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Valid or invalid decision based on Schedule 3?
Has anyone experienced getting decision without merit? If so - is the decision valid or invalid ?
Experience shows that DIBP Managers always support their Case Officers - even though they make mistakes, are negligent or just incompetent.
I experienced 457 visa refusals on the grounds of "not satysfying schedule 3". The officer has not adressed her concerns, reasons behind the decision, and not reffered to any particular part of schedule 3 that has not been satysfied.
The client was lucky as we had RSMS pending in the background that was aprroved 3 days after 457 visa refusal. I have however insisted on clearing up the situation as it was myself who was supposed to explain to the client why the visa was refused. It took me few months to get following e-mail :
Sensitive
Dear Mr Ferenc
Thank you for your feedback received by the Department on 31 July 2013 and referred to me for response.
You have requested a further explanation of the reasons for the Subclass 457 visa decision made regarding your client, Mr Pxx S. Unfortunately, as previously advised, it is not appropriate for the Department to provide you with a further explanation of the decision.
I acknowledge and understand the concerns you have raised regarding the quality of the decision record. The concerns you have raised have been addressed as a training issue.
In response to your concerns, and to ensure that all issues have been investigated, this office has conducted further enquiries regarding the decision and I can confirm that it is affected by jurisdictional error. The flaws regarding this decision are also being addressed as a training issue.
I note that your client was granted a Regional Sponsored Migration Scheme (RN 187) visa on 6 May 2013. As Mr Prince Stephen is the current holder of a permanent visa, the Department does not propose revisiting the Subclass 457 visa refusal. If a Subclass 457 visa was granted to Mr Prince Stephen at this time Mr PXX’s Regional Sponsored Migration Scheme visa would cease.
I apologise for the frustration and inconvenience you have experienced. I apologise that your expectations regarding the initial response to your concerns were not met.
My contact number is (07) 3136 7495 and I encourage you to continue to utilise this contact information should you have any concerns in the future.
Yours sincerely,
Katie Williams
Assistant Manager, Brisbane 457
Department of Immigration and Citizenship
Telephone: (07) 3136 7495
Comments
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Thursday, 19 December 2013
Julie , Thanks for your comment . I do belive that some sort of public listing of officers / team leaders/ mangers making obvious mistakes and refusing to admit might help . They feel so powerfull , they can do whotever they want . Any other idea how to fight back ? It is frustrating when we know being right but also powerless . At the end of the day it is RMA who must explain to client why the visa was refused .
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Thursday, 19 December 2013Hi Pieter,
I'll add my two cents...or more... I agree with you and hear your frustration. I have experienced decisions with no foundation where it is clear that the officer has not read or seen information which then leads to an application refusal. This is certainly the case with one of my current Aged Dependent Relative cases and is is likely to be the same with countless of applications from RMAs out there in Immigration land.
Like you, a 'please clarify' was requested but not made to the officer or their manager directly, rather, to the global feedback unit raising concerns about the process and about the outcome. This received the attention of both the unit and of the manager who was 'poked' if you like by the GFU and became aware of the 'problem' and the case officer’s lack of duty of care in relation to their position (as a delegate of the Minister).
The response was apologetic as yours in the above case but with an underlying acknowledgement that they had mucked it up well and truly and if they could, they would try to revisit the case, only to later advice that they could not as an application to the MRT had already been made. Unfortunately, once a decision to refuse is made by the department, these cannot be revisited whether we argue until we are blue in the face that they should be revisited.
The next unavoidable step is merits review, which is what we have to work with, as frustrating and unfair as it seems.
My considered opinion is that if a mistake was made and there was an unnecessary refusal based on a case officer's incorrect understanding of the information and evidence and/or their own opinion outside their jurisdiction, it needs to be vigorously brought to their attention through the GFU system, seeking a formal response. This still mostly works to date (until such time someone decides it's too efficient and ends it). Having a systematic approach to raise issues and get answers is the way to go because it is a recorded process - remember, we live in a workd where if it isn't written, it doesn't exist so having such a bad process recorded internally by the department brings all kinds of possibilities and ultimately ensures an satisfactory outcome for our clients.
Due to the pressures case officers have to deal with the backlog (not justifying them, though), examples like this one will continue to happen and clients will be left in limbo (hopefully a legal limbo under a BVA regime that will let them breathe easier if onshore). Documenting these in a systematic and conducive way for a better outcome is what we need to do.
Don't know if this helps the conversation but it's a good conversation to have, when we have to explain it to bewildered and anxious clients who may naturally blame us in the first instance.
Be aware of vindictive departmental staff who take issue with the way we write to them, speak to the and dare to challenge them, though. BUT unlike our clients who may be fearful of authority, we should not be, and we must keep them on their toes and keep them honest (as honest as we possibly can, I suppose) whilst keeping ourselves protected and safe).
A fine and often difficult balance to maintain. Let's keep these issues on the table, being mindful of privacy and confidentiality at all times.
