Question:
Answer:
Facts of the Case
The appellant in this case wanted to obtain a migration visa for Skilled (Provisional)
(Class VC). The Migration Act 1958 (hereinafter referred to as the
“Act”
) and the Regulations
effected that the application made by her were required to be received no later than 15 March
2010 by the Department of Immigration (
“the Department”
). This was done since the
substantive visa which was held by her expired on the very day. Regulations 2.12 along with
section 48(1) of the Act provide that a non-citizen who does not hold a substantive would not be
allowed to apply for a Skilled Migration Visa. It was required by the Regulations that the
application for the visa was to be lodged via the means of the internet, couriered delivery or
prepaid post.
On the 15th of March though the applicant attempted to lodge her application via internet
due to unexpected technical failure she was unable to do so. The she attempted to lodge her
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application by to an office of the Department of Adelaide since it was the office for processing
application of general skilled migration. She made two transmissions however they do not seem
to have come to the attention of the Department until the next morning.
Ground of Appeal
The appeal was made on the below mentioned grounds:
The issue is the preferred or correct construction of Item 1229 sub item 3(a) in Schedule I
of the Migration Regulation.
The case of Fang and Onea would not apply to the method of lodgment.
The conclusion of not being able to lodge the application via internet was an intended
inconvenience, was an err of law.
Judgment
Tracey J. referred to the cases of
Onea, Raveca v Minister for Immigration & Multicultural
Affairs
1
wherein Finkelsteing J had applied the principle of
Wu Yu Fang & 117 Ors v The
Minister for Immigration and Ethnic Affairs & Ano
r
2
. His honor in this case stated that:
“In ordinary circumstances it would not be unusual for a court to hold,
conformably with either s 25C of the Acts Interpretation Act or the
applicable principles of statutory construction, that a failure to make an
1
Onea, Raveca v Minister for Immigration & Multicultural Affairs
[1997] FCA 1472.
2
Wu Yu Fang & 117 Ors v The Minister for Immigration and Ethnic Affairs & Anor
[1996] FCA 106 (28
February 1996).
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application in accordance with a form that is prescribed for that purpose
will not render that application a nullity.”
3
The same view was required to be be taken by the Court for the
construction of item 1229(3)(a) as the approach has been taken for the
provision equivalent to sub-items (1) which deals with the forms that are
prescribed and (2) that deals with the amount of fees.
As has been already noted in the case of Onea and Fang in which provisions
were considered equivalent to item 1229(1).
The court has in other cases in which the defect in the application process
was that the payment of fees had not been done a similar approach was
taken by the court (
Minister for Immigration and Multicultural Affairs v
Hayman
(1999) (per Finkelstein J)
4
;
Minister for Immigration and
Multicultural Affairs v Sharma
(1999) (per Weinberg J)
5
.)
It was thus opined in the case that all the provisions form the part of the
same scheme of prescriptive legislative scheme. If any of the scheme’s
requirement are not met the consequence would be that there has not been
any valid application which had made and thus there would be a prevention
3
John Vrachnas,
Migration And Refugee Law
(Cambridge University Press, 2017).
4
Minister for Immigration and Multicultural Affairs v Hayman
[1999] 90 FCR 120 at 12.
5
Minister for Immigration and Multicultural Affairs v Sharma
[1999] 90 FCR 513 at 527.
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on the Minister to consider such purported application as a valid
application.
Thus there was a failure on the part of the appellant to comply with the
requirement of the item 1229(3)(a)
6
meaning thereby that there was no
valid application that had been made by her and thus there was no binding
on the delegate of the Minister to consider such application. The decision of
the Federal Magistrate was upheld by Tracey J.
Implication of the Case
The implication of the case on Visa application would be that for a visa
application to be a valid visa all the requirements under item 1229(3)(a) are
to be complied with. Even if there is a slight variation from the prescribed
method of application such an application would not be considered to be a
valid visa application and the Minister’s delegate would not be bound to
consider such an application. This decision further establishes that the
legislation has to be complied with strictly for there to be valid visa
application as deviation from such a legislation can lead to non-compliance
which can further lead to the visa application not to be considered. Thus
care needs to be taken at the time of visa application that all the
requirements are followed which includes applying for the visa in the same
manner as had been mentioned, this cannot be considered as anything
separate from the requirements of a valid visa application.
6
Migration Regulations
1994
.
Title
Rule of Interpretation
In the said case Tracy J. used the literal rule of interpretation. This rule is
also known as the strict rule of interpretation. It is explained by the rule
that law is rather than explaining what is meant by the law. Since the said
case involved interpretation of a statue this is the rule that is generally
applied by the court first before the application of any other rules.
7
The
words of the statute under the literal rule are given their ordinary, plain and
literal meaning.
8
The application of the literal requires that the law be read
word by word and that there should not be any diversion from its actual
meaning.
9
This is what was done by Tracy J. in the given case, the
requirements of the item for a valid visa application were read word by
word and any deviation from the requirement was opined to make the
application an invalid application.
Conclusion
Conclusively it can be observed that Tracy J. provided with a strict
interpretation of the legislation thereby leading to the opinion that a valid
visa application if all the requirements of the visa are complied. In case of
non-compliance the application would not be considered to be a valid
7
D. C Pearce and R. S Geddes,
Statutory Interpretation In Australia
(LexisNexis Butterworths, 2011).
8
Colin Manchester,
Exploring The Law
(Sweet & Maxwell, 2000).
9
Michelle Sanson,
Statutory Interpretation
(Oxford University Press, 2012).
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application and there shall not be any obligation on the ministry to consider
such an application.
Bibliography
Manchester, Colin,
Exploring The Law
(Sweet & Maxwell, 2000)
Pearce, D. C and R. S Geddes,
Statutory Interpretation In Australia
(LexisNexis Butterworths, 2011)
Sanson, Michelle,
Statutory Interpretation
(Oxford University Press,
2012)
Minister for Immigration and Multicultural Affairs v Hayman
[1999] 90
FCR 120 at 12
Minister for Immigration and Multicultural Affairs v Sharma
[1999] 90
FCR 513 at 527
Onea, Raveca v Minister for Immigration & Multicultural Affairs
[1997]
FCA 1472
Vrachnas, John, Migration And Refugee Law (Cambridge University
Press, 2017)
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Wu Yu Fang & 117 Ors v The Minister for Immigration and Ethnic
Affairs & Anor
[1996] FCA 106 (28 February 1996)
Migration Regulations
1994
