229 for submitting an application, through the internet, through the prepaid post or by delivering through courier.

The applicant debated that the section 25C of ‘Acts Interpretation Act’ provides that ‘if a law prescribed a form to submit an application, then exact compliance with the form is not mandatory and partial compliance is adequate’. The applicant debated that the term “must” used in the item 1229(3) is treated as “may” because the term “must” is not obligatory instead it is optional. The appellant gives arguments of case Project Blue Sky and SS Constructions in support of her arguments.

The Hon. Justice Tracey J decided that the provision of section 25C of ‘Acts Interpretation Act’ does not apply in this case because this is not an ordinary case. The Parliament while enacting the law did not make the method for submitting the form as an optional feature; instead, it is the mandatory feature for validation of an application. The Hon. Justice Tracey J decided that using prescribed method for lodging is necessary for the validity of an application, as provided in Fang and Onea case.  

The decision was taken by the Hon. Justice Tracey J shows the importance of following the prescribed method, while submitting a visa application. The validity of an application depends on ‘if and only if’ the requirements prescribed by the law are fulfilled. The requirements for filing a visa application cannot partially comply; instead, they are necessary for a valid application.

Lawful Interpretation By Justice
The appellant appeal on the ground that the Hon. Justice Tracey J erred in finding the law in the case of Fang and Onea, since the facts of both cases applies equally to the method of filing the application for a visa. The appellant claimed that law does not prescribe, that it is mandatory to file an application for a visa, only through prescribed methods. The appellant had issues with the date prescribed by the department of migration for submission of her application. The applicant debated that the section 25C of ‘Acts Interpretation Act’ provides that ‘if a law prescribed a form to submit an application, then exact compliance with the form is not mandatory and partial compliance is adequate’.

The appellant argued that due to technical issues, submission of form through the internet was not possible. There was no time to use any other method of submission, prescribed by the law; therefore, the alternate method selected by appellant was the rational option. The appellant claim that it is the mistake of officers of migration department for not noticing her application, she sends through facsimile method.

On the appeal of Tatenda on the basis of Fang and Onea case, his Honour claimed that this is not an ordinary case. The principles of section 25C cannot apply in this case. The Hon. Justice interprets the motive, behind enacting the law by Parliament. The mandatory compliance of the prescribed methods, for submitting an application, is necessary for its validation. The act of partial compliance does not apply in this case. The strict compliance of prescribed methods is the main intention of the legislation, no other method for submission can apply in this case. The principles applied by Hon. Justice Tracey J for statutory interpretation is correct. The provision of section 25C of ‘Acts Interpretation Act’ does not apply in this case.

In the Project Blue Sky case, the Hon. Justice McHugh provided that the language, scope, and object of a law provide the purpose for enacting a prescribed method by Parliament. The purpose provides whether substantial compliance of prescribed method is necessary, or partial compliance is enough. In the case of SS Constructions, his Honour said that the parliament has provided that, no other form can do the job of a prescribed form. It proves the importance of prescribed method by the law.

The basis of statutory interpretation implemented by the Hon. Justice Tracey J for reaching their decision was that ‘Parliament has made a clear intention that prescribed method is the essential precondition, for an application to be considered as valid’. If a prescribed method has not been used by the applicant, then their application cannot be considered as valid. The appellant cannot blame the officers of migration department because she did not use the prescribed method provided by the law.

Conclusion
The right interpretation of a law is significantly important for the decision of a case. The Justice has to analyse the law carefully before giving their ruling in a particular case. The reason for the decision taken by Hon. Justice Tracey J was the ‘purpose’ decided by parliament for the act. The Parliament has clear motive while enacting the law that prescribed method are the essential precondition, for an application to be considered as valid. Therefore, the principle of section 25C of ‘Acts Interpretation Act’ cannot apply in this particular case. This case implemented the importance of following the prescribed method, for submitting a valid visa application.

Bibliography
Acts Interpretation Act [1901] (Cth) 25C; AULegAct 2

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

Muradzi v Minister for Immigration and Citizenship [2011] FCA 976

Muradzi v Minister for Immigration and Citizenship [2011] FMCA 342

Onea, Raveca v Minister for Immigration & Multicultural Affairs [1997] FCA 1472; 80 FCR 254

Project Blue Sky Inc. & Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; 72 ALJR 841; 153 ALR 490

SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1111] VSC 3652; [1964] VR 229; 10 LGRA 210

Wu Yu Fang & 117 Ors v The Minister for Immigration and Ethnic Affairs & Anor [1996] FCA 106; 64 FCR 245

 

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