1.Chen v Minister for Immigration and Border Protection [2013] FCAFC 133 is an important case that covers many matters relevant to your study of immigration law. To answer this question in essay format, provide examples and explanations of how the case highlights the operation of Australia’s legal system, and in particular, migration law. Your answer should also consider the implications of case law on your future practice as a migration agent.
2.Write a file note to your supervisor outlining the legislative requirements that will impact Shelley’s ability to lodge a further visa application while she is in Australia. In completing this task you do not need to give consideration to which visa Shelley might apply for.
1.The case of Chen v Minister for Immigration and Border Protection [2013] FCAFC 133 is a significant case in relation to Migration Law in Australia. The primary notion in relation to which the case had been brought before the court was related to the discussion about the validity of an application for a visa to a place nominated by the minister[1]. The question was to assess the legislative compliance of the application as per the Migration Act 1958 (Cth). The primary aim of the essay is to identify and discuss the applications of this case with respect to the practice of migration agents. The paper also highlights the way in which the Australia legal system functions in relation to the Migration Law.
In the given case the applicant was an holder of a visa which was about to get expired in December 18, 2012. The applicant wanted to apply for a subclass 892 visa. With respect to the provisions of 1104B(3)(f) of Sch 1 of the Migration Regulations 1994 the applicant needed to have a Business Skills (Provisional) (Class UR) visa for making the application for 892 visa[2]. As a result of the provisions there has been a requirement for the applicant to launch the application before December 18, 2012 which is the expiry date of her visa. The department prescribed that the application needs to be either by courier to the street address of the centre at Adelaide or at skill processing centre by post at GPO Box 2399. The visa application had been posted on 17th December but it reached the migration office by 19 December by the time the visa had expired.
In this case the decision had been made by the court in the favour of the applicant. There were three grounds on which the applications had been made by the applicant. However the third ground of appeal had been rejected by the court and the decision had been made based on ground 1 and 2. The court issued a writ of certiorari which defeated the decision of the minister that the application was not considered to valid.
There were three grounds of appeal in relation to which the application was made. Firstly the applicant argued that there was a error made by the primary judge with respect to his decision that a valid application had not been made at a office of immigration as defined under reg 2.10(2A)(b) as the application had been received at the GPO box of the department on 18th December. The second ground stated that the primary judge should have held that the GPO box was an office of immigration or its part and the application which had been made was a valid application as under reg 2.10(2A)(b) of the MR[3] as the application had been received at the GPO box of the department on 18th December. The third ground of appeal stated that it should have been held by the primary judge that the rules under reg 2.10(2A)(b) will be satisfied if substantial compliance have been made and there was substantial compliance made by the appellants as the application had been received at the GPO box of the department on 18th December.
The court stated that the GPO box which the department had leased to receive visa application and thus it was a place for business or place for transaction of business. The arrangement of the department stipulated that among various methods by which application could be made it was also allowed to be made by a written application to the GPO box. Thus it is correctly stated on the part of the applicant that the even where GPO is not a alone office as per the reg 2.10it is a part of the department office. Thus the application which has been made is a valid application at law. The court however rejected the third ground of appeal based in statutory interpretation principles.
The case as per the above discussion has a significant impact in the process of the way in which a visa application will be valid. The court has clarified through its decision that legislative compliance is important for the purpose of making a visa application. It was a also clarified by the court that the visa application will be deemed to be made when it has actually been received by express post at the GPO box as stipulated by the minister although the application had not been stamped until the next day. It can also be stated that the Australian legal system in relation to migration law also functions based in the principles of statutory interpretation as provided by the Acts Interpretation Act 1901 (Cth)
2.To
The supervisor
Sub – The legislative requirements which will have an impact on the ability of Shelley to make a visa application while she is in Australia.
Respected Sir
This file note is in relation to the legislative requirements which will have an impact on the ability of Shelley to make a visa application while she is in Australia. It has been provided through the situation that Shelly is on a visitor’s visa which has a condition 8503 on it. As provided through the Migration Regulations 1994 sch 8 any person on whom the visa condition is imposed does not have the right to stay in Australia any further if the visa held by them has expired[4]. While having an 8503 condition imposed in a visa a person has no right to make a further visa application. The only way in which a visa application can be made by a person holding a visa with a condition 8503 is that the condition is waived upon written request by the Minister under the provisions of section 41 (2) (a) of the Migration Act 1958[5]. The Minister has a discretion to waive the condition in case the minister is satisfied that since the visa has been issued to the person there has been some compassionate and compelling circumstances which is not within the control of the person and has caused significant change in the position of the person. In the given situation it can be stated that there have been compelling situations which has changed the position of Shelly since the visa has been issued. She had the right to make the application for the waiver of the condition 8503. However in the given situation she has not made a application for the waiver in relation to the condition and the condition cannot be waived unless an application is made. As the condition was still imposed in the visitor visa held by Shelly her visa application has been rejected.
Now as the visa application which has been made by Shelly has been rejected, she can make a fresh visa application. Before a fresh application is made she would have to make an application for the waiver of condition 8503. For this she would be required to make a written application under section 41(2) (a) of the MA. The waiver application can only be made if refused once if the circumstances are different from the previous circumstances. However in the given situation the rejection of the application has been in relation to a visa and not waiver so Shelly has the right to waive the visa condition 8503. The request can be made by filling form 1447. It must also be taken into consideration that if the request to waive the condition cannot be reviewed in terms of the decision.
Here the visa application which has been made by Shelly has been rejected due to the above mentioned reasons. However she has the right to make an application for the same visa unless it has not been expressly denied to do so. It has not been provided through the situation that the visa application of Selly is not restricted. Thus she can make a visa application again but this time she is required to get the waiver of the condition 8503 before the visa application is made. In addition it has been provided that the visa application has been rendered invalid and not reached the decision stage. Thus it would not have any effect in the application after the waiver of condition 8503 has been granted to Shelly. There is a difference between a visa application being rejected and a visa application being declared as invalid. The visa application which be rejected or refused if a valid visa application is made and has been refused for some other reasons. On the other hand a visa application will be considered to be invalid if it has not complied with the criteria of making a valid application such as application fees and eligibility of application.
Thus for the above discussion it can be concluded that the visa application which had been made by Shelly without waiving condition 8503 has been rightly declared invalid and she can make an application after the condition is waived.
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Chen v Minister for Immigration and Border Protection [2013] FCAFC 133
Migration Regulations 1994 (Cth)
Migration Regulations 1994 (Cth) reg 2.10(2A)(b)
Migration Regulations 1994 (Cth) sch 8
Migration Act 1958 (Cth) s 41 (2) (a)
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