The Reasons of Tracey J for his Decision-Free-Samples for Students

Question: Examine and Discuss the reasons of Tracey J for his Decision and the Implications of this Case in relation to valid visa applications also Explain and discuss the Principles of statutory Interpretation adopted by Tracey J. Answer: The reasons of Tracey J for his decision In this case,[1] it was acknowledged by the appellant that the application made by her for Skilled Migration Visa had not been made through the methods described in item 1229(3)(a). She stated that instead she had used an alternative method as she was frustrated in her attempts to file the application to the Internet. She further stated that the methods of making the application that have been mentioned in 1229(3)(a) should not be considered as an exhaustive method. In the same way, it was accepted by all parties that the applicable principle of statutory interpretation that needs to be applied by the Court was the one that has been mentioned by McHugh, Kirby, Gummow and Hayne JJ in Project Blue Sky.[2] Therefore, while deciding the validity of an act that has been done in violation of the statutory provision, it is possible for the court to focus on wrong factors if it is asked if compliance with the provision is directory or mandatory and if it is directory, whether significant compliance is present with such provision. A better test to decide the issue of validity is to consider if it was the invention of the legislation that an act in breach of provision should be invalid. While deciding the question of purpose or intention of the legislation, the language of the relevant provision needs to be considered as well as the scope and objectives of the overall statute. The implications of this case in relation to valid visa applications In the present case, the court noted that the form of application has been provided for by the regulators. However, the form is necessarily imported in the provisions of the legislation to which reference is made. And as a result, it is not possible to speak of the former in the form of a subsidiary to the latter in the way that their can be significant compliance with the legislation even if it does not comply with the requirement which provides for the use of approved form as mentioned in Hunter Resources Limited v Melville[3] by Dawson J. Therefore, in the opinion of the Court in the present case, it becomes apparent after a reading of these provisions that the only way in which an applicant can obtain a visa of a particular class is for an application that has to be made for such visa on form 866. If this requirement is not fulfilled, there is no valid application and the Minister cannot consider such an application. This conclusion is also supported by the Note preceding the Schedule to the Migration Regulations in which it has been mentioned that, this schedule sets out the specific ways through which the non-citizens may apply for a particular class of visa. An application that has not been made as prescribed in the Schedule will not be considered as well and therefore will not be considered. The court further added that in view of the statutory provisions, the court did not consider anything short of use being made on Form 866 as amounting to an application. No room has been left by the statute regarding the concept of a constructive application or the substantial compliance with the provisions for the form through the thunder that falls short of the use of prescribed form. The legislation has made it efficiently clear that an application that has been made by using Form 866 is the only way to which these matters may come for consideration before the Minister and to validly activate the powers of the Minister in this regard. Therefore in the opinion of the Court, the result of this requirement is that the prescription of form is one of substance and it cannot be described as a merely procedural requirement. The principles of statutory interpretation adopted by Tracey J While applying the principles of statutory interpretation, the court noted that it has been provided by section 25C[4] that when a form has been prescribed by an Act, then in such a case, unless there appears to be a contrary intention, it is not necessary to have strict compliance with the form and substantial compliance is enough. In the opinion of the Court, the secretary provisions which prescribed an application form as necessary precondition for validating an application and the powers of the minister to resolve the application revealed a relevant contrary intention of the legislature. As the legislature had mandated that the use of an application will be a precondition to be a valid application, if the form is not used by the applicant, such applicant cannot start the journey of providing the prerequisite entry to the consideration of such an application by the Minister. The court noted the fact that the use of the words, 'if, and only if' by the legislature does not need in all the circumstances that these words should be considered to mean, 'but not otherwise'. When the former words have been used by the Legislature in order to provide in the legislation that the company is to be considered to have ceased to carry on business or not in a position to pay its debts 'if, and only if' certain matters have been satisfied, it was held by the court that it cannot have the intention of creating an absolute statutory presumption instead of a rebuttable presumption.[5] Therefore in context of the present case, when the legislature is mainly concerned with defining the circumstances which decide the validity of the application and to relate this validated with the exercise of decision-making powers by the Minister, it does not appear that any reasons are present to break down the effect of the words, 'if and only if'. Hence, the court stated that these provisions make it clear that the only way in which the visa of a particular class can be obtained is by making an application for it on Form 866. Bibliography Cooper Sargon (1991) 5 WAR 472 Hunter Resources Limited v Melville (1988) HCA 5 Muradzi v Minister for Immigration and Citizenship (2011) 250 FLR 201Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 Section 25C, Acts Interpretation Act, 1901 (Cth) Muradzi v Minister for Immigration and Citizenship (2011) 250 FLR 201 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 Hunter Resources Limited v Melville - [1988] HCA 5 section 25C, Acts Interpretation Act, 1901 (Cth) Cooper Sargon (1991) 5 WAR 472