Australian Immigration Daily News

A new decision of the Federal Circuit Court emphasizes how important it is for RMAs to confirm that their electronic communications with the Department have actually been received. The decision – Bui v Minister for Immigration & Anor (2015) FCCA 1931 (17 July 2015) also illustrates why it is essential for RMAs to keep good records of their email correspondence with the Department (among other things, the Department might claim that it “never got the email” or might fail to take note of a notification of a change in the RMA’s  email address, which could result in issues with timely notification of a decision on a visa application – as discussed in this article!!). 

The background of the Bui case was that the visa applicant had engaged a migration agent to assist her with an application for a Temporary Business Entry visa application.  The application form that was submitted to the Department confirmed (in November 2013) that the migration agent had been appointed, and provided the agent’s “then-current” email address for receiving communications from the Department.  Several months after the application was lodged (in mid-June 2014), the agent sent a letter to the Department by email, which was accompanied by a “Form 956”. Both this letter and the 956 Form stated that the agent’s email address had changed.  However, this email apparently did not reach the Department (or at least the Department so claimed when the case came before the MRT!!!).

Shortly after the migration agent had attempted to notify the Department of the change in his email address (in late June 2014), a Departmental officer refused the client’s visa application.  Notification of the refusal was sent by email and by post to the address that was given on the original application form (and not to the new email address that had been provided by the agent). This email did not come to the agent’s attention because the address that had been provided on the application form was no longer “active” (it was described in the Court’s judgment as being “defunct” at the time that the visa application was refused).  Consequently, the allowable period for seeking review of the refusal of the visa before the MRT expired without an application for review being made.

About 2 months after the visa application was refused (in August 2014), the agent received an email from the Department at the new email address that he had provided to the Department.  The email from the Department advised that his client had become “unlawful” and needed to present herself to the Department to discuss her options.  The Department’s email also invited the agent to re-submit the email which had given notification of the change in his email address so that the refusal of the visa application could be “re-notified”. The agent then (in August 2014) re-sent the original email (which had attempted to notify the Department that the agent’s email address had changed) back to the Department along with the attached 956 Form.

Following re-notification by the Department of the visa refusal (in August 2014), the applicant sought to apply for review of the decision before the MRT (also in August 2014).  However, the MRT concluded that the application for review had not been lodged within the permissible time period – namely, within 21 days of the original notification of the refusal of the visa in June 2014 to the agent’s “disused” or “defunct” email address.  The MRT found that there was no evidence in the Department’s files that the migration agent had informed the Department that his email address had changed before the decision was made to refuse the visa application.  Consequently, the MRT found that it had no jurisdiction and dismissed the appeal.

The Federal Circuit Court determined that the MRT’s conclusion that there was no evidence that the agent had notified the Department about the change in his email address was incorrect. The Court found that the second email that the agent had submitted to the Department (in August 2014), by which he re-sent the original email (of early June 2014) notifying the Department of his change of email address and forwarding a “new” 956 Form with the new email address, was in fact evidence that notification of the change of email address had been made.

The Court held that the MRT’s finding that there was no evidence that notification of the change of the agent’s email address was an error of law, because such evidence did exist.  The Court also found that even if the MRT’s determination that notification of the change of email address had not been given were to be characterized as a “factual finding” (rather than an “error of law”), it was nonetheless a factual error that had in turn led to a legal error (namely, a conclusion by the MRT that it lacked jurisdiction). Accordingly, the Court decided that the MRT had committed jurisdictional error by failing to give consideration to relevant evidence (namely, the second email from the agent which indicated that the agent had notified the Department both by email and by post of the change in his email address).

It is certainly hard to imagine what more the migration agent could have done in this case: he provided timely notice to the Department about the change in his email address before his client’s visa application was decided. And he gave this notice both by email and by post (in fact, it appears that this postal correspondence must have been the means by which the Department learned that the agent had changed his email address when it wrote to him in August 2014 to notify him that his client had become “unlawful”). 

It is something of a mystery (whose explanation is not provided in the Court’s judgment) as to why the Department did not use the new email address when it originally issued notification of the refusal of the application in June 2014. What surely seems to be the case here is that “one hand of the Department didn’t know what the other hand was doing” – obviously, someone in the Department was aware that the agent’s email address had changed, or the Department would not have been able to email notification to the agent claiming that his client had become “unlawful”.

In any event, there are lessons for RMAs that grow out of this case: It really is “best practice” when notifying the Department of a change in contact details to give that notice not only by email but also by post; and even more importantly, to keep a record that notification of the change of address had been given to the Department on the file. While in this day and age of electronic communication there may be a multitude of ways that emails can “go astray”, these practices should help to protect clients against the type of “email fiasco” that created problems in this case.  And good record-keeping will help an RMA salvage the client’s position before the Department/AAT (MRT)/courts if this type of “snafu” by the Department should happen!!! 

Concordia Pacific Migration Lawyers, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837