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

In one case Immigration asserted that a decision had been sent by email. When the migration agent went to check progress of a decision he was told the decision had been sent well over a month ago by email.  By the date the agent made the inquiry the date for appeal to the MRT had passed.

The agent made inquiries from his Internet Service Provider (ISP) and the ISP’s investigation concluded that no email had been sent to the migration agent’s email from Immigration on the day Immigration alleged the notice was sent. The agent got a written report from the ISP to that effect. After a long and tortuous process Immigration acknowledged that Immigration could not prove that the email notice was actually sent on the day Immigration said it was sent.  In the meantime local Immigration officers said the client had become illegal and was placed on a bridging visa E etc.

But once the notice was resent, it meant that the client was never illegal and was validly on a bridging visa A!

So if you did not receive a decision notice by email then get a written report from ISP and if it proves the email was not sent then challenge the date of the notice.

The other case concerned the posting (ie mailing) of a notice of decision. In Han v Minister for Immigration [2007] FMCA 246 (5.3.07), DIAC could not actually prove that the letter setting out the notice of decision was actually posted within 3 days of the date of the letter.  Here is what the Migration Act says about this:

494B Methods by which the Minister gives documents to a person

 (1) For the purposes of provisions of this Act or the regulations that:
(a) require or permit the Minister to give a document to a person (the recipient); and
(b) state that the Minister must do so by one of the methods specified in this section;
the methods are as follows.
…

Dispatch by prepaid post or by other prepaid means
(4) Another method consists of the Minister dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents.

494C When a person is taken to have received a document from the Minister
(1) This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A).
…
Dispatch by prepaid post or by other prepaid means
(4) If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia 7 working days (in the place of that address) after the date of the document; or
(b) in any other case – 21 days after the date of the document.

Here is what the Federal magistrate found:

1. As 494B(4)(a) makes clear, however, the dispatch of the relevant document must take place within three days of the date of the document. There is no express finding by the tribunal that the decision letter was dispatched within three days of the date expressed on its face. Such a finding is implicit in the tribunal’s reasons – that must be so because without such a finding, there can be no finding that the letter was given to the applicant by one of the methods prescribed by s.494B.
2. There was, however, simply no evidence before the tribunal that supports such a finding. The material that was before the tribunal permitted of a finding that the decision letter had been dated (s.494B(4)) and that it had been dispatched by prepaid post (s.494B(4)(b)) to the last address for service provided to the first respondent by the applicant for the purposes of receiving documents (s.494(4)(c)(i)). But there was nothing that would permit of any inference that the dispatch took place within three days of the date of the letter.
3. The error operated so as to lead the tribunal to deny itself jurisdiction. Having regard to the discussion in NABE v Minister for Immigration (No 2) [2004] FCAFC 263; (2004) 144 FCR 1[9] and the authorities therein cited I am satisfied that the tribunal’s error might be described as an error as to a jurisdictional fact. The tribunal made a finding of fact that was not supported by any evidence and thereby denied itself jurisdiction to hear the application…

…

1. Even if I were to accept it, the decision maker’s evidence does not establish that the decision letter was dispatched within three days of its date. The highest the evidence reaches is that the decision maker prepared the decision letter for posting and placed it in the ‘mail basket trolley’. The first respondent argues that placing the properly addressed envelope containing the decision letter in the mail basket trolley is all that is required for there to be a “dispatching” for the purposes of 494B(4) of the Act.
2. True it is that 494B(4)(b) provides for dispatch by prepaid post or by other prepaid means, but in my view more is required than has been pointed to by the first respondent. Posting is not the only alternative, and one might posit the example of dispatching the decision letter to a visa applicant by courier service. But at the very least, it is necessary for the envelope to pass from the possession of the first respondent (or his authorised officers or employees). Otherwise, (and to carry the first respondent’s argument to its logical conclusion) once the decision maker hands the envelope containing the decision letter to another employee or officer of the Department (say, for the purposes of placing it in the mail basket trolley on behalf of the decision of maker) there will have been a “dispatching” of the decision letter. Yet it is conceivable that an envelope containing a decision letter might leave the possession of the first respondent more than three days after the date of the letter, or never.
3. In my view, it is unnecessary to consider whether I should make my own finding as to whether the decision letter was dispatched by the first respondent within three days of its date, because the evidence proffered by the first respondent would not permit of a positive finding for the Minister.
4. In the event that I am wrong about that and it is incumbent upon me to make the necessary finding as to the dispatching of the decision letter, I am not satisfied by the evidence that the decision letter was dispatched within three days of the date that it bears. Consequently, I find that the decision letter was not dispatched as prescribed by 494B(4) and so, the period within which the applicant might have commenced his application for review did not end on 29 July, 2005.
5. The tribunal found that the applicant received a copy of the decision letter when it was handed to him by an officer of the Department on 2 August, 2005. There is no issue about that. I am satisfied that the period within which the applicant might have commenced his application for review began on that day. His application was filed on the next day. It is, therefore, plainly within time.

 

So in Han, Immigration simply could not prove that the letter was actually posted!