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Introduction to Australian Migration Law

  1. Chen v Minister for immigration and Board Protection [2013] FCAC 133

The following case falls under the Migrations Act 1958. The main issue that was raised by the deprived party was whether the GPO box would amount to a place of immigration office or not. Office of immigration is a place where all the applications for getting approval are sent. From a legal point of view, regulation 2. Io of the Migrations Acts specifies that the application should be made at the office which is duly specified. In the following situation, the application was sent to the GPO Box of the department for further verification. It was rejected on the grounds that a GPO office does not amount to the office of immigration, so the application will not be accepted. the main issue that needs to be decided in the following case is that can GPO box amount to an office of immigration or not. The other party, the minister made a contention that there is no evidence that clearly shows that the GPO box would amount to an office of immigration. So, the entire duty was on the shoulders of the court to decide that whether a GPO box will be considered as an office of immigration or not, making the application a valid one and refusing the grounds of rejection.

Regulation 2.IO(I)(b) is drafted on the assumption that the application for visa has to be considered by the minister.[1]

The applicant sent the applicant via GPO Box because it was duly stated by the department in this regard. But at the same time, it was also stated that the application should be duly made at the visa application only. Therefore, in regard to the same, the judges Katmanz, winged, and Griffins JJ came to a conclusion on the facts that the department stated that GPO box can accept applications that are made in regards to visa. Therefore, the box can be used as a place of business. Moreover, the GPO box was duly authorized to carry out business or the department has given the power to carry out requisite operations. The second important thing to keep in consideration was that it was also mentioned on the official website that Visa Application can be made at the GPO box.

Secondly, Section 46 of the Act explains that what is a valid vis application. The application made should duly satisfy the criteria and the requirements to make an application valid.

Therefore, the primary judge came to the conclusion that the post office is an office of immigration and would accept the application in the same way as the office will do. Office of immigration means by which the application can reach the office. As per the terms of regulation 2. Io (4) the terms which indicate that an office is a place that is capable of being occupied by the officer.

The minister referred to the judgment of Cabal v Minister for Immigration and Multicultural Affairs (No.2) in which it was held that when an application is being forwarded to reach the office of immigration. When there is an absence of an "office of immigration" the word is given their original meaning in the particular context, interpretation is done directly with no construction. In the following case, the GPO box was leased out by the government for the purpose of receiving a visa and for the transaction of business. The department also made all the necessary requirements at the place. When there is no evidence present for the same, it is to be taken to have been made at a place which was specified in regulation 2.10 in the ordinary course.

In the case of MULTICULTURAL Affairs v Li [2000] it was related to regulation 2. Io where the judge emphasized on administrative efficiency and held that the requirement is in accordance with the legislative insistence when the prescribed application form is completed.

The doctrine of substantial compliance was not made applicable. The test to determine validity is to prescribe whether the provision or the Act, should be invalid on account of a particular language.

Another important factor that was identified in this case was the structure of the legislative system which provided the task of statutory construction. The judges came to the conclusion that an important thing for a legislative scheme defines the decision-making process.

Therefore, in the following case, the notice of application was amended and the notice was amended by upholding ground 1 and 2. The minister was held liable for paying the appellant cost and the cost of the appeal.

  1. As per the Amendments in Migration Act 1958, made available by the minister of Immigration, Citizenship and Multicultural Affairs, Section 45A of the Act provides that when a no citizen will make an application for the visa he will be in liability to provide a visa application charge if, if the chare paid then only the application would be considered as a valid one. Section 45B (1) of the act states that it is the duty of the regulation to prescribe the amount of visa application, but the amount should not exceed the visa application charge amount. Section 45B (2) of the same regulations provides that the regulations have the authority to decide that the application which is in charge or charge of an application may be nil or has to be paid. So even if Australia has signed an international treaty on the rights of migrant workers, in which Article 45 prescribes that the member states will not charge fees for the eligibility of visa, the amendments in the act specify that charges would be made applicable.[2]

Section 45(c) o the Act prescribes that the visa application charge can be paid in installments or the whole amount altogether. The regulations or the prescribed Authority can also specify as to how they will be calculating the installments and when the installments will be payable. When the new treaty will be signed it will have a negative impact on the visa authorities as their revenue will be deducted from the same. It will be illegal for the Australian Government to impose the same.

  1. Section 16 of the Australian Citizenship Act 2007, prescribes the application and eligibility for making an application for citizenship. Sub clause 2 o the act specifies that a person who is born outside Australia on or after 26 January 1949 can be entitled to get an Australian citizenship:
  2. At the time of birth one of the parents was an Australian citizen and
  3. if one of the parents was an Australian sun citizen under sub section AA, or section 10B. 10C or 11
  4. The parent who is making an application is presented in Australia for a total time of 2 years before making the application or;
  5. The person is not a national or a citizen of any other country at the time of making the application and the person has been never such a national or a citizen;

Subsection 3 of the Act states that a person who is born outside Australia is eligible for Australian Citizenship if one of the parents of the child became an Australian citizen on 26 January 1949 and the person was born in Australia or was neutralized in Australia before the birth of the child.[3]

In the following situation, Bao Huang is 12 months old and born in china in September 2019. Her mother married to an Australian citizen in July 2019. The application was refused on the ground that she had no genetic connection with an Australian Citizen. The statement that was given by the department was that the time when the child was conceived, it was a time when Harry was in a different country. Bao is not the biological child and this was confirmed by the mother also.

Now Section 16 of the Act clearly states that if either or one of the guardians or parents is an Australian citizen at the duration of filing application the child will be given citizenship. In the following situation also the mother of the child is Chinese, but the other half is an Australian citizen. At the time when was born the child had a parent who was an Australian citizen. She got married to the Australian Citizen in July 2019 and the Child was born in September 2019. He is 12 months old which is stated in the facts of the case. So, for the past 12 months, he is living in Australia only with his biological mother and Step-Father. Section 16(2) clearly states that a person is eligible for Australian Citizenship if at the time of birth one of your parents is an Australian Citizen.

Therefore, in the following situation even if the biological father was not Australian, but the child's mother got married to an Australian Citizen and after their marriage, the chill was born, and legally her mother is the parent of the child.

Hence the child is eligible for Australian Citizenship and the parents have the right to make an application under Section 17 of the Act.

Remember, at the center of any academic work, lies clarity and evidence. Should you need further assistance, do look up to our Law Assignment Help

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