Note Taking

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

In professional negligence, bad notes means bad defence.

Here is an example from the medical area of this adage on a surgeon failing to make notes on failing to warn. In Fisher v Stapley [2005] WASCA 16 (9 February 2005), the facts were as follows:

In March 2000 Mr Fisher an Ear Nose & throat surgeon performed surgery to relieve a blockage in the patients’ left sinus. The procedure was an antrostomy. As a result of the surgery, the patient, Mr Glenn Stapley, suffered, among other things, disruption of the left orbital floor with displacement of orbital muscles, enophthalmos (the falling back of the eye into the socket) and post-operative double vision. The patient required plastic surgical repair of the left orbital floor with a cranial bone graft.

The trial Judge found that Mr Fisher (an ENT surgeon) was negligent by reason of his failure to warn the patient that a risk of the surgery was damage to his vision. The trial Judge dismissed the respondent’s further claim that the appellant was negligent in damaging the floor of the orbit in the course of the surgery.

Here is how the trial judge determined the failure to warn issue:

“There was nothing about the demeanour of Mr Stapley or Mr Fisher when they gave their evidence which assisted me to resolve the issues between them. They each appeared to be honest witnesses who were doing their best to give evidence about what occurred at the consultation on 11 August 1999 as accurately as possible.

The surgery took place approximately seven months after the consultation. Until Mr Stapley developed double vision immediately after the surgery there was no reason for either Mr Stapley or Mr Fisher to recall what was said at the consultation and there is no evidence that either of them endeavoured to do so in that period.

Mr Stapley first consulted a solicitor in approximately April 2001 and that was the first occasion that he endeavoured to cast his mind back to what Mr Fisher had told him at that consultation. Although that was approximately 20 months after the consultation Mr Stapley’s evidence was that he had no difficulty recalling what was said by Mr Fisher. In view of the periods to which I have referred I have considered whether it is likely that Mr Stapley can recall what was said at the consultation. As the consultation was an unusual event in Mr Stapley’s life which led to a significant decision, namely to have surgery, I do not find it implausible that Mr Stapley can recall what Mr Fisher told him at the consultation.

As I have noted Mr Fisher made no note that he provided any warning to Mr Stapley of the risks of the surgery and the absence of a note was an exception to his usual practice. I have also noted earlier Mr Fisher’s evidence was that he recalled seeing Mr Stapley and could remember his interest in scuba diving and the fact that the day was busy.

I accept that Mr Fisher can recall that he had a consultation with Mr Stapley and that he had a busy day. Mr Fisher has approximately 80 consultations a week. Given the very large number of consultations that he has had since 11 August 1999 and the large number he had between the initial consultation and the surgery, I consider it unlikely that Mr Fisher can recall with any detail what he said to Mr Stapley. I am confirmed in this view by the manner in which Mr Fisher gave his evidence of the warning he gave which was expressed in terms of his usual practice, not in terms of what he said to Mr Stapley and the fact that Mr Fisher confirmed that he did not remember the exact words that he used.

In considering what is likely to have occurred at the consultation I bear in mind that when a person such as Mr Fisher has a routine procedure there is a likelihood that the routine procedure will be followed. However in this case there was an aspect of Mr Fisher’s practice that clearly was not followed by him because he made no note that he gave the warning. I conclude on the balance of probabilities that through an oversight on his part caused by how busy he was on that day Mr Fisher did not inform Mr Stapley of the risk of damage to his vision resulting from antrostomy surgery. I accept Mr Stapley’s evidence of what Mr Fisher told him at the meeting.”

In other words where there is a dispute between the client and the adviser and the adviser has inadequate notes then the court will believe the client.

Here is what the Code of Conduct says about file management and taking notes:

6.1 A registered migration agent must maintain proper records that can be made available for inspection on request by the Authority, including files containing:

(a) a copy of each client’s application; and

(b) copies of each written communication between:

(i) the client and the agent; and

(ii) the agent and any relevant statutory authority; and

(iii) the agent and the Department regarding the client; and

(c) file notes of every substantive or material oral communication between:

(i) the client and the agent; and

(ii) the agent and an official of any relevant statutory authority; and

(iii) the agent and the Department regarding the client.

A couple of issues here. A migration agent has to know exactly what has been submitted to Immigration. And file notes have to be made of substantive conversations. Notes can be short and be a summary but they must be made. It is important to factor the time taken to record notes in one’s fees.

Barbara DavidsonNovember 16, 2017

Note Taking

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