Australian Immigration Daily News

A recent decision of the Federal Circuit Court re-enforces that it is critically important that Registered Migration Agents provide correct contact details for themselves on 956 forms that are lodged with the Department.  The case also again emphasizes (not that any further emphasis is needed!) that the deadlines for filing an appeal with the MRT against the refusal of a visa application will be strictly and inflexibly enforced.

The story of this case – Lutchanah v Minister for Immigration & Anor (2015) FCCA 550 (26 March 2015) – can only evoke the strongest feelings of sympathy for the visa applicant.  It is apparent from the factual history, as recounted in the Court’s judgment, that the applicant would almost surely have obtained the visa in question (a subclass 485 visa) if only emails from the Department which sought further evidence in support of the application had been brought to her attention by the migration firm that she used. Likewise, it seems apparent from the decision that the applicant would have filed a timely appeal to the MRT had she been made aware that her visa application had been refused, and that her appeal would very likely have been successful.

Instead, the visa applicant was left in the unfortunate circumstance of “being left out in the cold”: rather than securing a 485 visa allowing her to remain in Australia to work following the conclusion of her studies, it appears that the applicant will be forced to go offshore and to follow a pathway for either independent or sponsored skilled migration.  The applicant’s prospects for returning to Australia are therefore now uncertain, and, at the least, the commencement of her working life in Australia has been significantly postponed.

The misstep that led the applicant into this very unfortunate situation was a simple one and one that was seemingly very avoidable. After completing a bachelor of commerce degree and a post-graduate diploma in business administration at Australian universities, the applicant sought the assistance of a firm of migration agents to assist her in obtaining the 485 visa.  She met initially with one migration agent, who apparently left the firm shortly thereafter. Carriage of her case then passed to a second agent at the firm.  According to the visa applicant, the migration firm asked her to fill in a “blank” 956 form. 

The contact details that were provided on this 956 form were those of the first migration agent who had left the firm.  Apparently, there were no procedures in place at the migration firm to check on emails that were sent to the first migration agent’s email address from the Department.

The consequence, according to the visa applicant’s evidence before the Federal Circuit Court, was that she was not made aware of correspondence that was sent to the first migration agent’s email address requesting that she undergo a health examination.  Furthermore, the applicant claimed that she was not made aware of correspondence from the Department notifying her of the refusal of her visa application (on the grounds that she had not provided evidence of a satisfactory health examination). The applicant did not become aware of the refusal of the visa application until after the period for appealing the visa application had expired.

Most unfortunately for the visa applicant, the MRT decided that it had no jurisdiction to hear her appeal, and the Federal Circuit Court (per Judge Brown) found no basis to intervene. The Federal Circuit Court found that the Department had effectively notified the visa applicant of the refusal of her application by sending an email to the address of the first migration agent that was listed on the 956 form: as noted by the Court, under section 494D of the Act, when an applicant appoints an RMA or other authorized person to receive correspondence from the Department on her or his behalf, it is mandatory that the correspondence be sent to the RMA or other authorized person and no the applicant; and under section 494C(5), where notice (for example of a visa refusal) is given by email, the person to whom notice is given is “deemed”, or taken to have, received notice of that correspondence at the end of the day on which it was sent.  The Court found that the “deeming” provision of section 494C (5) operates whether the person to whom the email has been sent actually receives notice of the email or not.

The evidence before the Federal Circuit Court was that the Department had sent notice of the refusal of the visa application to the first migration agent (who, again, was no longer employed at the migration firm that was used by the visa applicant at the time that the visa was refused) by email, and that no appeal had been taken to the MRT within the applicable appeal period after notice of the refusal was given. Consequently, the Federal Circuit Court concluded that the MRT had properly decided that it did not have jurisdiction to hear the applicant’s case.

It is noteworthy that Judge Brown’s decision was very critical; of the visa applicant’s migration firm. He observed that it was “self-apparent” that the firm should have had better procedures in place to ensure that communications from the Department did not go astray (in other words, that it should have had procedures to check for email correspondence from the Department regarding the applicant’s case. Judge Brown harshly characterized the conduct of the migration firm as being characterized by “incompetence and negligence”.

The lessons for RMAs that can be drawn for this case almost go without saying: It is absolutely paramount, especially in migration practices employing more than one agent, that procedures be put in place so that all correspondence from the Department, whether by email or by other means, is routinely checked. In cases where a migration agent has left a firm, there must be mechanisms for ensuring that the agent’s emails are continually monitored, and that fresh 956 forms notifying the Department of the contact details of the agents assuming carriage of the case are promptly lodged.

There is also a lesson in this case for visa applicants: that is, it is important that the applicant be vigilant to follow the progress of their own visa application, and to remain in continuous contact with their migration agents so that they will be aware of all communications from the Department, all steps needed to complete their applications, and, where necessary, of whether they need to take an appeal to the MRT and the time frame within which the appeal must be lodged.

Applicants also need to mindful that the time deadlines for appealing to the MRT are rigid and inflexible, and that appeals that are lodged outside the prescribed time frames will not be entertained by the MRT, even in circumstances where the applicant has not been at fault in allowing the appeal period to expire.

This article was prepared by Michael Arch, Concordia Pacific Migration Lawyers, MARN 1386469, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.   Tel: (02) 8068 8837, Web:concordialaw.com.au