Thursday, December 12, 2019

Statutory Interpretation Adopted by Tracey J-Myassignmenthelp

Questions: 1.Examine and discuss the reasons of Tracey J for his decision and the implications of this case in relation to valid visa applications. 2.Explain and discuss the principles of statutory interpretation adopted by Tracey J (if any) in reaching his conclusion. Answers: 1.The case was related to the appropriate construction of the provisions of the Migration Act 1958 along with the Migration regulations 1994. In this case a skilled visa Class VC had been applied for by the appellant before the Department if immigration. According to provisions of MA and the MR the application had to be made within 15th march 2010. The reasons behind this were that the only substantive visa which she had was subjected to expire on the particular day. According to Section 48(1) of the MA and the regulations 2.12 of the MR a non citizen was not allowed to make an application for a skilled visa if they did not held any substantive visa. According to the regulations the application could be made by through couriered delivery, prepaid post and the internet[1]. The appellant was not able to transit the application even after visiting the department of migration because of some technical issues. A further attempt had been made by the appellant to make the application. The first attempt was stamped at 5:01 15th march and 5:24 15th march respectively. The officer missed out on such electronic transaction and a manual stamp dated 16th mach was made the next morning. It was reported to the appellant that her application is not valid on 10th April as her application was a day late and the application was made by facsimile transaction which was not allowed by the MR. the federal court upheld the decision of the minister in this case and the five separate grounds of review directly and indirectly turned towards the construction of item 1229(3) of the MR[2]. the finding of the court was based on the fact that any of the prescribed methods had not been used by the appeal to file the applications as provided in the MR. giving plain meaning to the text of the legislation it had been found by the federal magistrate that the visa application was not according to the rules of the legislations and the ministers had the right to reject it. An appeal had been made by the person against the decision of the federal court on five grounds. Firstly the construction of 1229(3) of the MR. secondly, error by the magistrate in findings related to Fang v Minister for Immigration[3]andOnea v Minister for Immigration(1997). Thirdly the magistrate erred that the parliaments intention was clear abundantly. Fourthly, the magistrate erred in the finding that the difficulty which was faced by the appellant was intentional on the part of the appellant. Finally, the issue which arose in relation to the date of receipt of the application in the Adelaide office of the Department of immigration. These five grounds were merely the issues which have been identified, the main reason for the appeal was related to the meaning of item 1229(3)(a) ofSchedule1to theMR. Tracey J found decided the case based on the following reasons. It was held according to the opinion of the court that a reading related to 1229(3) of the MR makes it clear that the only why in which one could obtain the particular class of visa if an application is made for such visa with respect to form 866[4]. And where there is any limitation to the application where it does not meet the criteria the minister have the power not to accept it. The conclusion of the court was supported by the note provided in the MR which stated that specific ways in which a non citizen can make an application for a visa are specified in the schedule and any application which is not made in accordance to the schedule would not be made available for consideration. Further it was held by the court that the nature of the statutory provision is such that anything less than the application of the visa through form 866 cannot be considered as an application. The statue provides no room for anything such a s substantial compliance or constructive application by falling short on the use of the form. It was further held by Tracey J that the requirement which was set by the statue in relation to form 866 was not a mere procedural requirement but was a substantial requirement. Further an attempt was made by the appellant to distinguish the cases of Onea and Fang based on the fact that neither case were related to the form of lodgment. The attempt was also disregarded by the court stating that the court required an approach to contrast item 1229 (3) in the same way provisions equal to sub item have been approached and as already noted before Onea and Fang considered rules which were same as item 1229(I). it was thus found by Tracy J that the federal magistrate was correct in its findings and the appeal had to be dismissed with costs. The case clearly implies that in order to make a valid visa application in Australia the application has to be made very strictly according to the provisions of the legislations without any alterations. 2.The principle of statutory interpretation which was used by Tracey J was the literal rule of statutory interpretation. According to the rule it is the duty of the court to provide plain and dictionary meaning to the provisions of legislations it the legislation and clearly and abundantly bringing out the intention of the parliament. This system of Interpretation is the most common form of interpretation which is used by the court when there is no ambiguity in relation to the provisions as it was determined by both the federal court and the court of appeal. The system of interpretation is very useful in bringing out the intention of the legislature and without indulging in judicial activism. The principle in this case would unsure that there is no confusion in relation to the process of making a visa application in Australia and all applications which are not made in accordance to the legislations have to be deemed invalid. References Fang v Minister for Immigration(1996) 64 FCR 245 Migration Act 1958 Migration regulations 1994 Muradzi v Minister for Immigration and Citizenship [2011] FCA 976 Onea v Minister for Immigration(1997) Migration Act 1958 Migration Regulations 1994 (1996) 64 FCR 245 Muradzi v Minister for Immigration and Citizenship [2011] FCA 976

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