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May 02, 2023

Answer:

Introduction

In the case of Muradzi v Minister for Immigration and Citizenship [2011] FCA 976 (26 August 2011), the applicant had made an appeal against the decision given by the Federal Magistrates Court, in the case of Muradzi v Minister for Immigration [2011] FMCA 342 (Jade, 2011a). In the previous case, the application of Tatenda Muradzi had been dismissed with costs (Jade, 2011b). In the following case, the decision given by Tracey J, when the matter was brought before the Federal Court of Australia has been explained.

Decision Of Tracey J

While giving the decision in this case, Tracey J had to decide upon the question of validity for the manner in which the applicant had made the visa application. The facts of this case were never disputed by the parties. After carrying out the statutory interpretations, it was decided by Tracey J that the visa application could have been validly made only when it was submitted through Form 866, which is the standard form for such applications. And as a valid visa application was not made in this case, the Minister was statutorily bound to not consider it (Australasian Legal Information Institute, 2011).

The case was related to the visa application form, which is required through the provisions of the Migration Regulations, 1994 (Cth) (Federal Register of Legislation, 2017a). Once the provisions of these regulations were red, it was clarified that the visa application could be considered only when it was made in Form 866. The Minister had been restricted from considering any such application, which was not in the standard form. This had been supported through the schedule given in these regulations. There had been no vacant space under the statue for complying with the provisions in a different manner or for constructive application when there was a failure in using the standard form. The emphasis has been made upon the use of Form 866 through the legislature. This was deemed as being a substance requirement instead of being a procedural one. Due to the failure of the applicant in fulfilling the conditions contained under item 1229(3)(a) of these regulations, the Minister could not consider the application. And so, the application was dismissed with costs (Australasian Legal Information Institute, 2011).

Statutory Interpretation

The principle of statutory interpretation was used in this case to make a decision on the alternative mode of sending visa application’s validity. For deciding on the principle of statutory construction, reliance was made on the case of Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. The pertinent provisions’ language, in addition to the scope and object of the statute was considered. A reference was also made to the case of Fang v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 to decide upon the statue and regulations for the visa application scheme (Australasian Legal Information Institute, 2011).  

The court also relied upon the provisions of the Migration Act, 1958 (Cth), in particular section 45, 46 and 47. If the wordings of section 45(1) were carefully analyzed, it would be clear that the form was important for making the application for visa. Some conditions have been covered under section 46, and section 45(2) also relies upon the regulation 207. Section 47(1) puts an obligation over the Minister to consider the visa application only when the same has been made in valid form. And section 47(3) restricts the consideration of an invalid visa application (Federal Register of Legislation, 2017b). The Parliament could not have made it clearer that an invalid visa application could not be accepted. Hence, Form 866 was crucial for valid visa application and this could not be complied in a partial manner. The case of Fang further clarifies that never in the statutory provisions was stated that these are optional compliances; hence, this had to be undertaken mandatorily (Australasian Legal Information Institute, 2011).

The court also relied upon Acts Interpretation Act, 1901 (Cth), specifically section 25C. As per this section, until the opposite can be established, the forms prescribed under the act have to be followed compulsorily (Federal Register of Legislation, 2017c). This section emphasizes upon the visa application to be made in Form 866. And where this form is not used, the application cannot be held as valid, even when the other means had been exhausted by the plaintiff and the application cannot be considered owing to the absence of the required process (Australasian Legal Information Institute, 2011).

A reference was also made to the case of Onea v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 254. This was read with the case of Fang and the section 45 and 46 of the Migration Act. A combined reading of these clarified that the visa application could only be made validly through Form 866 owing to the emphasis and intention of the Parliament. Hence, the statutory interpretation clarified that unless the visa application was made in Form 866, it could not be accepted and so, the ruling given by the Federal Magistrates Court was correct (Australasian Legal Information Institute, 2011).

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