Yelaswarapu V Minister For Immigration & Anor: Practical Implications And Statutory Interpretations

1. Explain in plain English the practical implications of the decision of the Federal Court in Yelaswarapu v Minister for Immigration & Anor?

2. What principles of statutory interpretations (if any) were utilised by the Federal Court in this case?

1. In this case the applicant is a person who had applied for a student visa and the respondents are the ministry of immigration as the first respondent and the Migration review tribunal as the second respondent[1].

The application of the applicant was rejected as tribunal found that the filing was not on time and it had no jurisdiction over the matter. The applicant had lodged a student visa application online on 14^th may 2001 and the address provided by the applicant online was a purported postal address which was same as his residential address.  The minister had refused to grant visa to the applicant as it found that the applicant was not able to satisfy condition 8516 and there was no concrete evidence that he managed to get enrolled in a full time course in Australia. The decision was attempted to be notified to the applicant through post but was returned on the grounds that the address was not correct. The letter was then sent to another address so that the applicant could be notified. The department forwarded an email to the applicant that they have made a decision regarding the application and it had been sent to wrong address due to administrative error. The application in reply requested to send the letter again at the provided address. The letter was according to the request sent to the new address and an application was made for the review of the decision to the tribunal. The tribunal in this case had a view that the applicant was not able to file the application within time and he had been properly notified via email of the decision made by the immigration department.

The applicant filed a review with the court of appeal against the decision made by the tribunal. Initially the court of appeal ruled that there was a judicial error in the part of the tribunal in ruling that it had no jurisdiction over the matter. The court determined that the only issue which exists between the party is that whether the decision of the tribunal court in relation to its jurisdiction was correct or not. The court in this case determined that the court book of the tribunal did not have all relevant information in relation to the communication which took place between the applicant and the respondent. The court ruled that in order to determine whether the the decision made by the tribunal in relation its jurisdiction was correct or not it has to be determined that whether the immigration department was able to notify the applicant of its decision in a proper way or not. The court of appeal had ordered the minister to file another supplementary notebook with the court in relation to the communication process. The court had evidence before it that the immigration department had made several attempts to notify its decision to the applicant. The court also considered the affidavit filed by the applicant that he had not received the letter and there was no objection on the part of the respond ants in relation to the affidavit.

The ministers in this case argued that the notification letter was was sent to the applicant can be regarded as sufficient notification as provided by the provisions of the Migration Act 1958[2] and the migration regulation 1994[3] and therefore the decision of the tribunal that it lacked jurisdiction was correct according to the respondents.

In response to the argument made by the respondent the applicant stated that the application made by him for the review of the decision was according to the provisions of Section 338(2) and was made within the prescribed period according to the provisions of Section 347(1) (b) (i) of the Act. in addition the applicant provided that his the application was made according to Regulation 4.10 of the migration regulation 1994 according to which an application can be made before the tribunal within a period of 21 days from the date on which the letter was actually received by the applicant.  The applicant also argued on the basis of section 66(1) of the act that the minister has the duty to notify the applicant on whteher his application for the visa had been successfully or not.

The court in this case reconsidered the process of communication of the letter of refusal by the departments of immigration to the visa applicant. The court in this case found that the applicant had failed to provide a genuine and correct address at the time of application where the ministry could have sent successful post. The ministry in this case had made not one but several attempts in order to notify the applicant that his application has been refused. The department of immigration had also complied totally with all the relevant section according to the Migration Act and regulations which are section 494B and 494C according to which the letter had to be dispatched within three days and through a registered post.

The court in this case found that although according to law it has to be deemed that the letter is received by the applicant within 7 days from its dispatch if this literal meaning is given to the rule that it would defeat the intention of the parliament which actually wants the letter to be received by the applicant. 

It was also made clear by the court in this case that the visa application made by the applicant was valid even if the address provided in it was not correct.  The court after considering all the relevant facts of the case ruled that even through the immigration department had made several efforts to notify the application of its decision the application was notified only when the applicant actually received the letter. Therefore the period of 21 days under which the application has to be made would start from the day when the letter was actually received by the applicant. Thus the court passed the writs of Certiorari and Mandamus for quashing the record of the migration court and to redetermine the application made by the applicant before it.

