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Immigration Daily News 457 case officer being obstructive: no natural justice letterAustralian Immigration Daily News
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457 case officer being obstructive: no natural justice letter
Members might be interested in a complaint that I was copied into today. The complaint has gone in to the DIBP. Names have been removed for confidentiality reasons and replaced with XXXXXX. This is not the first complaint of its kind:
I would like to make a complaint about a case officer who I believe has failed to treat my client with fairness, open and reasonable which has resulted my client to fall into unfavourable circumstances (see below).
The case officer, XXXXXXXXXXX (Position Number: 60002844) refused a nomination application (Nomination TRN XXXXXXXXXXXXXXX) on 15 July 2014 and withdrew the corresponding subclass 457 visa (TRN: XXXXXXXXXXXX) on the same day without giving the client the opportunity of 28 days to comment on information for a Temporary Work(Skilled) (subclass 457) commonly known as IMMI Natural Justice letter which are normally given to other subclass 457 applicants.
We have since re-submitted a new nomination application (Nomination TRN: XXXXXXXXXXX) with identical documents and additional 1 statement; which later was approved on 1 August 2014.
The client, Mr XXXXX XXXXXX was a holder of a Bridging Visa A at the time of his initial subclass 457 visa which resulted him of granted a Bridging Visa C.
Due to his previous nomination refusal and auto-withdrawal of his subclass 457 visa application by the case officer without giving a 28 days invitation to comment chance, he was forced to re-submit his subclass 457 visa and having granted a second Bridging Visa C.
The circumstances will impact on him having to leave Australia with PIC 4014 if the second subclass 457 visa is refused. These circumstances can be simply avoided if the case officer provides my client with a 28 days opportunity to comment.
I would appreciate if you could look into the above and respond to us accordingly.
Comments
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Monday, 11 August 2014
Helen - I just spoke to the agent after seeing your post.
There are other 457 applicants who ticked 'auto-wirhdraw' on the 457 visa application form who were given the natural justice 28 day letter. For example this case officer did give another client the 28 day natural justice letter even though they had 'auto-withdraw' on their form. I have just spoken with the agent and they have told me that this case officer is prone refuse the applications (without offering natural justice) if the applicant for the 457 is Indian or Pakistani. Interesting. Sounds like bias to me.
The question is...why are other people given a chance whilst this client is not given a chance? -
Monday, 11 August 2014Hi Liana
The issue is whether the notification of withdrawal of the application if the nomination is refused, is a withdrawal under Section 49 of the Act see "[49] (2) An application that is withdrawn is taken to have been disposed of" I would say it is and the case officer was in error in providing "natural justice" letters to other applicants in similar situations. It may well be that in the present matter, the case officer has finally realised his/her previous errors. -
Monday, 11 August 2014
Helen that's a great point. Liana can you please ask the agent if this is the latest version or whether there have been natural justice letters provided after this one was not? I would not be surprised about anything the DIBP does or does not do at the moment.
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Tuesday, 12 August 2014
Just spoke to the agent again. The agent has an example of a 457 online application being processed by Sydney Centre of Excellence which has since been given the opportunity of Immi Natural Justice Letter. This was for a 457 application that ticked “withdraw” and is more recent than the case above. There is obviously no 'service standard'.
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Tuesday, 19 August 2014
Following up on this topic, I'm posting information on Peter Bollard's latest newsletter (and the link) which contains a clarification from DIBP about it, clarifying the issue and giving heads up to those those who may not be very familiar with a 457 application process, particularly in relation to the automatic withdrawal of a visa application if the nomination is refused and how that impacts on the right of merits review if the box wishing to withdraw the application is 'ticked'.
Part of the wording includes that there has been a change of policy and that the relevant extract is as follows:
"PAM3: Act - Code of procedure - Notification - Notification requirements - Notice of decision to refuse to grant a visa (non-character) - s66, below:
“101 Sponsorship/nomination refused/withdrawn
If the associated nomination application has been refused, the visa applicant would not meet 457.223(4) (a).
Form 1066 (Internet) asks applicants to indicate whether they wish to withdraw their visa application if the sponsorship or nomination is refused or withdrawn.
If the visa applicant indicates that they do not wish to withdraw the application in such circumstances, officers can refuse the visa immediately.
However, officers should first consider if, as a result of the refusal, the person will be s48 barred:
• If the applicant will not be s48 barred by a 457 visa refusal decision, a decision should be made and the applicant notified.
• If the applicant will be s48 barred because of a 457 visa refusal, officers can give the applicant an opportunity to withdraw their application.
If the visa applicant has indicated on the application form that they do wish to withdraw their application in such circumstances, the visa application is withdrawn from the moment any one of these circumstances occurs and cannot be considered as it is taken to have been disposed of (Act, s47(2)).”
and the link to the word document where this comes from is:
http://www.newsletter.com.au/link.php?src=YToyOntzOjQ6ImxpbmsiO3M6OTE6Imh0dHA6Ly93d3cubmV3c2xldHRlci5jb20uYXUvdXBsb2FkL2ZpbGVfdXBsb2FkL21lbWJlcl8yNzQ4OC9NaWdyYXRpb25fTmV3c2xldHRlcl80NDNhLmRvY3giO3M6MTk6Im5ld3NsZXR0ZXJfcXVldWVfaWQiO2k6MzA2MDExO30=
The link worked when I tested it. Aternatively, register to receive the newsletter or email Peter through his website. Thank you Peter.
Cheers, Bea -
Friday, 23 June 2017
Hi, friends I have a question? My 457 visa is recently withdrawn automatically due to nomination refusal. Can I appeal in MRT and can my sponsor again apply for my nomination and 457 visa ?
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Saturday, 24 August 2019
We applied for 187 and 186 in Nov 2018. Our nomination was approved in April 2019.
On 8th July 2019 we received a letter of natural justice. Immigration tried to verify my wife's(primary applicant) overseas degree. In the natural justice letter it was my name mentioned not my wife. She studied in girls college, not sure what kind of mistake is that... they tried to verify my wife's degree with my name?
My agent replied to their email in 2 days asking if it is for me or my wife and got their reply that its for my wife (may be typo error in natural justice email).
We would never provide any bogus documents to immigration. My agent replied to natural justice email formally that the primary applicant provided genuine documents. This time we provided everything like her transcripts, admit card for exams, character certificate and luckily her college still have online results available( anyone can see it on collage website by entering the roll number provided on the degree and you can see the transcript with completion of degree) we also provided the online link.
My agent is kinda worried with natural justice letter. He said though we provided very solid evidence but there is still a chance that immigration refuse our visa. He mentioned lot of time there is an ego issue with immigration.
I am very surprised what happened here.... possibilities are;
1. Immigration tried to verify my wife's degree providing my name?
2. Immigration never called my wife's collage for verification.( Immigration outsource to some companies for these type of verification).
3. The collage did not respond to immigration properly.
Can anyone help what should we do here? We don't want to go to AAT...this will take more than 1 year.
Immigration blog
Before making a complaint, the representative should check that the visa applicant had not indicated on the application that if the nomination is refused the visa application wll be withdrawn. If that is the case, the visa application will be withdrawn without any further contact by the case officer. The form is very clear and explicit about the consequences. See page 2 of the online application form under the heading "application withdrawal"
If the applicant indicated "no" then case officer has exceeded his/her powers and complaint is in order. You could argue jurisdictional error and have the withdrawal reversed.