Chen v Minister for Immigration and Border Protection [2013]

Question: Read the decision of Chen v Minister for Immigration and Border Protection [2013] FCAFC 133 (20 November 2013) attached to this assignment.Examine and discuss (in plain English) 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: Discuss Chen v Minister for Immigration and Border Protection [2013] The issue before the court was if the applicant is made a valid visa application. In this regard, Regulation 2.10. Provides that the visa application should be made "at the office of immigration". However the applicant sent his visa application to the GPO Box of the department by express post and the application reached the GPO box of the department before the deadline for making the application expired. But the application was not collected from its GPO Box by the department before the expiry of the deadline. As a result, it was needed to be decided if GPO Box can also be treated as the office of immigration or a part of the office. Therefore the court had to decide if, by sending the application to the GPO Box, the applicant has been able to comply with the requirements prescribed by the Act. The applicant had deposited his visa application in the GPO Box that was prescribed by the department in this regard. At the same time, it was required by the migration regulations that the application for visa should be made at the office of immigration. In this regard, katzman, Wigney and Griffiths JJ based their decision on the reason that the department has leased the GPO box in order to receive the visa applications. As a result, in this case the GPO box can be treated as the "place for business transactions".Alternatively, it can also be considered that the GPO box is the "place for business" or a place where the department carries on its business. Therefore the GPO box was prescribed by the department to receive written applications and at the same time, there were arrangements made by the department according to which the visa applications were collected from such box and were delivered to the department's processing center where the officers processed these applications. At the same time, department's website also mentioned that a visa application can also be made by using other means like courier, facsimile and at the same time, these applications can be made through the Internet but the department also allowed the applicants to apply for a visa by sending the visa application to the denominated GPO box of the department. Therefore this submission was accepted by the court that even if the GPU box cannot be treated as the stand-alone office, at least it can be treated as a part of the office of the department. The result was that the court stated in this regard that the GPU box of the department can be treated as its 'office'. Similarly, the court also stated that as a result the application received in the GPO box has to be treated as an application that has been made at the department's office itself. In order to reach its conclusion, the court rejected the submission made by the Minister in which it was contended that sufficient evidence has not been presented which could be established a stable physical existence can be attributed to the GPO box of the department as is the case with any other 'place'.For this purpose, the evidence of ACDC manager was considered by the court related with the Express Post Service provided by Australia Post. The court also considered how it was received, sorted out and delivered the post. But in case of some routes, the department guaranteed delivery on the next business day for all Express Post envelops. When a particular item arrived at ACDC, it was scanned and then transferred to the relevant area to be sorted out and sent to its destination which included the post office box. The manager also stated in the court in this regard that after a particular item has been placed in the post office box, Australia Post had no longer any control over such item. In this regard, the representative of a company called Converga was examined in the court. This employee of Converga stated in the court that the company had a contract with the department according to which mail was collected by the company from ACDC every day and later on the mail was delivered to the department by the company. In this way, the Court considered that this evidence was sufficient to refute the convention made by the Minister that sufficient evidence has not been placed in the court in order to establish the stable physical existence of the GPO box of the company like any other 'place'. The result was that in the opini on of the Court, the GPO box can be treated as a 'place' like any other which was capable of being leased and at the same time, mail can be physically delivered on such place and mail can also be collected from there. At the same time, the convention made by the applicant was also accepted by the court that by specifying the GPO box number in the relevant booklet of the department and also in its letters, it can be said that evidence is present which supports the main contention of the applicant that at least the GPO box is a part of the office of the department where applications can be received by it. The court accepted this submission made by the applicant. At the same time, relying on the golden rule of statutory interpretation, it was stated by the court that the doctrine of substantial compliance did not apply in the present case.The question before the court in this case was that of construction if the act that does not comply with the condition related with the exercise of statutory power is invalid and as a result, of no effect. The court stated in this regard that the language used in migration regulation 2.10does not allow any scope for the doctrine of substantial compliance. Case Law Migration Regulations 1994 (Cth) Migration Act, 1958 Macrae v St Margarets Hospital [1999] NSWCA 381 Cabal v Minister for Immigration and Multicultural Affairs (No 2) [1999] FCA 11 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 Tasker v Fullwood [1978] 1 NSWLR 20 Migration Regulation 1994 Sch 2.10