An investigation can be carried out as a result of a complaint or on the initiative (or own motion) of the Ombudsman. A report can be drawn up if the Ombudsman is of the opinion that the administrative action under investigation was illegal, unreasonable, unfair. Complaints to the Ombudsman's office indicate that notification letters from DIAC may be inconsistent or confusing for visa applicants, or do not meet the requirements of the legislation.
The inquiry assessed whether DIAC's advice to applicants that their visa application had been refused complied with the notification requirements in the Migration Act and demonstrated good practice in communicating with Australian Government clients. The purpose of this investigation was to assess the quality of DIAC's notification letters and whether they complied with the requirements of the Migration Act. 1 The notification methods and deemed taking provisions are described in ss 494B and 494C of the Migration Act.
Issues relating to DIAC's compliance with these sections have been identified in many of the immigration detention cases referred to the Ombudsman. Notification letters to these applicants are therefore only required to set out the decision, the criteria the applicant failed to meet and any legislative provisions that prevented the granting of the visa. When the templates were used, it appeared that the details of the applicant were filled in either automatically by a central database or directly by the decision maker.
P ART 3—N OTIFICATION OF ADVERSE DECISIONS
The exclusion of such information could lead to an applicant being misinformed or confused about the specific legal basis for the decision or what exactly prevented the visa from being granted. Once the decision maker identifies a criterion that the applicant does not meet, a decision can be made to deny the visa. The letter asked Ms A to reapply if the reasons for rejecting the first application were rectified.
When the letter, which took the form of a tick box, appeared, two boxes were ticked under the heading 'financial capacity' with the corresponding reason being that the money had not been received for the required minimum period of six months and that the resources were insufficient. The letter could be read as indicating that the source of the money was not considered an issue by the decision-maker. The decision-maker stated in the refusal letter that Ms A's brother-in-law was not an "acceptable individual" and that the funds were therefore considered tainted.
As stated elsewhere, it is important that the notice clearly states to the applicant whether it has been assessed against all or only some of the requirements and to what extent it meets them. One of the advantages of the tick-box approach is that the information is presented in a clear and consistent manner, the criteria are set out in a comprehensive and easy-to-understand format, and the applicant is informed which criteria have been assessed and which have not. Example 1 contains an extract from a letter which cited a provision in the Migration Act that the decision-maker decided the applicant did not comply with.
Specifically, the decision maker decided that the applicant did not have the financial capacity to pursue studies in Australia. In addition, a copy of Schedule 5A 508 should have been included with this letter as the information below is an abridged version of the schedule. The proof of funds provided by you does not correspond to the proven regular income of the provider of the funds.
In written communication, these goals can be achieved by using a professional and respectful tone that recognizes the importance and impact of the decision on the recipient. If you require further information or wish to clarify any of the above, please contact this office at (08) XXXXX. Failure to record the name or other means of identification of the actual decision-maker could lead to confusion as to who made the visa decisions, which could later lead to problems related to judicial review of the visa decision or internal auditing.
However, in addition to allowing assessment bodies to ensure that the decision maker had a valid ministerial delegation, poor identification of the decision maker and the source of the decision makes it difficult for applicants to effectively access DIAC's research channels.
P ART 4—E XPLANATION OF VISA REFUSAL DECISIONS
Court/police documents relating to your pending court case, or the course of the case/conviction if completed. Regulation 573.225 requires the applicant to provide evidence of adequate arrangements in Australia for health insurance for the period of the applicant's intended stay in Australia. It provides a record of interactions between DIAC and the applicant that can be verified or countered by the applicant.
There is also a clear statement of the regulation that the applicant failed and a clear statement of findings. The letter summarizes the legislative framework, provides an overview of the relevant criteria, and then provides a brief statement of the assessment against each of the criteria. The prescribed criteria for a Temporary Business Entry (Class UC) Subclass 457 Business (Long Stay) visa in subclass 457 are set out in Part 457 of Schedule 2 of the Migration Regulations.
The applicant has not identified that he/she is to be employed in relation to a regional headquarters agreement. The applicant is not nominated by an employer who is an approved business sponsor. The following extract from a notification letter in response to a student visa application submitted offshore illustrates how instructive this can be for the applicant.
Although both examples provide a reason why the applicant did not meet the criterion, the fuller explanation is the most useful to the applicant. In the humanitarian visa stream, offshore applicants are informed that "merits review of this decision is not available and there is no requirement to provide written reasons why the criteria were not met" and that "the attached page lists the criteria you did not satisfy (or any other included in your application) for each of the subclasses.18 ADJR Act s 13 which provides a right to reasons in respect of decisions that can be challenged under this Act does not apply to most decisions made under the Migration Act d) the capacity of the Australian community to provide for the permanent settlement of persons such as the applicant in Australia.
The applicant may not be aware that this list of criteria is the first of many that must be met before a visa is granted. The letter advises applicants that they have not met a criterion in each of the subclasses. This is misleading, as applicants are actually required to meet all the criteria in only one of the subclasses.
Recognizing that the legislation only requires in these circumstances a notification containing the decision, the criterion was not met and any provision that prevented the visa being granted, DIAC's Customer Service Charter obliges decision-makers to 'provide clear and timely reasons for our decisions' and to 'provide accurate, helpful and timely answers to your needs'.
P ART 5—I NFORMATION ABOUT REVIEW RIGHTS
In any other case where this letter is sent by registered mail or by other pre-paid means, the applicant will be deemed to have received this letter within [21] calendar days, from the date of this letter. Once the applicant is deemed to have received this letter (ie the [7] working days or [21] calendar days have expired) the applicant has an additional [21] calendar days to submit the application for review. PERIOD IN WHICH TO APPLY FOR REVIEW – ON LAND APPLICANTS – 21 calendar days from the day after it is handed to you (if a decision notification letter is handed to the person); OR.
42 calendar days from the date of this letter (if the decision notification letter is delivered to a foreign address by prepaid post). For example, in the protection visa category, in which applicants have review rights with the RRT, the stated period for receipt of the decision letter was seven business days or seven days from the date of the letter (both day references were used in some cases). It was a mandatory requirement of the visa application that Mr B was sponsored by a state or territory government agency in Australia.
The sponsor has a period of 70 days after being notified of the decision to request a review of the decision from the Migration Review Tribunal. DIAC claimed it made this possible by providing the MRT information to the customer. The responsibility should not be placed on the applicant to interpret Australian migration law and information on merit assessment rights to determine whether or not they can request a review of the decision.
DIAC has informed this office that it does not have a complete and consolidated list of visa classes and. If the criteria for awarding the above applicants was that they were sponsored or appointed by a company/partnership operating in a migration area (ie Australia);. Preferably, the applicant should also be informed of the consequences to their immigration status if they apply for review or not.
When your application to remain in Australia was submitted, you were given a transitional visa to provide legal status while the application is being processed. Have made a valid application for a review of this decision (if you do, your bridging visa will remain valid until you are notified of the outcome of that review).
P ART 6—C ONCLUSION AND RECOMMENDATIONS
Management of notification letters
Notification of adverse decisions
DIAC’ S RESPONSE
