Immigration and Multicultural Affairs

Question: Discuss about the Immigration and Multicultural Affairs. Answer: Introduction Yaleswaparu had submitted an online visa application that did not give the full details of his residential address. The court of first instance dismissed his application on the ground that it did not have the jurisdiction adjudicate the matter as the application had been filed out of time. On judicial review the court ruled that the tribunal court had erred in its judgment that it lacked jurisdiction and it was affirmed that Yaleswaparu had made his application within the time that has been stipulated in Regulation 4.10 that gives a time of limitation of 21 days after the notice has been received. Implication of the case The major implication that can be withdrawn from the case is that a visa application form will only be valid if the residential details have been submitted. It has thus been noted that the applicant must inform the minister of his residential address. The residential details may be supplied in the application form or in another document that accompanies it. In addition the minister of immigration will not consider an application that is invalid.This implies that that the application for visa will be denied by the minister if does not satisfy the legal requirements. From the facts of the case it is clear failure to submit complete details in an application form does not invalidate the application. The essential requirement is that there must be a substantial compliance to the directions given in the form. Although the law provides that strict compliance of a form is not mandatory and will and the failure of which does not invalidate the form, it is implicit from the case that the law should be applied holistically. This is because there may be a law that strictly provides for a mandatory requirement of particular information as is the case in the requirement of a residential address in the visa application form. Other requirements that have not been expressly requested by any immigration law fall within the rubric of Regulation 2.07 that provides for the requirement of substantial compliance. It bear noting that at judicial review the judge agreed that an application that is submitted without the residential address is invalid although where there was any document that was submitted prior to the application and which gives the complete details of the residential address, the application becomes valid by virtue of the prior document. From the Yaleswaparu case, it can also be observed that the response that is given by the minister for immigration is deemed to have been received after seven working days from the date indicated in the document sent. It is however, clear that the document will be deemed to have been received even where the document was not actually received. The implication of this position appears to be harsh on an applicant who wants to apply for review at the migration tribunal. The law states that an application for review to the tribunal should be made within 21 days after the receipt of the notice by the minister. This position that was applied in the Y aleswaparu case seems to be unfair to the person who did not receive the notice has been envisaged in Murphy vs. Minister of Immigration and Multicultural and indigenous affairs. The minister must use the legally prescribed methods of notifying an applicant of the decision of whether a visa has been granted or not. Section 494B[10] provides that one of the methods that may be applied by the minister is the use of pre paid post. The minister is only obliged to use the dress that has been given in the application document. A clear understanding of the Yaleswaparu case demonstrates that the address to be used could also be contained in another document that was submitted prior to the major application document but is related to the visa application process. It is thus abundantly clear that where one document does not give the complete details of the residential address the immigration department is enjoined to look at any other supporting document for the complete details. It is worth noting that the applicant has the liberty to inform the immigration department of any change in the details of address and residence within reasonable time. The method of communica tion of the decision to amend the details of address is similar to those that are prescribed in Section 494B of the Migration Act. It follows that a proper notice from the minister of the decision to refuse or grant the visa will only be deemed to have been received if it has been sent to the right address if the address has been provided by the applicant. The notice is deemed not to have been received if it sent to the wrong address and other rules such as the one providing for application for review will not apply. The immigration department should thus scrutinize the application and all other supporting documents that have been given by the applicant to determine the complete address to send the notice. In addition, it is implicit in the Yaleswaparu case that the tribunal should also be careful to investigate all the facets of case presented before it rules that it lacks the jurisdiction to adjudge the matter. The rules for sending a notice to the applicant that have been provided in section 66(1) of the migration Act must also carefully be applied to prevent unfairly disadvantaging the applicant. It can be c onceded that according to the Yaleswaparu case the immigration laws must be applied objectively on case to case basis. In addition the Migration regulations should not be applied in isolation of other meaningful legal provisions. Legislative interpretation has been regarded as art that should be carefully applied to ensure that the parties in dispute attain justice and fairness.[12] Indeed the art of legislative interpretation has been demonstrated in the Yelaswarapu v Minister for Immigration Anor.[13] It can be noted that the court in this case gave a literal interpretation to Regulation 2.07(4) Migration Regulations which provides that the residential details can be given in the application form or in any other document. The literal interpretation gives the intention of the law makers which means that the judges should read the section of the legislation as whole. The court in Yelaswarapu case applied this rule by validating the application made by Yelaswarapu on the basis that the details of the residence were given in another document prior to the main application. In interpreting Section 52(3A) of the Migration Act the court had to apply the golden rule and the purposive approach. This section appeared to create an ambiguity because Regulation 2.07 of migration rules provides that the application form must not be strictly complied with. The court thus had to give the section an ordinary and plain meaning which is laid out in the golden rule of interpretation. In interpreting Regulation 2.07 the court applied the purposive rule of interpretation by assuming that the purpose of the section was to ensure that the applicant gets justice even in the case he may not have fulfilled all the requirements of the form. The court also applied the interpretation principles that have been created by statue such as the Acts Interpretation Act 1901. The court here applied Section 25C Acts Interpretation Act 1901 to give meaning to the requirement of substantial compliance in in following the directions of a form. Section 15AA(1) provides that in interpreting the a provision of a statute the court should aim at promoting the purpose of the act. In essence the court applied a holistic approach in interpreting the statutes and it considered the proving of other statues. Bibliography Acts Interpretation Act 1901(cth) Kirby M, Statutory Interpretation: The Meaning of Meaning [2011] Melbourne University Law Review 3; (2011) 35(1)Melbourne University Law Review 113; https://www.austlii.edu.au/au/journals/MelbULawRw/2011/3.htm Migration Act 1958(cth) Migration Regulations 1994( cth) Yelaswarapu v Minister for Immigration Anor [2012] FMCA 849