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Decision of the Delegate and Notification Process

Discuss about the Opportunities for Rhreats and Dilemmas.

The present situation involves the case of Yelaswarapu v Minister for Immigration &Anor (2012) FMCA 849 (21 December 2012) based on the Australian Migration Act 1958. Facts of the case involves application of temporary student visa online by Mr Yelaswarapu on May 14 2011 providing residential address as his postal address in response to the online application question. The application was rejected by the delegate of Minister on December 6 2011 and the visa was not granted to the applicant on the basis of lack of evidence for maintaining enrolment in full- time study course. The delegate of Minister contended that the applicant was not granted visa based on the non- compliance of condition 8516 and regulation of 573.235 under Migration Regulations 1994.

Decision of the delegate was forwarded to the applicant at his postal address on 7 December 2011 which was returned back to the department for insufficient address on December 14 2011. Further, re- notification of the letter to MrYelaswarapu also failed that was made on December 22 2011 based on the unclaimed factor. Accordingly, the department emailed the applicant on February 10 2012 stating the information on finalization of the visa application while it cannot be reached at the specified address and the same was received by the applicant at his new address provided via email. Moreover, MrYelaswarapu applied as review for the purpose of visa application rejection by the Minister delegate while the same was not accepted by the Tribunal. The Tribunal contended that the application should have been made within 21 days from the date of application decision receipt.

On June 27 2012 the applicant made “show cause application” against the delegate of Minister for the purpose of Immigration & Citizenship and Migration Review Tribunal in the Federal Court. The applicant contended that the Tribunal Committee’s claim lacked the power of jurisdiction for the purpose of decision review. Moreover, the court’s decision with respect to the correctness of claim stated by Tribunal depended on the appropriate information made to the applicant.

According to the principles of Migration Act and Migration Regulations, information letter is required to be sent at the alleged addresswithin the period of three working days from the date of decision. Manner of sending the refusal notice for the purpose of granting visa application is also mentioned in the Act and is required to be followed by the department which involves dispatch of letter by registered post.

Principles of Statutory Interpretations

The Tribunal court contended that the notification dispatched by the delegate of Minister was sufficient in terms of manner and way of dispatch as required by the regulations of Act. It had been noticed that the letter was sent within three days from the date of application decision through registered post at the purported address mentioned by the applicant. Besides, the agent of the migration of the applicant claimed that the notice should have been sent through other mediums like email when the first letter was not delivered to the applicant. On the contrary, regulations of the Australian Migration Act provide that the delegate of the Ministry is not liable to send notice of response through multiple mediums. In the present case, Mr Yelaswarapu failed to mention the appropriate contact details to the Ministry Department hence, contention of both the respondents in the case can be said to have satisfied the regulations of the Act.

Similar to the case of Minister for Immigration & Citizenship v Abdul Manaf, issue had been raised for sending notice of appeal by the Minister of the department within the required time. As per the principles of section 494B of the Australian Migration Act, Minister of the department should dispatch the notice within three working days through the prepaid post to the latest address provided by the applicant. In the decided case, court held that the department delayed in sending the notice to applicant while the Minister decided to take extension of time for such delay that was filed along with the supporting affidavit. Similarly, in case of Xie v Minister for Immigration (2005), the court held that the regulations of the Migration act does not provide in creating rebuttable opinion for the purpose of receipt of document. In such case, the notice may be dispatched within seven working days at the residential address of the applicant. Accordingly, it can be observed that the applicant, Mr Yelaswarapu failed to mention the correct and appropriate address to the department whereas the copy of insurance policy contained specific address which was deposited after a month. The Tribunal court further contended that the submission of policy containing detailed address could not be considered as the notice with respect to the information on address change.

