G1083 Migration Law and Practice- Muradzi v Minister

Answer

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

Brief Fact of the Case:

The appellant in the case has applied for a Skilled (provisional) (ClassVC) migration visa. The Migration Act and regulation of Australia deals with the procedure to make application regarding visa. The appellant wants to renew visa application but the renewal of visa application within 15 March 2010 as per the rules of the Migration Regulations or else the visa will expire. The appellant has made an application on the same day but the mode of application was not correct as per provisions of the Migration Regulation. The concerned office received the application of the appellant on the next day of the deadline and said that even if the appellant has made the application for Visa the procedure was not correct. Therefore, the application stands rejected. The appellant sought for a judicial review and filed an appeal before the Federal Court of Australia on the decision of the Officer of the Immigration Department.

Reasons of the decision:

The Judge dismissed the appeal on the following grounds. Firstly, the appellant has not made the application in the prescribed procedure as per the item 1229(3)(a) of the Schedule 1 of the Migration Regulations 1994 and so the minister had no obligation to consider the appeal. As per item 1229(3)(a) it has been said that the application must be made through internet or by posting the letter to the post box address or through courier service. The appellant has not taken the alternatives mentioned in the schedule and has sent the application through electronic transmission which as per the act has no validity. As per the provisions of the regulations, the appellant needs to file application for visa in the prescribed procedure and within the limitation period set by the register office. The appellant has failed to comply with the provisions of the regulation i.e. item 1229(3)(a) and has not applied for visa in the prescribed procedure and thus the visa application which reached the office cannot be consider as an application under the Migration Regulation. Judge Tracey reached this decision by holding that the Court should approach the item 1229 (3) (a)’ construction in similar manner as it has approached provisions equivalent to the sub items (I) (dealing with prescribed forms) and (2) (dealing with fees). Secondly, the judge considering the provisions in the Migration Act states that the appellant has not complied with the provisions of the Act under Sec. 45(2) and (3). Accordingly, the Judge held that the decision fell under the “other matters” that Regulation 2.07 (I) requires to be satisfied for the visa application to be valid. Judge Tracey held that all the provisions relating to visa application were integral part of the same prescriptive legislative scheme. All the requirements of the scheme, therefore, must be met for a valid application to be made. The Judge subsequently agreed with High Court Judges that the Minister could not consider the purported application. Moreover, the court states that whether it was the purpose of the legislation that an act done which breach or violate the provision of the legislation should be considered to be invalid depends on the language and the scope and object of the legislation. Therefore, as per Tracey J, the appellant has breached the provisions of the Acts and regulations of Migration Department and thus the application of the Visa made by the appellant is invalid.

Implication of this case in relation to Valid Visa Application:

The decision of the court in dismissing the appellant’s application for Visa and asks the ministry not to entertain the application for the visa where the provisions of the Act and regulations. The case set a precedent and clarity on what really constitute the valid visa application. This is because gave the right and landmark construction of the statute and what the applicants seeking to make valid visa application need to do to have their applications considered by the Minister. It also vindicated the Minister and set out the role of the Minister in valid visa application. The ruling also helped emphasized the need for the applicants of a valid visa to strictly follow the laid down rules and comply with all the requirements without looking for alternatives that are not grounded in law.

Principle of Statutory Interpretation:

Judge Tracey adopted the literal rule of the construction based on the principles of the scheme of Act and object of Act/intention of parliament as the principles. The Judge understood the need to consider the language of the relevant provision alongside the scope as well as object of the entire statute to arrive at the correct statutory interpretation to guide his arrival at the above conclusion in the appeal. The literal rule principle remains the cardinal rule of interpretation of the statutes where the Judge examines the principle of parliament intention/object of Act and the scheme of the Act. The Judge gave the word their statutory, literal, and grammatical meaning to establish the legislature intention.

The judge has also considered Section 25C of the Acts Interpretation Act 1901 in dealing with the appellants’ case. The provision states that when a form is prescribed under the Act then without any contrary intention, strict compliance is not necessary but substantial compliance is sufficient. For instance, where a statutory provision requires an application to be made to constitute a valid action under the legislation and if the applicant does not comply to the provision of the legislation then in such matter the court may interpret as invalid action of the applicant.

In the case of CF Hunter Resources Ltd v Melville, Dawson J states that when a form of application is provided under a legislation and the provision states that the applicant must make a substantial compliance with the Act. The Judge used the premise that the legislature utilizes the ordinary language of the citizen and hence gave effect to each and every word in the statute and interpreted them in their context. This is why Judge Tracey held that to determine the question of statute’s purpose, he had to consider the language of relevant provision alongside the scope besides the entire statute. This is why Judge Tracey adopted the views previously expressed by New South Wales Court of Appeal in Tasker v Fullwood relating to the visa application scheme prescribed by Migration Act and Regulations. 

Conclusion:

The judge thus had no doubt as to the legislature’s intention, but that which was intended was never said in the statute. Thus he had the view that the legislative intent had to appear from the words actually utilized, and never from what was intended to be said by the legislature, but they failed to say. Judge Tracey was aware that he had no discretion to go beyond words used in the statute itself thus only viewed himself as the interpreter of the parliament’s will. Therefore, Judge Tracey knew that he had no basis speculating about what legislature actually intended but to interpret the law by looking at the statute itself as well as attempting to formulate the intended meaning by legislature on this basis.

Bibliography:

Administrative Decision-Making In Australian Migration Law - ANU (2017) Press-files.anu.edu.au

Acts Interpretation Act 1901 (2017) Austlii.edu.au

Acts Interpretation Act 1901 - SECT 25Ccompliance With Forms (2017) Austlii.edu.au

(2017) https://www.lexisnexis.com.au/laying-down-the-law/downloads/chapter_13.pdf

(2017) https://www.austlii.edu.au/au/journals/UQLawJl/1953/2.pdf

Hunter Resources Ltd V Melville (2017) Eresources.hcourt.gov.au

LA304 - Topic 3 - Principles Relating To The Interpretation Of Statutes Andconstitutions (2017) Vanuatu.usp.ac.fj

Migration Regulations 1994 - Schedule 1Classes Of Visa (2017) Austlii.edu.au

Project Blue Sky Inc V Australian Broadcasting Authority [1998] HCA 28 | Office Of State Revenue (2017)