Editor's Blog

Court finds that oral notification to DIBP to vary the RMAs preferred method of communications is sufficient.

The recent Federal Court’s decision suggests that no further written notification to DIBP is required to vary original written notice to DIBP. Oral notice is sufficient, provided all the correct communication information (i.e. email, fax and/or address) had been properly provided to DIBP previously.

Briefly, in that case, the applicant’s visa refusal decision was sent by the DIBP Case Officer (CO) to the RMAs postal address whilst the RMA was overseas. The RMA was unaware of this notice. By the time the RMA returned from overseas, the timeframe for lodging an appeal to the Tribunal had expired. After a series of failed appeals the applicant took the matter to the Federal Court.

In court, it was argued that the RMA had met the CO at one of the client interviews and made an oral request that the CO send any notice to the RMA's email address as the RMA would be overseas. But the CO forgot these oral instructions and sent the notice to the RMA's physical address only.

Section 494D of the Migration Act 1958 (Cth) (the Act) deals with the appointment of an ‘authorised recipient’ and sets out the parties’ obligations in respect of notifications.

The Court held that the oral notice given by the RMA to the CO effectively varied the written notice originally given to DIBP on Form 956. The Courts judgement stated that the oral notification was “effective to alter the manner in which the Minister’s delegate was required to notify the appellant’s migration agent of the decision to refuse to grant the appellant a protection visa and to render ineffective the first purported notification under s 66(1) by the Minister’s delegate.”

The Migration Alliance notes that this is a significant decision on an important question concerning the type of notice required under s494(D) of the Act.  However, best practice does suggests that all communications with DIBP are done in writing, where possible. Appeal timeframes are critical. And no doubt, there are difficulties that can arise with the question of proof.

Case Reference: MZZDJ v Minister for Immigration and Border Protection [2013] FCAFC 156

Jerry Gomez Editor Migration Alliance, RMA (MARN 0854080) and Lawyer.