Tatenda Muradzi v Minister for Immigration and Citizenship

[2012] HCASL 58

TATENDA MURADZI
 v
MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2012] HCASL 58
M133/2011

1. The applicant, a citizen of Zimbabwe, arrived in Australia in 2005 as a holder of a student visa which was set to expire on 15 March 2010. On 15 March 2010, the applicant sought to apply for a Skilled (Provisional) Migration Visa (Class VC). This was the last day on which she was able to do so. On 25 March 2010, the applicant was advised by a delegate of the respondent that her visa application was invalid because it was received on 16 March 2010 and was received by facsimile rather than by the one of the prescribed methods listed in Sch 1 of the Migration Regulations 1994 (Cth) ("the Regulations").

2. The applicant made an application to this Court for a constitutional writ seeking mandamus to direct the respondent to determine the visa application.  On 15 November 2010, Hayne J remitted the proceeding to the Federal Magistrates Court.

3. On 31 May 2011, Riley FM held that the applicant had not made a valid visa application and the delegate of the respondent was precluded from considering the application because the applicant had not adopted any of the prescribed methods of lodgement stipulated by the Regulations. Her Honour noted s 47(3) of the Migration Act 1958 (Cth) ("the Act") which provided that the Minister was not to consider an application that was not a valid application. Her Honour concluded that the application in this case was to be treated as invalid.

4. The applicant subsequently appealed the decision of the Federal Magistrates Court in the Federal Court. On 26 August 2011, Tracey J dismissed the appeal, finding that the methods of lodgement provided in item 1229(3)(a) in Sched 1 to the Regulations should be treated as exhaustive and the applicant's failure to comply with the requirements resulted in an invalid visa application which the delegate of the respondent was bound not to consider.

5. The applicant's written submissions seeking special leave to appeal from the decision of Tracey J do not identify any reason to doubt the correctness of the conclusions reached by his Honour.  An appeal to this Court would enjoy no prospects of success.  Special leave is refused.

6. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

W.M.C. Gummow
29 March 2012 S.M. Kiefel