Cheers,
Bea Leoncini
MARN 0322285 -
Thursday, 19 December 2013
p.s. a well written 'please explain' backed by facts and the internal recorded process, can help to expedite merits review if it's shown that the decision was badly arrived at - I've had decisions based on submissions and clear supportive evidence with no hearing and within a shorter period of time - Another resource in our arsenal, that we must make use of.
B -
Friday, 20 December 2013The Office of the MARA publish 'warnings' about migration agents. Perhaps we need to start doing the same about case officers? It can't be a one way street.
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Friday, 20 December 2013
I agree with everything Bea has said and one point in particular. I have always found that I get further with sweetness. (As they say, you catch more flies with honey) Being polite and respectful while showing appreciation, has worked in my favour 99% of the time. Even if Im swearing and screaming (hypothetically) when hang up the phone with a case officer who I feel is being unreasonable.
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Saturday, 21 December 2013
I recently send an MRT decision to the DIBP case officer in Dubai. I explained that the MRT decision clearly stated that at the time of his decision, the relevant criteria was met, meaning the CO made a bad decision. At the time I had argued strongly. So, in sending the MRT decision I made it clear to the CO that he had made a bad decision, that my client had to wait a further 15 months to get that decision, that he will not get all his MRT lodgement fee back, that he had, as a partner sponsor, return to to Australia so as to satisfy the reasons his sponsorship was refused (not usually resident in Australia) and that this was the CO's cause directly, therefore please act immediately to grant the visa. Will that change anything? At least I had a good old rant!!
On a different matter I had requested that the MRT expedite the file as the sponsor was now separated from his wife and three young children who could not understand why Dad wasn't there. Initially the MRT said no, saying that its no different to others in his circumstances. However, without anything further from me, some 2 months later the MRT changed is mind and immediately brought the case forward, and agreed with me that a hearing was not necessary! Clients can complain to the MARA about us. Who can we complain to re DIBP officers and clearly wrong inconsistent decisions? -
Monday, 23 December 2013
I belive the only think we can do at this stage is escalating issues to GFU , if case is not reviewable I am also lodge complains with immigration ombudsman.
Cheers Piotr -
Tuesday, 24 December 2013We have an arsenal of tools that we can use, which we often forget - also, remember that if it ain't written, it does not exist' which means that ANYTHING that's not right, that we feel strongly about, that we believe is unfair (and can proven to be so) MUST be documented and sent up the line in a way that's effective, not just as a rant (not suggesting we rant, though a rant is good - amongst ourselves...) I think that's the best option and, yes, clients may have to wait for a review that never should have been and, yes, we are the ones that get 'shot' (proverbially) by clients who secretly thing we've the ones to blame initially but, you know what? this is the legal framework we have to work with AND we must use it to our best advantage. We all have differing degrees of experience and it stands to reason we should share it & support each other to move this (and other issues) forward.
Bea
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***** Merry Xmas everyone!
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Wednesday, 30 April 2014
Dear sir,
I need your help about my 457 visa .
I lodged my 457 visa offshore application on 28 june 2013 . ( nomination was approved on 31 may 2013 )
Case officer contacted me on 20 December 2013 and requsted me reference letter from employer , I provided same day .
I got second request from new case officer on 20 January 2014 .
He requested some information regarding , position , skill, relationship . I provided all information on 27 January 2014 .
Then I got another email from case officer asking me to provide all stuff I used to get diploma (RPL)
I have provided case officer completion lettrt of my diploma with college contact details and transcripts of subjects I have completed .
My MA. Said it is invalid request . Case officer doesn't have rights to ask me about material used to get diploma .
My MA email case officer and ask him legal basis of his request . But he didn't answer . Then MA contact with case officer's manager . She can case officer can request information about diploma . But she didn't reply about information asked by case officer is valid or invalid .
Its going to be 11 months since I lodged my 457 visa application .
My questions is can my case officer request me that kind of information ( material used to get diploma ) ?
What I should do ?
should i complaint about case officer ( if he incorrect ) ? -
Wednesday, 30 April 2014
Dear Pavy
This is a question you have to ask yourself. Are you confident that your study and qualification backgrounds are absolutely genuine? I would worry if I was your RMO that perhaps the case officer knows something or has suspicions that I don't about in relation to your background. Yes a CO is able to ask for information and/or documentation that he thinks is relevant to his decision. Years ago I took a call from a student who had just completed a Masters in a Gold Coast University. He was concerned because he had submitted false documentation that related to the BA to the Australia University in order to get accepted that he claimed to have, so although he had completed relevant and proper study to get the Masters, he worried that Immigration might find out about the BA supporting documents. I never heard back from him so I don't know what he did after that or what might have happened. -
Wednesday, 30 April 2014
Pavy,
11 months of "processing " definitely exceeds published service standard for 457 visa and is unreasonable in my view. It is likely your case has been referred to overseas mission for verification of your documentation used for RPL. I suggest to complain about excessive processing time and lack of communication from processing officer to Global Feedback Unit .
