No Obligation On Immigration To Chase Up Information Or Documents From Migration Agents Or Lawyers Representing A Client
TABLE OF CONTENTS
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
Prepare Your Client For The Oath
Ideas For Chronologies For Client Files
Immigration Goes Into Hibernation On 30 June Each Year
Australia Closes Down Between Christmas & New Year
Have An Industrial Strength Office Set Up At The Office And At Home
What Is A Permanent Residence Visa?
Practice Together Or Practice In Groups
A Proper Email Account And Email Management
Undercharging And Undercutting On Fees
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
The writer was asked to give advice about a skilled visa applicant who was doing further IELTS tests in order to build up enough English to meet the time of decision criteria. But the migration agent did not tell Immigration that the client was doing this. When it came to the officer working out the points, the officer simply looked at the IELTS result on the file and found the applicant had insufficient points. If further information from the applicant is pending then the migration agent must warn Immigration that the information will arrive soon and to hold off making a decision until that happens. One may have to do this a number of times if there is some delay in sending the information.
Here is the law on this. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515 (15 December 2006), Gleeson CJ, Kirby, Hayne, Callinan & Heydon JJ of the High Court observed:
- More than once it has been said that the proceedings in the Tribunal are not adversarial but inquisitorial in their general character. There is no joinder of issues between parties, and it is for the applicant for a protection visa to establish the claims that are made. As the Tribunal recorded in its reasons in this matter, however, that does not mean that it is useful to speak in terms of onus of proof.
In the end of that passage at footnote 23 the High Court referred to a Full Federal Court decision of Re Carmel Elizabeth Mcdonald v Director-General of Social Security [1984] FCA 57; 1 FCR 354 (27 March 1984) where Woodward, Northrop and Woodward JJ concluded:
It is true that facts may be peculiarly within the knowledge of a party to an issue, and a failure by that party to produce evidence as to those facts may lead to an unfavourable inference being drawn – but it is not helpful to categorize this common sense approach to evidence as an example of an evidential onus of proof. The same may be said of a case where a good deal of evidence pointing in one direction is before the Tribunal, and any intelligent observer could see that unless contrary material comes to light that is the way the decision is likely to go. Putting such cases to one side there can be no evidential onus of proof in proceedings before the AAT unless the relevant legislation provides for it, and in the present case the Social Security Act 1947 does not.
In another case, Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (23 September 2009) (2009) 83 ALJR 1123, the High Court said this (at 1129) :
25…..The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction
These same concepts apply to DIBP decision makers and the administrative review tribunals in migration law.
In one case recently, the student had kept doing the IELTS tests trying to get a better result. But the migration agent did not inform DIAC that the student was doing these tests (ie by emailing a copy of the receipt for a proposed test). The inevitable happened, the student sat a test, achieved a score of 7 in each component, sufficient to get the correct number of points to be granted the subclass 175 visa. The sending of the result and the making of the decision crossed cyberspace. If DIAC knows a test result is pending, most officers would wait for the result and indeed it may be unreasonable for a case officer not to wait for the result. For example in Minister for Immigration and Citizenship v Li [2013] HCA 18, 8 May 2013, the High Court found that the MRT was unreasonable for not waiting for an internal review from an adverse skill assessment from TRA in circumstances where the advocate had shown that there was a good chance the internal review was successful.