General Issues

Introduction

Check List Using The Regulations As A Template eg - Spouse Visa

Get Enough Sleep

Visa Application And Associated Costs

Preserving Records

Record Keeping And Management - How Long Do Documents Have To Be Kept?

Initial Requirements Regarding Accepting A Retainer

Failure Of Proper File Management Can Lead To Suspension As A Migration Agent

Interpreters

Confidentiality & Notifying The Client Of Complaint Procedure

Give Your Client A Copy Of Everything

Give Your Client The Bad News Immediately

Take Care While On Holidays

Clients & English

Check Special Requirements For Offshore Visas With The Embassy's Or Consulate's Website

Don't Accept Immigration's Assertion That Decisions Have Been Made Properly

Have No Fear Of Appeals

Never Advise Your Client To Make Life Changing Decisions Prior To The Grant Of A Visa & Trust Your Instincts

Before You Set The Fee With Your Client And Before You File A Visa Application

Oral Instructions

What Can Go Wrong If You Don't Record Your Mail Properly

Positioning And Pathways And Fees (Putting All One's Eggs In One Basket)

Email & Fax Communication & Errors With Credit Cards Emerge As Troubling Issues

Preparing A Client For Merit Review Hearings Or Interviews With DIBP

Accountants And Migration Law

Passport

Berenguel - Sometimes Time Of Application Criteria Can Be Met At Time Of Decision

Bare Faced Liars & The Fraudsters

Everyone's Doing It

Bridging Visas

Visas Remain Current Until Midnight

Immigration Closes At 4pm

Looking After Secondary Visa Holders In A Visa Cancellation Process

Applying As A Secondary Visa Applicant Onshore When The Primary Visa Applicant Is Offshore

Being Illegal

Essential Prerequisites For A Ministerial Discretion Application

Last Lunge Applications

State And Territory Sponsorship

Addresses

Believing The Client

Follow Up

Make Peace With The Tax Office

No Obligation On Immigration To Chase Up Information Or Documents From Migration Agents Or Lawyers Representing A Client

Errors In Visa Applications

Spouse Visas - Unexplained Large Deposits of Money

Managing No. 8503 On Tourist Visas

Medical Consent

Statutory Declarations

Merit Review

Tax Deductibility of Migration Advice

LEGENDcom

Dates On Documents And Names On Documents

Breaking Up Is Hard To Do

Take A Statement

Case Management Software

Work Rights

Student

Check All Past Visa Applications

Revealing Convictions

Visa Holders Being On Their Best Behaviour

Email Communication With Immigration - Delete All Strings

No Without Prejudice Conversations With Immigration

Accounts Managements

What Is A Secondary Visa?

Identify Australian Citizens Who Support An Applicant

Communications

Schedule 1 Criteria

Second Thing To Do On Starting A File - Download The Relevant Part Of The Law

First Thing To Do When Starting Any File - Identify Any 'Rights Destroying' Deadlines

Lodging Paper Applications

Social Media & Smart Phones

References

Disputes About Parentage And Children

Helping People Pass The English Tests

Managing Emails

What Is The Pomodoro Technique?

Immigration Telephones Client

When Is A Visa Application Made In Australia

Apply For A Visa In Australia

No Visa Application Is An Island

The Hammock Principle

Professor James Reason[5] is an eminent industrial psychologist. He has spent his life studying human error and how to set up systems on how to reduce human error. His principal work was in the aviation industry and he was a pioneer in developing quality assurance systems. The need for quality assurance in aeronautics was obvious, it’s much harder to fix a mechanical problem when the plane is in the air with a full load of passengers.

He developed the notion of the Swiss cheese effect. He said that human errors were like the holes in Swiss cheese. Most of the time the cheese was not comprised by errors because the holes were covered by other cheese. The problem came when all the holes lined up and the holes formed a cavity passing from one end of the cheese to another. That was when a disaster occurred.

So if there is anything that I would like to convey to you in this paper, is that you must set up systems which can cope with and pickup errors. We will all make mistakes, but if your systems are good enough then the mistakes won’t cause damage.

There are a couple of general things to convey. One is the concept of ‘fresh eyes’. Develop systems where more than one person looks at the finished product. Always get someone who has had nothing to do with a document to read it from head to toe, you will be surprised how many mistakes are picked up. Secondly develop the concept of psychological ‘radar’, always be scanning documents and events to be aware of the potential for mistakes.

