Login / Join
Immigration Daily News Administrative absurdity wins. Parliament needs to fix this, if DIBP doesn’t or won't.
- Font size: Larger Smaller
- Hits: 2848
- 4 Comments
Administrative absurdity wins. Parliament needs to fix this, if DIBP doesn’t or won't.
Although DIBP succeeded in its appeal to the Federal Court despite the fact that DIBP used inconsistent means of communications to the detriment of the applicant, the court has expressed concerns over a visa refusal for a trivial oversight.
According to the case, on the records, DIBP had the applicant’s old address, current address and email contact details. DIBP was generally corresponding with the applicant by email except when it came to the refusal decision which it sent to the applicant's old address. DIBP was even aware that the applicant did not receive DIBPs decision letter as it was returned undelivered. The applicant only found out about the decision months later and by then too late for an MRT review.
In the applicant's appeal to the Federal Circuit Court, the court found in favour of the applicant stating,“the applicant did not receive notification of the refusal of her visa application until she had asked for it some months after it had originally been sent, even though the Department had corresponded with her by email and was aware that the refusal letter had been returned undelivered. It knew that she had not received notification and knew how to contact her but did not.”
However, DIBP appealed to the the Federal Court and succeeded. Justice Robert Buchanan said he had to apply the law and find for the government, not for student Jung Eun Kim, but he suggested the “clerical shortcoming” affecting her visa could have been fixed without the need for litigation.
“This case has some unsettling features...It is hard to understand why any clerical shortcoming could not be addressed and corrected without the need for legal proceedings... If, in fact, (Ms Kim) satisfied all the requirements for a student visa, save for inadvertently failing to provide the physical evidence of the overseas student health cover which she had obtained from Medibank at a premium of $1073.06, it is difficult to see why some appropriate administrative procedure could not have been found to overcome any administrative or technical difficulty which stood in her way.” ” Justice Buchanan said in his decision last week.
Despite this, Justice Buchanan held under the law it was up to Ms Kim to update her residential address, and DIBP was entitled to send its refusal letter to the last address it had, rather than contact her by email.
Heres the link to the decision: http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2014/2014fca0390
Comments
-
Monday, 05 May 2014
It's an opinion of the decision. I first saw it in the Australian but they had a different angle: http://www.theaustralian.com.au/higher-education/visa-refusal-case-unsettling-judge/story-e6frgcjx-1226901860926
-
Monday, 05 May 2014Thank you. The court couldn't have been too unsettled ("This case has some unsettling features....") I don't see how the legislature can address the issues raised in the case. Every part of the Act and the Regs is administrative law, and administrative law is like strict liability: either your headlamps were on after dark or they were not. Nobody wants to hear why. The court could have turned to the jurisdiction excuse. It has done so in less likely cases.
-
Tuesday, 06 May 2014
How much more ruthless will DIBP be?
The original decision of the Federal Circuit Court paved the way for DIBP to dignifiedly back down and give the poor student a second chance to rectify what was truly an innocent and trivial oversight.
They however had the cruelty to appeal the decision and went on to crush the student’s dream of completing her education in Australia and possibly ruin her career.
People our business? What a cruel joke!!!
Immigration blog
Hello,
Did you get this from the law report or from the newspaper?
Thank you.