Policy VS Law

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

Departmental policy does not always reflect the law and should not be taken as law. Policy plays an important role in preparing an application as it provides guidance as to how DIBP may decide a case and can be a good indication of any underlying issues or principles in the law. One should always prepare an application with a view to satisfying the legal requirements and where possible Departmental policy.

However, sometimes Departmental policy can narrow or even broaden the limits of what is permitted or required under law. Policy that is inconsistent with the law will be found to be unlawful and will not be applied as outlined in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634 (21 November 1979), the leading case on the lawfulness of policy. Sir Gerard Brennan who was then sitting as a Presidential member of the AAT observed in Drake:

Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute (see Murphyores Incorporated Ltd v The Commonwealth (1976) 136 CLR I; Drake’s case, supra, at p 589, and the cases there cited). Also, it would be inconsistent with ss 12 and 13 of the Migration Act if the Minister’s policy sought to preclude consideration of relevant arguments running counter to an adopted policy which might be reasonably advanced in particular cases. The discretions reposed in the Minister by these sections cannot be exercised according to broad and binding rules (as some discretions may be; see, e.g., Schmidt v. Secretary of State for Home Affairs [1969] 2 Ch. 149). The Minister must decide each of the cases under ss 12 and 13 on its merits. His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative. A Minister’s policy, formed for the purposes of ss 12 and 13 of the Migration Act, must leave him free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the Minister will make in the circumstances of a given case.

The principle outlined by Sir Brennan in Drake has been widely accepted as correct and subsequently followed by the Courts and Tribunals.

Accordingly, one should take into consideration the policy relevant to a client’s file but never place policy above the law. Any inconsistency between policy and law which affect your client should be noted on the file and the client’s application should be prepared to ensure that the client meets the legal requirements and not just the policy requirements.

In Durzi v MIMIA [2006] FCA 1767, the Federal Court downplayed the role of PAM3 is in relation to the interpretation of a provision (in this case, r.1.15A):

49.PAM3 is simply a document which brings a number of relevant facts to the attention of the decision maker to which the decision maker may or may not have regard in considering whether an applicant has brought himself or herself within the criteria required in reg 1.15. It has no legislative effect. It does not construe reg 1.15. A decision maker is not bound to have regard to it or if a decision maker has regard to it the decision maker commits no error (at [49]).

In Soegianto v Minister for Immigration & Multicultural Affairs [2001] FCA 1612 (15 November 2001)

Ryan J stated:

16 Moreover, this Court has either stated or implied that it is not an error of law for an administrative tribunal to disregard general statements of policy that have been laid down for the guidance of administrative decision-makers but are not mandated by Parliament; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420-21; Ali v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 144 at 148-49. Nevertheless, it was indicated by Brennan J in Drake (No 2) (supra) at 645, that the Tribunal should adopt “a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary”. PAM 3 specifically instructs delegates (though not the Tribunal) to give it “due weight” but “decision makers must not give it the same force as law”; Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230 at [29].

Barbara DavidsonNovember 16, 2017

Policy VS Law

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