Australian Immigration Daily News

Just how important is it for Registered Migration Agents to keep records concerning their communications with the Department, whether by email or by post?

Especially when the communication in question is intended to notify the Department of a change in the agent’s contact details for the purposes of receiving notification of a decision to refuse a visa application.

The lesson is illustrated by a case that was recently decided in the Federal Court, Bui v Minister for Immigration and Border Protection (2017) FCA 714 (23 June 2017).

The case had a history somewhat like a “yo-yo”: The visa application was refused at first instance; the Tribunal initially decided that it did not have jurisdiction to hear an application for review on the basis that it had been filed “out of time”, the Federal Circuit Court originally found that the Tribunal’s decision to affirm the refusal was infected by jurisdictional error,  then the Tribunal again affirmed the refusal, the Federal Circuit Court then dismissed an application for judicial review, and then an appeal was taken to the Federal Court against the decision of the Federal Circuit Court.

The visa application was originally made to the Department in November 2013, so the application and associated applications for review were in train for about 3 ½ years, which just goes to show how prolonged the whole review process can sometimes be!

What happened in this case was that when the application was originally lodged, a Form 956 was also provided to the Department which provided an email address for the visa applicant’s migration agent.

Then, about 7 months after the application was made, the agent purportedly sent to the Department an email and attached letter which was claimed to have notified the Department of a change in the contact details, including email address.  In the meantime, the email address that was provided on the original From 956 was no longer used.

Can you see what is coming?

Shortly after the agent attempted to notify the Department of a change of contact details, the Department determined to refuse the visa application, and sent notice of the refusal to the email address that had been given in the Form 956 that had been lodged with the application.  The Department claimed that it had never received the email and accompanying correspondence by which the agent claimed to have notified the Department of changed contact details.  And the agent didn’t become aware of the refusal until he received correspondence from the Department sent to the new email address providing notice that the applicant had become an unlawful non-citizen and needed to present herself to the Department for a review of her “options” (which were of course extremely limited at that point!)

After the agent had become aware of the refusal, he sent an email to the Department attaching the original letter by which he had sought to notify the Department of a change in contact details.  In its initial decision, the Tribunal did not take account of this email, finding that there was “no evidence” that the agent had attempted to notify the Department of a change of contact details.  In its first decision, the Federal Circuit Court concluded that this finding had been erroneous, and that is why the FCC sent the case back to the Tribunal for redetermination.

If that history is a bit convoluted and confusing, the rest is clear.

When the case went back to the Tribunal, the FCC and then lastly the Federal Court, the applicant was not able to produce evidence that the email purporting to notify the Department of a change in the agents contact details had ever been sent to the Department.

The only document that could be produced was the letter that had purportedly been sent to the Department to notify the Department of a change in the agent’s contact details. 

But the email to which this letter had allegedly been attached could not be produced.

The consequence: there was no proof that the agent had actually given notice to the Department of a change in his contact details prior to the time that the visa application was refused.

And so, in the end, the applicant was totally “out of luck”.

No application for merits review had been made to the Tribunal within the 21 day period available for lodging an application for merits review (under section 347(1)(b) of the Act.

As the Federal Court (Judge Reeves) noted, there is case law that holds that the deemed receipt of notification of a decision of the Department, which occurs when that notification is sent to the last email address that has been given to the Department is not rebuttable  (Minister for Immigration and Multicultural Affairs v Singh and Xie v Minister for Immigration & Multicultural & Indigenous Affairs;  there is no provision in the Migration Act  which allows the Tribunal or a Court to “override or extend”  the time limit for making an application for merits review (the time limit is absolutely strict) and the filing of timely application is a prerequisite for the Tribunal to have jurisdiction to hear an application for merits review (Fernando v Minister for Immigration and Multicultural Affairs).

So there was a chain of calamity in this case: apparently, the email by which the agent tried to notify the Department of a change in his contact details for the purpose of notification of the decision on the visa application was never sent, or evidence of that email was not preserved, and consequently it was found that the applicant had not timely sought merits review, with negative consequences for her visa status in Australia.

A series of unfortunate events, indeed!!!!!!!