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Be careful when communicating with Immi!

Following a recent decision of the AAT involving a long term PR ( 70 yrs) and what appears to be a communication problem...there is a lesson in this for all of us...

http://classic.austlii.edu.au/au/cases/cth/AATA/2020/31.html

In this case the Applicant appointed his Solicitors and a form 956 was on foot and communication was opened...at some stage in the future the same solicitor engaged in further communication with the Department but used a different email address  ( it was different to the form 956) and no new or fresh 956 was put on foot.

There was an exchange of emails between the Department ( VACCU) and the Solicitor, using the new email address....subsequently the Department notified of the decision to refuse to revoke the cancellation and sent the email decision to the new email address of the Solicitor.  (That was different to the form 956 nominated email address)

For reasons that are not clear an application for review by the AAT was filed out of time!

The legal issue was notification but I think that the lesson here is as follows:

1. Nominate a contact address on a form 956

2. Do not communicate from any other email address

 

If I were the Solicitor of record I would argue that the form 956 constituted the relevant authority of the appointment and the consent to communicate by email was necessarily limited to the email address nominated on the form 956 and that any incidental communication did not constitute authority or consent to communicate to an address other than the one nominated on the form 956.

First rule of fight club?

Keep it Simple Stupid.(KISS)

OR

If you absolutely positively must communicate with Immi with a different email address ask your IT person to ensure that all emails whether sent to your old email address or new email address all appear on the same screen in front of you....

 

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  • John Peter Mendoza
    John Peter Mendoza Thursday, 23 January 2020

    Walker and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 31 (14 January 2020)

    Opinion

    1) I would consider appealing the decision that the tribunal did not have jurisdiction to hear Mr Walker’s case on the basis of jurisdictional error.
    The grounds of the appeal involve 2 categories of jurisdictional error:
    i. a failure to take a relevant consideration into account in the exercise of a power, and,
    ii. a breach of the rules of natural justice occurred in connection with the making of the decision.

    2) As the visa was cancelled on character grounds under s 501of the Migration Act 1958 the Federal Court of Australia has original jurisdiction to hear the case as at s 476A (1)(c).

    3) Mr Walker was in prison at the time when notification of a delegate of the Minister decided not to revoke the visa cancellation decision.

    4) At 22 Issues to be resolved: The Tribunal’s jurisdiction to consider Mr Walker’s application turns on whether he was notified of the delegate’s non-revocation decision in accordance with s 501G of the Migration Act 1958.

    5) Mr Walker had an authorised recipient, Lawyer and Migration Agent Ms Danielle Heable. On 29 March 2019 an email sent to Ms Heable notified that a delegate of the Minister decided not to revoke the visa cancellation decision. The tribunal relied on s 494D (2) to hold that Mr Walker received the decision from the department, ‘If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person’. As the document was sent by email at s 494C (5) the person is taken to have received the document at the end of the day on which the document is transmitted.

    6) We would ordinarily expect an authorised recipient who is a lawyer and/or migration agent would discharge their duty expeditiously in the best interests of the client. And this is surely the intention of the legislation at s 494D to assist in the communication process between the department and first person.

    7) But the circumstances of this case are not ordinary. Mr Walker was in prison. There is no available information about whether Mr Walker was able to communicate or had regular access to communication with the outside world. We do not know if Ms Heable tried to fulfil her duty to her client or whether she was prevented due to his incarceration.

    8) The tribunal received credible notice from the prison that Mr Walker was not notified of the non-revocation decision in accordance with s 501G. On 11 September 2019 the Offender Management Supervisor at Loddon Prison and Middleton wrote to the Department advising that Mr Walker had ‘recently changed caseworkers’ and had told his caseworker he was unaware of the outcome of his review application.

    9) In other words the supervisor was so concerned that something was wrong with the process of notifying Mr Walker of the decision that he felt compelled to contact the department on Mr Walker’s behalf.

    10) The tribunal did not take the letter from the supervisor into account in making the decision. The tribunal held to the legislative view as at s 494D that as Mr Walker was taken to have been given the document then he did in fact receive the document.

    11) Section 494D relies on an assumption of normal channels of communication between an authorised recipient and first person. But when normal channels of communication have broken down the purpose of parliament can be said to have been frustrated. Common sense tells us that in a communication breakdown it is questionable the first person can definitely be taken to be notified by the authorised recipient.

    12) The communication in writing from the supervisor should have raised the concern of a potential breach of the rules of natural justice. The only question the tribunal asked about the supervisors intervention was whether the representative of the applicant, Mr Robinson of AR Law Services, knew anything about it. To which Mr Robinson replied he had no instructions on this.

    13) All administrative decisions are subject to the rules of natural justice as at Administrative Decisions (Judicial Review) ACT 1977 - Sect 5 (1) (a). Natural justice is a cornerstone of the legal system. Not only must justice be done, it must be seen to be done. The mere fact that a decision affects rights or interests is sufficient to subject the decision to the procedures required by natural justice.

    14) The consequence of not taking the relevant consideration into account is that Mr Walker has been denied a fair hearing. The right to a fair hearing requires that individuals should not be penalised by decisions affecting their rights unless they have been given prior notice of the case, a fair opportunity to answer it, and the opportunity to present their own case.

    15) One may be forgiven for thinking that Mr Walker’s long criminal history that includes being an escapee from Pentridge Prison in 1966 with the notorious criminal Ronald Ryan has enabled an element of bias to influence the tribunals decision.

    16) Mr Walker is a citizen of the United Kingdom. He arrived in Australia in December 1949 at the age of eight under the Commonwealth Child Migration Scheme and has resided in Australia for approximately 70 years. Australia is all Mr Walker knows. He has been a permanent resident longer than most Australian citizens. The decision not to revoke the visa cancellation decision poses perilous consequences for the usual place of residence of an elderly ‘Australian’ man.

    17) I submit the Tribunal does have jurisdiction to consider Mr Walker’s application. The tribunal received credible notice from the prison that Mr Walker was not notified of the non-revocation decision in accordance with s 501G. Hence the nine day time limit for a review of the decision did not begin to run at the end of 1 April 2019.

    18) The tribunal failed to take a relevant consideration into account in the exercise of a power that amounts to judicial error. The consequence of this error is a breach of the rules of natural justice. I submit the Tribunal re-consider when Mr Walker was taken to have been given notice of the decision by the department. I suggest this is on 11 September 2019 when the department sent a ‘courtesy copy’ of the decision to the prison.

    John Mendoza MARN 1801107

  • Guest
    Anh Donald Thursday, 13 February 2020

    John
    I enjoyed your erudite comments. Learnt a thing or two. Please continue with your posts!

    Reply Cancel

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