2. The statutory principles of interpretation may be defined as a procedure to determine if a particular statute is applicable to specific circumstances and if so, then what consequences it would lead to[4]. There are mainly three essential principles that are followed by the judiciary system for the purpose of interpretation. The court relies on the following rules for interpreting the statutes:

• The Literal Rule- this rule is applied to construe the literal meaning of the words of a particular statute. This rule has been explained in the Engineering case as an essential rule of interpretation and that any statute is to be interpreted in accordance with the intent of the parliament that has legislated it. The intent of the Parliament can be determined by examining the language that has been used in the entire statute[5].
• The Golden Rule- this rule enables the court to modify or depart from the literal meaning of the statute in case when such meaning leads to absurd consequences or when the language of the statute is unambiguous.
• The Mischief Rule- the courts must interpret a statute in such a way so as to suppress the mischief underlying in the statute and to advance the relief or remedy[6].

In the context of the case of Yelaswarapu v Minister for Immigration & Anor [2012], the Federal court has applied both the literal and the Golden rule of statutory interpretation. The tribunal rejected the review application on the ground that it lacked jurisdiction in the matter, as the review application was required to be submitted within 21 days after receiving the notice, which Mr. Yelaswarapu submitted after 44 days. The First Respondent contended that Mr. Yelaswarapu failed to provide a valid address in the form that invalidates the visa application. However, the Federal Court interpreted literally Section 25C of the Interpretation Act 1901 according to which when an act is prescribed by the Act then strict compliance of the form is not compulsory and substantial compliance is sufficient unless any contrary intention is determined.

Again, when the first respondent contended that the Minister has complied with all the statutory provisions regarding serving the notice of rejecting the application and to check the validity of address was an ‘intolerable burden’. The Federal Court applied the golden rule and interpreted that Mr. Yelaswarupa has not deliberately concealed his address and it was a mistake. But he completed his application and the visa application was complete and valid thereafter. The court held that the applicant was not adequately notified about the notice and he submitted the application within time period before the Tribunal and hence is entitled to relief.

References

Blomley, Nicholas K. “Interpretive practices, the state and the locale.” The Power of Geography (RLE Social & Cultural Geography): How Territory Shapes Social Life (2014): 175.

Gluck, Abbe R. “The Federal Common Law of Statutory Interpretation: Erie for the Age of Statutes.” (2013).

MacCormick, D. Neil, and Robert S. Summers. Interpreting statutes: a comparative study. Routledge, 2016.

Migration Act 1958

Migration Regulation 1994

YELASWARAPU v MINISTER FOR IMMIGRATION ANOR [2012] FMCA 849 (21 December 2012)

Bibliography

Aas, Katja Franko. The borders of punishment: Migration, citizenship, and social exclusion. Oxford University Press, 2013.

Beine, Michel, et al. “Comparing immigration policies: An overview from the IMPALA database.” International Migration Review (2015).

Brettell, Caroline B., and James F. Hollifield. Migration theory: Talking across disciplines. Routledge, 2014.

Hawthorne, Lesleyanne, and Anna To. “Australian Employer Response to the Study?Migration Pathway: The Quantitative Evidence 2007?2011.” International Migration 52.3 (2014): 99-115.

Schilling, Meredith. “Migration law [Book Review].” Victorian Bar News 160 (2016): 96.

YELASWARAPU v MINISTER FOR IMMIGRATION ANOR [2012] FMCA 849 (21 December 2012)

Migration Act 1958

Migration Regulation 1994

MacCormick, D. Neil, and Robert S. Summers. Interpreting statutes: a comparative study. Routledge, 2016.

Gluck, Abbe R. “The Federal Common Law of Statutory Interpretation: Erie for the Age of Statutes.” (2013).

Blomley, Nicholas K. “Interpretive practices, the state and the locale.” The Power of Geography (RLE Social & Cultural Geography): How Territory Shapes Social Life (2014): 175.