Immigration Problems & Rules of Australia-Samples for Students

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 in reaching his conclusion. Answers: 1.The present case is based on the immigration problems and rules of Australia. The case has two parts, the first part describes the reason for the judges decision and implication of the same on the case; the second part contains the statutory interpretation of the case decision. The case is arose when one Murazdi filed a case against the Ministry for Immigration with an allegation that the said authority had failed to deliver skilled migration visa to her. A writ for Mandamus was filed by her, but learned Judge; Tracey pleased to dismiss the case and ordered her to bear the cost of the case. There are certain reasons behind the decision of the court. The case throws light on the several provisions of the Migration Act 1958 and narrates the importance of the same[1]. The procedure for obtaining the permission from the respected authority regarding the visa and the validity of such application and the consequence regarding the same in case of failure to apply for that within the time mentioned have been discussed here. In this case, certain sections of the Migration Act 1958 are discussed and the decision of the judge is based on that. According to the provision of section 45(1), in case of a non-citizen, a special classes of visa is necessary[2]. In this case, it has been observed that the appellant Murazdi had applied for skilled migration visa. However, the appellant had failed to meet the criteria for the validity of the application regarding the same and failed to file the application in time. As per section 46(2) of the Act, the application must be made with utmost validity. The term valid here denotes that the application for the visa must meet the criteria mentioned under the section 47 of the said Act. It has been mentioned that if the application does not follow the rules regarding the same, the provision under section 65 will not be applied and the application for granting visa will be void in nature. Certain procedures are mentioned under the Act that stated the ways by which an application for visa can be made[3]. The process of sending the plea for the application of visa is mentioned under the Migration Regulation 1994 too. As per schedule 1 of the said regulation, the application should be made either by way of net or by way of pre-paid posting or the same can be sent by way of courier service[4]. However, in this case, it can be noticed that the appellant had sent her application for the granting of visa through facsimile transmission. This process is not included under the legal provision. A misunderstanding cropped up between the sender and the receiver and for that reason, the immigration authorities had denied granting her visa as the application of the appellant reach there after the due date is over. According to Tracey J., the immigration authority had not done anything wrong as against the appellant as the appellant had failed to meet the necessary criteria regarding the submission of the application for visa. Section 47 of the Migration Act confers certain duties on the immigration authorities regarding the examination of the validity of the visa and disallows the application if it is invalid. The application was received the authorities after the due date and therefore, the decision of the authorities regarding the visa is legal. Therefore, the court dismissed the appeal based on the following reasons and decision of the court is justified as per the necessary provision of law. The order of the court had created serious implication on the visa applications and it clarifies the provision regarding the obtain of visa from the necessary authorities and the legal provision of the visa are to be mentioned in this case and the decisions of the respective Judge in this case has also been taken into consideration[5]. 2.Deciding the facts of the case, Tracey J. had taken certain statutory provisions regarding the same to reach into a fruitful consideration. It has been stated earlier that the case attracted various relevant provisions of the Migration Act 1958 and Migration Regulation 1994. While making the decision Tracey J. considered certain cases[6]. In Project Blue Sky Inc. V. Australian Broad casting (1998) HCA 28, it has been observed that if in a case for the determining the validity of a work is to be done, it has to be observed whether there is any provisions regarding the mandatory sections and whether the same has been done properly or not. If the mandatory provisions are not maintained properly, then the act is to be held invalid. Section 47 of the Migration Act 1958 stated that the application for visa must be done validly and if there is any breach regarding the same, Minister of Immigration has all power to cancel the same. The application by the appellant had not valid in nature as the process of sending the application are not processed as per the provisions of the Act and the application was made after the due date was over. In Fang v. Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245, it has been observed that if there is any provisions prescribed expressly regarding the application of visa and if the application is not made as per that provision, the application will be held invalid from every aspects and the authorities have every rights to cancel the application[7]. Same principle has been adopted in case of the Onea v. Minister for Immigration and Multicultural Affairs (1997). In this case, it has been stated also that there is no necessity for the applicability of the Interpretation Act to that effect as there is a clear intention of the decision maker being made. Rules that are mentioned in section 46 and 47 of the Act are clarify the requirement of a valid visa application and the ministry should not consider any other criteria to that effect[8]. These case laws are taken a big role to decide the fate of the present case and Tracey J. had decided the case by interpreting the relevant clauses of the Migration Act and held that the appellant had failed to meet the criteria mentioned in the Act and dismissed the case. References: Ngai, Mae M.Impossible subjects: Illegal aliens and the making of modern America. Princeton University Press, 2014. Burn, J. M. "Anti-Slavery Australia submission to the Senate Legal and Constitutional Affairs Committee Inquiry into Migration Amendment (Regaining Control over Australias Protection Obligations) Bill 2013." (2014). Pruitt, Lesley, Ms Rebecca Powell, and Helen Forbes-Mewett. "Submission to the Joint Standing Committee on Migration on migrant settlement outcomes." (2017). Ogawa, Megumi. "AUSTRALIAS POWER TO DETAIN: A FOREIGN NATIONALS PLANNED REMOVAL OPERATION TO A THIRD COUNTRY."Griffith Journal of Law Human Dignity3.2 (2015). Creek, Tristan G. "Starving for freedom: An exploration of Australian government policies, human rights obligations and righting the wrong for those seeking asylum."The International Journal of Human Rights18.4-5 (2014): 479-507. Grewcock, Michael. "Back to the Future: Australian Border Policing Under Labor, 2007-2013." (2014). Anderson, David M. "Guilty Secrets: Deceit, Denial, and the Discovery of Kenyas Migrated Archive."History Workshop Journal. Vol. 80. No. 1. Oxford University Press, 2015. Valdivia, Alejandra, et al. "Regulation of circular dorsal ruffles, macropinocytosis and cell migration by RhoG and its exchange factor Trio."Molecular Biology of the Cell(2017): mbc-E16. Ngai, Mae M.Impossible subjects: Illegal aliens and the making of modern America. Princeton University Press, 2014 Burn, J. M. "Anti-Slavery Australia submission to the Senate Legal and Constitutional Affairs Committee Inquiry into Migration Amendment (Regaining Control over Australias Protection Obligations) Bill 2013." (2014). Pruitt, Lesley, Ms Rebecca Powell, and Helen Forbes-Mewett. "Submission to the Joint Standing Committee on Migration on migrant settlement outcomes." (2017). Ogawa, Megumi. "AUSTRALIAS POWER TO DETAIN: A FOREIGN NATIONALS PLANNED REMOVAL OPERATION TO A THIRD COUNTRY."Griffith Journal of Law Human Dignity3.2 (2015). Creek, Tristan G. "Starving for freedom: An exploration of Australian government policies, human rights obligations and righting the wrong for those seeking asylum."The International Journal of Human Rights18.4-5 (2014): 479-507. Grewcock, Michael. "Back to the Future: Australian Border Policing Under Labor, 2007-2013." (2014). Anderson, David M. "Guilty Secrets: Deceit, Denial, and the Discovery of Kenyas Migrated Archive."History Workshop Journal. Vol. 80. No. 1. Oxford University Press, 2015. Valdivia, Alejandra, et al. "Regulation of circular dorsal ruffles, macropinocytosis and cell migration by RhoG and its exchange factor Trio."Molecular Biology of the Cell(2017): mbc-E16.