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Is a parent visa 103 lodged by fax valid?
I lodged parent visa (by the way my in-law's) subclass 103 on Friday 30.06.2014 by fax.
It is my understanding that The Electronic Transaction Act over rides schedule 1 however acting assistant director of Perth Parents Processing Centre I spoke to today, claims that their view is different as the fax number for lodgement of 103 visa is not publicly advertised.
Is it right?
Extract from PAM 22 Electronic Lodgement
22.1 The ET Act
22.22 The Electronic Transaction Act 1999 gives the public the option of lodging applications electronically ( that is , by fax, email or 'other electronic means') provided any agency-specific IT requirements are met.
Detail of these IT requirements must be readily available to the public through such means as information sheets, application forms and websites.
For offices of the department in Australia these IT requirements are that applications are lodged by fax using the fax number of appropriate office .
22.3 Effect of the ET Act on valid application requirements
22.4
For certain visa subclasses , Schedule 1 , regulation 2.10 or regulation 2.10AA requires the application to be sent by mail or courier to a specified address. This requirement, however , does not prevent the option of electronic lodgement of applications for those visa subclasses. This is because the the Electronic Transactions Act prevails over the Migration Regulations . Therefore , the department's IT requirements for lodging applications for these visa subclasses electronically must be also available to clients along the lines outlined in section 22.1 The ET Act.
It is my understanding that any fax number provided by DIBP on the website is suitable for lodgement of valid application under The ET Act .
Is DIBP right saying, that there was no specified fax number advertised on line for purpose of lodgement visa subclass 103, therefore the Act does not prevail Migration Regulations?
Any comments will be highly appreciated . Anyone can assess chances with the AAT?
Comments
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Thursday, 05 June 2014Also look at the ETA s11(1)(c) - you have to meet the IT requirements of the Commonwealth entity. I wonder if that PAM reference constitutes the IT requirements of DIBP?
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Sunday, 28 September 2014
Hi,
Did someone figure this out?
I am also in a situation where my last option to make a valid visa application is to fax the paper application before midnight Sunday 28th September. Immigration website provides option to apply online(which in my case is not valid) or by paper application(in Person, by post) which is too late now. I am going to fax my application and visit the Department on Monday 29th September.
See what happens?
Immigration blog
Hi Piotr
What you found is pretty interesting and would be a nice little intellectual challenge, to look at it. Alas, I do not have the time to delve into it deeply.
However I would suggest you look at s11 of the Electronic Transactions Act 1999 ('ETA') and read it in conjunction with Schedule 1 of that Act.
Having very briefly glanced at the legislation, my understanding is that while paper documents are permitted by the ETA to be submitted electronically to a government department, Schedule 1 of the ETA specifically excludes migration documents. In particular, it excludes migration documents ...required or permitted to be produced in connection with the operation of a provision of a migration law that relates to an application for, or the grant of, a visa
The PAM document says under what conditions the ETA permits the submission of documents electronically. My interpretation, however, is stricter than the PAM document: that the ETA will not apply to migration requirements. So when applying it to your situation of lodging a 103 visa application, Schedule 1 of the Migration regulations permits the application to only be posted or couriered. You can't even hand deliver it to the office! Thus it cannot be submitted electronically because the ETA excludes migration applications.
I would love to hear what our lawyer trained and other colleagues think of this. Feel free to let me know if I've misinterpreted the ETA. I'm here to learn as well...
For your in-law's sake Piotr, I hope I'm wrong!