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Discuss Chen V Minister For Immigration And Border Protection 2013

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Question:

Examine and discuss the reasons why Katzmann, Griffiths and Wigney JJ decided as they did and the implications of this case in terms of valid visa applications. Did their Honours employ any principles of statutory interpretation ?

 

 

Answer:

The issue that the code was required to decide in this case was if a valid visa application has been made. According to the Regulation 2.10 of the Migration Regulations, it is required that a particular visa application has to be made "at the office of immigration in Australia". In this case, the visa application made by the applicant reads the GPO box by express post before the relevant deadline expired. However the department did not collect the visa application until the deadline for the same has been expired. Therefore, the court was required to decide if the GPO box of the department can be considered as the "office of immigration" or if it can be considered as a part of the office of immigration. At the same time, if GPO box cannot be considered as the office of immigration, it was required to be decided if the applicant has substantially complied with the requirement.

 
In this way, the applicant had deposited the visa application at the GPO Box that has been specified by the Department of Minister for Immigration and Border Protection while migration regulation required that the visa application has to be made at the office of Immigration in Australia. In this regard, the reasons given by the Court were that the GPO box was leased by the Department of Immigration and Border Protection for receiving the visa applications and therefore it can be considered as a "place for transactions of business" or in the alternative, the GPO Box can be considered as "a place for business" for the department or a place where the business of the department is carried on. The department has leased the GPO Box for receiving written applications for the grant of visa. Arrangements have been put in place by the Department that the visa applications and shall be collected from the GPO Box and the same will be delivered that the Processing Center of the Department where the officers of the Department process all the visa applications. Although it has been mentioned on the website of the Department that the relevant visa applications can be made by other methods like facsimile, courier or these applications can also be made online, it needs to be noted that the applications can be made by posting the same to the GPO box that has been nominated by the department in this regard.

 

 

As a result, the Court accepted the submission of the applicant that even if GPO box cannot be considered as a stand-alone office of the Department for the purpose of regulation 2.10, it needs to be considered as a part of the office of the Department of Immigration. As a result, it was stated by the court that the GPO box can be considered as an 'Office of Immigration' and therefore, it can be said that the application that has been received in the GPO box needs to be considered as an application that has been made at the office of Immigration.

On the other hand, the court did not accept the submission of the Minister that satisfactory evidence was not present that can establish that GPO box has a stable physical existence like any other "place". In this regard the court considered the evidence given by the ACDC manager regarding the Express Post Service of Australia Post and how it receives, sorts and delivers the items. In case of certain specified routes, next business day delivery has been guaranteed by

Australia Post in case of all the Express Post envelops that have been lodged correctly on a business day. In this regard, the manager of ACDC also gave evidence that the GPO box number 2399 in Adelaide has been leased by the Department of immigration from Australia Post. All the items arriving at the ACDC were scanned on their arrival and then these items were transferred to the relevant area and sorted so that they can be sent to their destinations, including the post office boxes. It was also stated that once an item has been placed in the post office box, it is not any more under the control of Australia Post. At the same time, an employee of a company named Converga gave evidence that they had a contract with the Department of Immigration and collected mail from ACDC every day and delivered it to the department. This evidence was considered as sufficient to rebut the contention of the Minister of Immigration that no sufficient evidence is present which can establish that the GPO box of the department has a stable physical presence like a 'place'. As a result, the court stated that the GPO box can be considered as a place which can be leased and where mail can be delivered physically and at the same time it can be collected from this place.

 
In the same way, the court also accepted the summation of the applicant that the specification of the GPO box by the Department in the relevant booklet and its letter amounts to evidence that supports their main contention that the GPO box is at least a part of the office of the Department for receiving the applications. As a result, this submission was accepted by the court. By applying the principles of golden rule of statutory interpretation, the court stated that the doctrine of substantial compliance was not applicable in the case. The question is that of construction if an act that has failed to comply with the condition regarding the exercise of statutory power is invalid and therefore of no effect. In this regard the court stated that the language of regulation y2.10 provides no scope for substantial compliance doctrine. These were the reasons due to which Katzman, Griffiths and Wigney JJ arrived at their conclusion.
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