Next, avoid the ‘form filler’ mentality. There is no substitute for understanding and applying the Migration Act, the regulations and the criteria found in Schedule’s One and Two of the Regulations and any other relevant schedules in relation to a visa application.

Each and every time one does a visa application one should revisit the criteria. At the end of this paper, by way of example are all the regulatory criteria relevant to a spouse visa application. Below we discuss checklists. Let the regulations be your final checklist. Unless each and every criterion and relevant regulation is addressed then there is a risk your client’s visa application will be defective. So a good suggestion is to print out the criteria and relevant regulatory matters and staple such material to the front of your file. Each and every criteria and relevant regulation needs to be addressed in the evidence making up the visa application. Tick each one when the evidence is addressed and one has a perfect checklist.

This is an historical example but well illustrates the point that the regulations have to be followed. In this case the migration agent lodged a subclass 475 visa application without supplying evidence of meeting the requirements of paragraph 475.214 which was part of the time of application criteria. It reads:

475.21 Criteria to be satisfied at time of application

475.214

Either:

(a) the applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupations, and the applicant has vocational English; or

(b) the applicant:

(i) is nominated by a State or Territory specified by the Minister in an instrument in writing for this subparagraph as a State or Territory in which arrangements are established for suitable English-language training; and

(ii) has paid the required fee or charge for that training; and

(iii) has concessional competent English; or

(c) ….

(d) the applicant has competent English.

The applicant did not have vocational or competent English but had concessional English and was nominated by a relevant state or territory and therefore had to meet the terms of subparagraph 475.214(b)(ii). The agent did not supply evidence of payment of the training fee with the application hence it was immediately rejected. Obviously one cannot pay the fee the day after the application is lodged. Using the regulations as a check list would have alerted the agent to the problem.

This paper therefore is aimed at going through a whole lot of issues concerning practice and file management. It is not a manual and the writer does not pretend to have the answers to everything and importantly use your own discretion to set up systems that will work for you.

Another example of failing to read and apply the regulations before applying for a visa is Lee v Minister Immigration, Multicultural Affairs and Citizenship [2013] FCA 854, 8 August 2013 and the first instance Federal Circuit Court decision Lee v Minister for Immigration [2013] FCCA 396 31 May 2013.

Here the migration agent had lodged a subclass 892 State/Territory Sponsored Business Owner Visa when the primary applicant had not met the one in year in two residence requirement. Here is what the regulation stated:

892.215 If the applicant is not the holder of a Skilled — Independent Regional (Provisional) (Class UX) visa, one or more of the following circumstances has existed for a total of at least 1 year in the period of 2 years ending immediately before the application is made:

(a) the applicant has been in Australia as the holder of one of the visas mentioned in paragraph 1104B (3) (f) of Schedule 1;

(b) the applicant has been in Australia as the holder of a Bridging A (Class WA) visa granted on the basis of a valid application for a Temporary Business Entry (Class UC) visa, and a Subclass 457 visa was subsequently granted on the basis of the applicant, or the spouse or de facto partner of the applicant, or former spouse or former de facto partner of the applicant, satisfying subclause 457.223 (7A) of Schedule 2;

(c) the applicant has been in Australia as the holder of a Bridging B (Class WB) visa granted on the basis of a valid application for a Temporary Business Entry (Class UC) visa, and a Subclass 457 visa was subsequently granted on the basis of the applicant, or the spouse or de facto partner of the applicant, or former spouse or former de facto partner of the applicant, satisfying subclause 457.223 (7A) of Schedule 2.

The primary applicant was the wife who simply had not spent one year in two in Australia. Yet the husband had spent one year in two in Australia. This case illustrates that one must print out the regulations and tick off one by one whether the applicant meets the criteria noting that some paragraphs would not be applicable to the applicant.

Instead the client was left scrambling to appeal to the court to seek a favourable interpretation of the regulations which in the end was unsuccessful. The court waiting period gave the applicants time to re-configure their visa status and apply for other visas, for the adult offspring this was the working holiday visa.

Barbara DavidsonNovember 16, 2017

General Issues

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