Therefore, it can be interpreted that for the purpose of making visa application for migration, it is essential for the applicant to mention the relevant details appropriately. Since the process of application takes place online, it is important to mention the correct address against the response of the department. However, in the decided case of Yelaswarapu, court contended that the original application was not valid since the address was inappropriate but the same can be said to be valid since the applicant provided the copy of insurance policy with the correct address. Hence, the actual date of receipt of notice by the applicant was 14 February, the date when the third notice was sent at the emailed address. Accordingly, the application for review made by Mr Yelaswarapu can be said to have done within the specified time period while the Tribunal court miscalculated to consider the jurisdictional power. In addition, relevant documents to be submitted for the purpose of visa application should be as per the specifications of Migration Act. Hence, if the applicant is not satisfied with the verdict of Tribunal court, he is eligible to claim relief under “constitutional writs of mandamus and certiorari”. Further, practical implication of the court’s decision in future application states that the online application system would be made more appropriate with respect to providing detail address of the applicant for better communication. The applicants would need to produce relevant documents as support evidence for the purpose of correct address. In addition, future application would involve single and recognised means to deliver the notice by the delegate of Ministry within the specified time.    

Future Implications

In the present case, there are several principles under statutory interpretations utilized by the Federal Court for the purpose of taking the concerned decision. The given situation was associated to the eligibility of review application on the jurisdictional power of the Migration Review Tribunal Court with respect to the decision of the Minister’s decision under Immigration and Citizenship.

The Federal Court considered the regulations based on the literal rule, section 45 as well as 46 under the Migration Act 1958 for visa application to analyse the validity of the initial application made by the applicant. The court evaluated the principles of section 2.07(4) which provides that the validity of online visa application takes place only if the professed address either postal or residential is clearly responded. In addition, the court considered the statutory regulations of section 66(1) under the Migration Act, which provides that the Tribunal Court and delegate of the Ministry is required to communicate the visa decision to the applicant in the specific manne. The regulation provides the means of sending the response notice to the applicant along with the manner in which it has be sent.

Based on the golden rules principle as referred in the case of Grey v Pearson (1857) the federal court utilized the principles of section 338(2) and 347(1) under the regulation of 4.10 of Migration Act to state the time period threshold. Considering the golden rule, the court interpreted the statutory regulations for delivering the required notice ignoring the probable absurd outcomes due to interpretation of words. The regulation under this section specifies the length of the time within which the review application needs to be submitted to the Tribunal Court determined from the date of receipt of the order. It states that the application for review is to be applied within 21 days from the date of receipt of decision notice along with the appropriate documents as support evidence to the order. The federal court also considered the regulations of section 494B with respect to the relevant documents to be provided for the purpose of visa application. The court considered the mischief rule to interpret the provisions based on the common law and probable remedies. Federal court considered the respective loopholes for delivery of notice through prescribed means that is registered post. It provides that the applicant is required to provide complete details of registered residential address that is latest along with the support document either by registered prepaid post or through electronic mail. Accordingly, the decision for the given case was made by federal court by using the abovementioned statutory principles.

Reference

Austlii.edu.au., (2017). Australasian Legal Information Institute (Austlii)https://www.austlii.edu.au/

Australia.Gov.Au (2017) Australia.gov.au <https://www.australia.gov.au/>

Ekanayake, D. and Jackling, B. The growth in international enrolments in Accounting: Implications for an established nexus between education and migration (2014). Accounting Education, 23(3), pp.203-224.

Golebiowska, K., Carter, T., Boyle, A. and Taylor, A. International migration and the changing nature of settlements at the edge (2016). Settlements at the Edge: Remote Human Settlements in Developed Nations, p.75.

Griffiths, J.J. Recognition of Foreign Administrative Acts in Australia (2016). In Recognition of Foreign Administrative Acts (pp. 51-89).Springer International Publishing.

Kell, P., Cameron, R., Joyce, D. and Wallace, M. International developments in skills migration: a case study of the opportunities, threats and dilemmas for Australia (2014). In Workforce Development (pp. 37-55).Springer Singapore.

Li, Y.T. and Whitworth, K. When the State Becomes Part of the Exploitation: Migrants’ Agency within the Institutional Constraints in Australia (2016). International Migration, 54(6), pp.138-150.

Minister for Immigration & Citizenship v Abdul Manaf (2009) FCA 963, (2009) 111 ALD 437

Robertson, S. Time and temporary migration: The case of temporary graduate workers and working holiday makers in Australia (2014). Journal of Ethnic and Migration Studies, 40(12), pp.1915-1933.

Xie v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 172 at (13)

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