Australian Immigration Daily News

Are you ready for another case involving the AAT and “office equipment”? 

OK then, here we go! 

Suppose you have filed an application for merits review of the refusal of a visa application, but you don’t actually receive a fax notifying you of a hearing before the Administrative Appeals Tribunal. The Tribunal then proceeds to determine the matter in your absence.

Is there anything that you can do?

And does the Tribunal have any obligation to inquire to find out why you and your client didn’t attend the hearing?

These questions were dealt with in a case that was decided by the Federal Circuit Court just a few weeks ago: Singh v Minister for Immigration & Anor, (2015) FCCA 2531 (18 September 2015).

The answers provided by this decision are that, in certain very limited circumstances, there may very well be something that you can do! In fact, it just might be possible to make a successful application for judicial review, and to get the case sent back to the AAT to be “re-heard”.

The background of this case was that the applicant was seeking a Subclass 485 visa. The application was refused by the Department on the basis that a criterion requiring that the application be made within 6 months of the date of the applicant’s completion of the Australian study requirement had not been satisfied.

The applicant originally filed his application to the Tribunal (the MRT as it then was) in January 2013. Thereafter, the applicant’s migration agent exchanged a series of faxes with the Tribunal: the agent received a fax acknowledging receipt of the original application for merits review; he also received a fax rejecting the applicant’s application for a 50 % reduction of the Tribunal’s filing fee; he then paid the balance of the filing fee;  he received a fax acknowledging payment of the remainder of the filing fee;  he contacted the Tribunal to advise it of a change in his contact details; and lastly, he received a fax informing him that the Tribunal had affirmed the Department’s decision to refuse the visa application.

However, the applicant’s migration agent claimed that he had not received a fax from the tribunal, that was transmitted in March 2014 – more than a year after the application for merits review was filed – inviting the applicant to attend a hearing with respect to the review application.

Ironically enough, the agent claimed that if he had received notification of the hearing, he would have filed further evidence which would have demonstrated that his client had filed his application for the 485 visa within 6 months of the completion of his studies, and that his client therefore would have been able to prove to the Tribunal that he did in fact satisfy the criteria for the grant of the visa!

One of the primary issues before the Court was whether the Tribunal had complied with the requirements for giving the agent notification of the hearing date.  Both sections 379A and 441A of the Act provide that the Tribunal may give notice by transmitting a document by fax.  The problem for the applicant in this case was that there was evidence before the Court that notification of the hearing date had been successfully transmitted. However, the migration agent asserted that he had never received the fax. Nonetheless, the migration agent gave evidence to the Court that Telstra had not been able to confirm that the notification had been transmitted between the Tribunal’s fax machine and the agent’s fax machine.

The Court considered whether evidence that a fax has been “transmitted” is sufficient to show that proper notice of a scheduled hearing has been given by the Tribunal under section 441A. The Court followed a previous decision of the Federal Magistrates Court (SZIPL v Minister for Immigration & Anor) which had held that in order for section 441A to be satisfied, a fax must be “received by a device providing the opportunity for the communication to be seen and read by the intended recipient”. 

Because there was no evidence that the fax had actually been transmitted between the Tribunal’s fax machine and the agent’s machine, the Court concluded that it could not be satisfied that the fax that had been recorded as having been “successfully transmitted” from the Tribunal’s fax had actually been received by “a device” – namely the agent’s fax machine.  On that basis, the Court determined that the applicant had not been notified about the hearing before the Tribunal in accordance with the requirements of section 441A.

It was apparently of assistance to the applicant’s case in Singh that the migration agent offered “unchallenged” evidence that he had not actually received the fax from the Tribunal giving notice of the hearing (the migration agent was not required to appear before the Court to be cross-examined on this point); that the applicant had, through his agent, been “following up on his case” with the Tribunal (including by writing to the Tribunal immediately after he had received notice that the Tribunal had affirmed the refusal of the application that the agent had not received notice of the hearing date); and that the Court found that the outcome of the case might very well have been different if the applicant had been given the opportunity to present further evidence before the Tribunal (again, that the applicant would have been able to produce evidence that he had completed his Australian study within 6 months of the time he applied for a 485 visa).

The second issue that was before the Court was whether the tribunal had acted “unreasonably”, and had thus committed jurisdictional error, by proceeding to determine the application for merits review without making any enquiry concerning the absence of the applicant and his migration agent at the hearing.

On this point, the Court observed that “the Tribunal is not required to make enquiries about the non-attendance of an applicant in every case”. 

However, the Court also found that in the particular circumstances of the Singh case, the Tribunal had indeed acted “unreasonably” in failing to make enquiries.  The Court found that because there had been a “pattern of contact” between the applicant’s migration agent and the Tribunal, and because the agent had promptly contacted the Tribunal upon learning that the hearing had gone ahead in his absence and in the absence of the applicant, that it was clear that there had been an interest on the part of the applicant in participating in the proceedings before the Tribunal.  Therefore, the Court held that in these specific circumstances, the Tribunal should have made enquiries concerning the non-appearance of the applicant at the hearing, and should not have decided the review application without making those enquiries.

So, what are the lessons that can be drawn from this case?

Well, first of all, if there is evidence that would demonstrate the applicant’s entitlement to the visa, it would be advisable to file that evidence with the AAT as soon as it becomes available, along with a letter explaining why the evidence shows that the applicant satisfies the visa criteria, rather than waiting until a hearing date. After all, it is entirely possible that the AAT may decide the case favourably based on the papers alone.

Secondly, if there is no communication from the Tribunal for a significant period of time after an application for merits review has been filed, it would be well to make enquiry with the Tribunal to “check on the status” of the matter.

Thirdly, if it develops that you don’t receive notice of a hearing until after the Tribunal has decided a case against your client, it would be best not to “sit on your rights”, but to communicate promptly and in writing with the Tribunal to advise that you did not receive an invitation to attend the hearing. 

Fourthly, it would be well to have strong, credible evidence to demonstrate both that you did not receive an invitation to the hearing and also that you be in a position to show that if you had received notice, that the outcome “would have been different” – that if you had been informed about the hearing that you would have been able to produce evidence which would have supported your client’s claim to entitlement to the grant of the visa.

Concordia Pacific, Email This email address is being protected from spambots. You need JavaScript enabled to view it.