Kind regards Piotr Ferenc MARN 0743766 -
Wednesday, 30 April 2014
Dear. Sir
Thanks for reply . I completed my RPL diploma in 2012 . My diploma is 100% genuine . I completed all paperwork and been through all stages of RPL .
I was first contacted by case officer on 20 December 2013 . After 6 months of lodged my visa application .
I didn't submitted any experience from overseas . So case officer dosnt need to verify anything from overseas .
My application is still in progress . Decision hasn't made yet .
Can I request someone senior than case officer manager ? About my visa application abd requested documents about my RPL?
I want some one who listen us . Because case officer manager support their case officer .
I will definitely complaint about it .
Regards
Pavy -
Wednesday, 30 April 2014
Dear. Sir
Thanks for reply . I completed my RPL diploma in 2012 . My diploma is 100% genuine . I completed all paperwork and been through all stages of RPL .
I was first contacted by case officer on 20 December 2013 . After 6 months of lodged my visa application .
I didn't submitted any experience from overseas . So case officer dosnt need to verify anything from overseas .
My application is still in progress . Decision hasn't made yet .
Can I request someone senior than case officer manager ? About my visa application abd requested documents about my RPL?
I want some one who listen us . Because case officer manager support their case officer .
I will definitely complaint about it .
Regards
Pavy -
Wednesday, 30 April 2014
My college send me scan copy of all my paperwork such as assignments , reference etc. I forwarded to my MIGRATION AGENT on 22 March 2014 . But my MA said it is not necessary to send these paperwork , because he doesn't have power to assess information about material used to get diploma . Case officer only can assess completion letter and transcripts . My MA said he never received request like this before .
Case officer give me 28 day from 27 march 2014 . But my MA still arguing case officer that show him legal. Basis of his request .
Now 28 days limit finish .
What I should do , can I still able to send assignments to case officer although 28 days finished ?
Please reply sir ,
I am so confused . My employer worried about me to much .
Regards
Pavy -
Wednesday, 30 April 2014
If you are concerned and happy to forward the documents, I would just forward them. The ultimate goal is to have the visa approved. You can insist that your MA remit the documents you have supplied and he must action. We do sometimes get what we perceive as irrational requests, but unless there is a legitimacy issue, I find its easier to comply.
Ultimately, the decision is yours as to which action path you would like to take. Personally, if I knew the documents were not fraudulent, I would just remit them to the case officer.
Good luck
Julie Brown
MARN 1172990 -
Wednesday, 30 April 2014
Dear Julie
I just got reply email from my MIGRATION AGENT . He said that he will send assignments to case officer tomorrow he said if I send assignments two things can happen one he maybe grant visa or he maybe take long time to check assignments and rise more questions about assignments ( diploma )
My nomination is also going to expire on 30 June . If application not finilised till 30 June I have to spend more money to relodged the nomination and I am free from last 11 months in my country without job ..just waiting visa . I am not finically strong , I dependent on my sick father ( heart patient ) he was teacher before and now retire . His pension is enough to give my family food . My condition is so bad . I applied 457 visa . So I can earn money and able to treatment of my father . But I am not lucky person .
Please advise me everyone on this forum .
Should I send assignments tomorrow or not ?
Please please reply ...
Regards
Pavy -
Wednesday, 30 April 2014
Pavy, I am not sure what is RMA's strategy in this matter , but in my opinion the request is legitimate and suppose to be satisfied. Each document provided to DIBP BEFORE the time of decision must be taken in to consideration even though 28 days given for answer have passed.
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Wednesday, 30 April 2014
Thanks sir for reply
My RMA is not happy to send assignments to case officer he still saying case officer wrong.
I don't know who is correct or who is incorrect .
It is matter of my life . Case officer and RMA argument maybe put bad effect on application .
Can I attached my assignments through mi immiaccount ?
My RMA saying it is not necessarily but I really wanted to submit my assignments .
Please advise
Regards
Pavy -
Wednesday, 30 April 2014
I asked previously do you have any concerns with the documents, are they all genuine, only you know that. Remember Immi is entitled to ask for almost anything, you might look suspicious if you don't send them.
Immigration blog
I have had a couple of very similar instances where upon escalating my response to the Team Leader, I got nowhere and they have always sided with the case officer no matter how wrong they are.
A particular visa application document request consisted of nothing but nomination documents. The case officer tried to tell me that this was relevant to the visa and applicable to all phases of the process. I disputed this and referred to the team leader.
Where upon the team leader did not once mention these outstanding and irrelevant documents requested but decided to go down the path of I have the wrong ANZSCO allocated. (Even though an identical application with this ANZSCO had already been approved).
By the team leader ignoring the original complaint and documents requested, I assume he agreed with me on this. However, I also assume he could not lose face with his case officer so he proceeded to dissect the application to find another fault.
Nothing myself or the company themselves, could do or say would change the team leaders mind.
I have no faith that by escalating an unreasonable case officer, us as RMA's will get any different outcome. Team Leaders will always side with their case officers.