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

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 Cahuas Riojas [2007] VCAT 2178 (16.11.07), the Victorian Civil and Administrative Appeals Tribunal (VCAT) found a solicitor negligent for not having ensured that an application for ministerial discretion was actually posted. Here’s what happened:

It was apparent from the evidence of MrCahuas and Ms W [the solicitor] that they discussed several possible courses of action, including the possibility that Mr Cahuas could leave Australia and then seek a new visa to enable him to return.
It is common ground that they decided on the best course of action. They decided to seek ministerial intervention, and pending a decision on ministerial intervention to seek a bridging visa with a condition allowing Mr. Cahuas to work in Australia.
It also is common ground that the appropriate applications were prepared. A copy of a letter from Ms W to Minister Ruddock dated 14 July 2003, seeking ministerial intervention, is in evidence. The letter refers to 18 letters in support, said to be “attached”. There is no dispute between MrCahuas and Ms W as to preparation of the applications.

THE ALLEGED NEGLIGENCE OR FAILURE TO FOLLOW INSTRUCTIONS:

MrCahuas ascertained in October 2005 that DIMIA had no record of the applications prepared by Ms W. It was accepted by Ms W at this hearing that the applications were not received by the Minister or by DIMIA.
The copy of the letter to the Minister dated 14 July 2003 is marked “BY REGISTERED POST”, but Ms W could not produce a postal receipt for the letter. She could not produce a file note recording the sending of the letter. She had no recollection of the posting of the letter. She said that she might have given the letter to Mr Cahuas so that he could post the letter to the Minister. In other words, Ms W cannot explain how the letter to the Minister and the application for a bridging visa were not received by the Minister or by DIMIA.
On 9 July 2003, shortly prior to the preparation of the letter to the Minister, Ms W sent a letter to MrCahuas confirming her instructions. The work to be done was described in the letter as “Preparation & Lodgement of Ministerial Request and associated written submissions” [italics added by me]. I conclude that Ms W was responsible for lodging the applications. I am not satisfied that there was a variation of this instruction, for example to provide that Mr Cahuas would lodge the applications.
An inability to prove lodgement of the applications might have had a disastrous outcome for MrCahuas, namely a demand that he leave Australia. Fortunately, that did not happen. However, I find that Ms W failed to comply with her instructions by not recording lodgement of the applications in a way that would have provided, if proof became necessary, strong evidence of lodgement.
It is common ground that between July 2003 and October 2005 Ms W did not receive any response from the Minister or from DIMIA. I am satisfied that she sought to explain this fact to MrCahuas on several occasions by saying, in substance, that these things take time. She also sought at this hearing to justify her lack of enquiry by saying that Mr Cahuas continued to remain in Australia, and that the grounds for his applications improved with the passage of time. That might have been so, but I am satisfied that she did not seek instructions from Mr Cahuas as to whether enquiry should be made, bearing in mind that enquiry might have caused the Minister or DIMIA to make a decision unfavourable to Mr. Cahuas earlier than might have been the case in the absence of enquiry.
I find that Ms W was negligent in allowing well over two years to pass without seeking instructions from MrCahuas as to whether enquiry should be made as to the progress of the applications. Enquiry would have revealed that the applications had not been received, and probably would have led to lodgement of new applications.
Ms W appeared to accept during this hearing that she should have kept a proper record of lodgement, and should have discussed with MrCahuas whether to make an enquiry, although she appeared reluctant to accept that her omissions amounted to negligence or a failure to follow instructions.

In the end VCAT awarded the client $883.25 compensation in a curious decision about psychological injuries caused by the delay but was nevertheless required to pay the solicitor’s bill. Ultimately the client was successful in obtaining permanent residence through another adviser and VCAT found that the work done by the solicitor was of benefit to the client in obtaining that permanent residence as her work was used by the other solicitor.

But the case is illustrative of the need to have systems not just to record what is done but to ensure that what was meant to be done was done. One inference to be drawn from this case is that for some reason the ministerial decision letter simply was not sent. Most law firms have a mail register to record important mail that has been sent. In this case the solicitor should have ensured that the registered post receipt was sighted by her. Using any number of current computer programs with diaries she should have put a note in that diary to check the following day that she sighted the receipt.

Barbara DavidsonNovember 16, 2017

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

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