Australian Immigration Daily News

Is it risky to rely on facsimile transmissions as a means of communicating with the AAT? 

You better believe it is! 

Or as my good friend from America, Sarah Palin, former vice presidential candidate and reality TV star, would put it emphatically: “You betcha!!!” 

Suppose the Tribunal receives a fragmentary portion of a fax from you. Does it have any “duty to inquire” – for example, to send a reply fax to a number from which it receives a partial fax, and advise that “the entire message that you meant to send didn’t come through to us”? 

The answer, just as unequivocal, is “Nope! The Tribunal does not have any such obligation”. 

And it is not “jurisdictional error” which would make a Tribunal decision vulnerable to challenge in Federal Court, if the Tribunal does not inquire, and ask you “Did you mean to send us a fax? What was in it?”.  Nor is it error if the Tribunal proceeds to decide a review application without following up, and without trying to track down the fax or determine its contents. 

These principles are all graphically illustrated by a decision of the Federal Circuit Court (Justice Cameron) that was handed down earlier this week, Sweidan v Minister for Immigration & Anor (2016) FCCA 1612. 

What happened in this case? 

The background circumstances were that the visa applicant was a Lebanese-born Palestinian man who had originally arrived in Australia in 2008 on a student visa. His application for a further student visa, made in May 2010, was refused, and his application to the Tribunal for review of that decision was unsuccessful. 

Then, in December 2010, he applied for a partner visa that was sponsored by his wife, an eligible New Zealand citizen. 

What occurred next was that the dreaded “Schedule 3” raised its ugly head, and also the Minister’s delegate concluded that the applicant did not meet the definition of “spouse”. So the partner visa application was also refused. 

An application for review of the partner visa application was then made to the Tribunal. 

A hearing then took place before the Tribunal.  

Following the hearing, the applicant’s representative requested an extension of time to file written submissions.  

The Tribunal granted the extension. The Tribunal advised the applicant’s representative in writing  concerning the deadline date for providing the submissions. Through this same correspondence the Tribunal advised the representative that it would make a decision on the review application if it did not receive any further information (in other words, the foreshadowed submissions) by the close of business on the deadline date. 

This is where things got really messy!! 

On the morning of the deadline date, the applicant’s representative attempted to send submissions  to the Tribunal, consisting of a covering letter and 33 additional pages. Apparently, the fax machine used by the applicant’s representative generated a report that indicated that the fax  to the Tribunal had been “completed” (whatever that means!). 

However, the Tribunal apparently received only 4 pages of the fax that the applicant’s representative had attempted to send. This part of the fax had apparently only included four pages consisting of pay slips of the applicant’s wife.  For whatever reason, the rest of the submissions, including apparently the substantive arguments on behalf of the applicant, did not make it to the Tribunal’s fax. 

The Tribunal, proceeding on the basis that no further material had been submitted to it by the deadline that had been set, then proceeded to affirm the refusal of the visa application.  The Tribunal determined in its decision that compelling reasons did not exist not to apply Schedule 3 criteria, and therefore concluded that the applicant did not satisfy the requirements for the grant of a partner visa. 

The case then went to the Federal Circuit Court. At that level, it was argued that the Tribunal had committed jurisdictional error by failing to “inquire”, by not sending a reply fax to the fax number from which the 4 pages of the fax from the applicant’s representative had been sent asking what matter the fax had referred to and to advise that only 4 pages out of 34 had actually been received. 

This argument “crashed and burned”!!! 

The Federal Circuit Court held that the Tribunal did not have any obligation under the Migration Act to make the inquiry suggested by the applicant, and that concepts of “common law procedural fairness” did not require it to do so. 

Relying on the decision of the High Court in the case of Minister for Immigration & Citizenship v SZAI,  Justice Cameron held that the Tribunal’s “duty to inquire” is limited to factual matters or investigations – in other words, the duty is confined to matters of substance, and does not extend to procedural matters.  

Thus, while it may be jurisdictional error under SZAI if the Tribunal fails to make an obvious inquiry about a critical fact relevant to the merits of the case, there is absolutely no obligation for the Tribunal to send reminders or follow ups to applicants or their representatives about whether foreshadowed materials required to be submitted by a deadline date have actually been forwarded to the Tribunal. 

So in essence the Court held that the Tribunal has no obligation to track down partial faxes or other communications and find out what matters they relate to, or where they came from, or what was intended to be sent, before making a decision. 

Justice Cameron distinguished the facts of this case from those in SZJBA v Minister for Immigration & Citizenship (20007) FCA 1592. In that case, the former RRT had received a fax coversheet without the accompanying pages, and it would have been apparent from the coversheet that the applicant was attempting to exercise his right to comment on information notified to him under the Act.  In SZJBA,  the failure to inquire what the applicant had been attempting to do by his fax did amount to jurisdictional error. 

So the critical factor here was apparently that in this case the applicant had succeeded only in sending a fragment of a fax (the last few pages) and this fragment didn’t include a cover sheet identifying the matter or explaining the contents of the fax – all that the Tribunal received was an inscrutable 4 pages of pay slips, without any indication of the matter they related to or anything else. 

So the obvious morals of this story are: If you have a deadline from the Tribunal for making submissions or otherwise providing material in support of your client’s review application, you are relying on your fax machine at your peril.  It is obviously so much safer if at all possible not to wait until the actual day that the deadline falls to submit the materials. It is also safer to resort to the “horse and buggy” method of sending the materials to the Tribunal in paper form, by post, in advance of the deadline.   And if all else fails and you must use the fax, by all means make sure that someone picks up the phone and calls the Tribunal to make sure that the fax has actually been received. 

As the case shows, the failure to ensure that materials reach the Tribunal in time can severely jeopardise a client’s visa application, and their prospects for continued residence in Australia!!!

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