Time limits for communication

 
 

Ss 52-64 of the Act and Division 2.3of the Regulations specify time limits for communicating with the Minister / Department in certain circumstances. The ultimate sanction is contained in s. 62 which reads:

 

62.       (1)        If an applicant for a visa:

(a)        is invited to give additional information; and

(b)        does not give the information before the time for giving it has passed;

the Minister may make a decision to grant or refuse to grant the visa without taking any action to obtain the additional information.

 

(2)        If an applicant for a visa:

(a)        is invited to comment on information; and

(b)        does not give the comments before the time for giving them has passed;

the Minister may make a decision to grant or refuse to grant the visa without taking any further action to obtain the applicant's views on the information.

 

Here are the earlier provisions:

 

Section 52   Communication with Minister
 

[52] (1)      A visa applicant or interested person must communicate with the Minister in the prescribed way.

 

[2.13]      (1)      For the purposes of s 52…, an applicant or interested person must communicate with the Minister about a visa application in the way provided by this regulation.

 [2.13] (2)      Except as provided by subreg (3), the communication must be in writing.

 [2.13] (3)      The communication may be oral if it is:

(a)      a communication about an application for a bridging visa; or

(b)      an enquiry about the stage reached in the consideration of a visa application; or

(c)      an oral application; or

(d)      a communication about an application for an ETA.. visa.

[2.13] (4)      A written communication must include:

(a)      the applicant's full name, as set out in the application; and

(b)      the applicant's date of birth; and

(c)      one of the following:

(i)      the applicant’s client number;

(ii)      the Immigration file number;

(iii)      the number of the receipt issued by Immigration when the visa application was made; and

(d)      if the application was made outside Australia, the name of the office at which the application was given to the Minister.

[2.13] (5)      Subject to subregulation (6), a document accompanying a written communication must be:

(a)      the original; or

(b)      a copy of the original certified in writing to be a true copy by:

(i)      a Justice of the Peace; or

(ii)      a Commissioner for Declarations; or

(iii)      a person before whom a statutory declaration may be made under the Statutory Declarations Act 1959; or

(iv)      a registered migration agent [not subject to disciplinary proceedings]  or

(B)      a person who is the equivalent of a Justice of the Peace or Commissioner for Declarations in that place.

[2.13] (6)      If an applicant (other than an applicant for a Visitor (Class TV) visa) or interested person is required or permitted to produce a document in connection with the visa application, the document and the written communication that accompanies it may be in the form of an electronic communication only if:

(a)      the document is in a class of documents specified in a legislative instrument made by the Minister as documents that may be sent by electronic communication; or

(b)      the Minister has permitted the applicant or interested person to send the document by electronic communication.

[2.13] (7)      For subregulation (6), if the Minister requires an applicant or interested person to give the Minister the original of a document that has already been given by electronic communication:

(a)      the giving of the original, otherwise than by electronic communication, is a prescribed way of communication; and

(b)      subregulation (5) applies to the original of the document.

 

[2.13] (8)      An applicant for a Visitor (Class TV) visa must communicate with the Minister about the application:

(a)      by electronic communication; or

(b)      in another form permitted by the Minister.

 

Note This regulation is subject to ss 56 & 58 of the Act, which provide that the Minister may specify the way in which additional information or comments about an application may be given by an applicant. If the Minister specifies a way in which further information or comments must be given for the purposes of either of those sections, the information or comments must be given in that way. Reg 2.13 then does not apply.

 

Reg 2.14      Where written communication must be sent

[2.14]      For the purposes of section 52 of the Act (which deals with the way in which an applicant or interested person must communicate with the Minister), a written communication to the Minister about an application must be sent to or left at:

(a)      the office at which the application was given to the Minister; or

(b)      if the Minister has notified the applicant in writing of another office in substitution for that office — that other office.

 

[52] (2)      The regulations may prescribe different ways of communicating and specify the circumstances when communication is to be in a particular way. For this purpose, a way of communicating includes any associated process for authenticating identity. [Regs 2.13 & 2.14]

 

[52] (3)      If the applicant or interested person purports to communicate anything to the Minister in a way that is not the prescribed way, the communication is taken not to have been received unless the Minister in fact receives it. [Regs 2.13 & 2.14]


[52] (3A)      A visa applicant must tell the Minister the address at which the applicant intends to live while the application is being dealt with.


[52] (3B)      If the applicant proposes to change the address at which he or she intends to live for a period of 14 days or more, the applicant must tell the Minister the address and the period of proposed residence.

 

[52] (3C)      If, in accordance with the regulations, 2 or more non-citizens apply for visas together, notifications given to any of them about the application are taken to be given to each of them.

 

[52] (4)      In this section, interested person means a person who wants, or who is requested, to give information about the applicant to the Minister.


[s53  Repealed]

 

Section 54  Minister must have regard to all information in application

 

[54] (1)      The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.


[54] (2)      For the purposes of subsection (1), information is in an application if the information is:

(a)      set out in the application; or

(b)      in a document attached to the application when it is made; or

(c)      given under section 55.


[54] (3)      Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions.

 

But this is subject to s. 55 which reads:

 

Section 55. Further information may be given

 

55.       (1)        Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.

 

(2)        Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information.

 

Therefore if a client fails to provide you with information within the time required you still submit further material to Immigration at the risk that a decision may have been made before that material arrives at Immigration. 

 

Then there is a regime similar to giving information to the Tribunal as far as giving information to a delegate is concerned.

 

Section 58  Invitation to give further information or comments

 

[58] (1)      If a person is:

(a)      invited under section 56 to give additional information; or

(b)      invited under section 57 to comment on information;

the invitation is to specify whether the additional information or the comments may be given:

(c)      in writing; or

(d)      at an interview between the applicant and an officer; or

(e)      by telephone.


[58] (2)      Subject to subsection (4), if the invitation is to give additional information or comments otherwise than at an interview, the information or comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.

[2.15] (1)      For the purposes of s 58(2)… and subject to subreg (2), the prescribed period for giving additional information or comments in response to an invitation is:

(a)      in the case of an application for a substantive visa that was made by an applicant who is in immigration detention — 3 working days after the applicant is notified of the invitation; or

(b)      in the case of an application made by a person who is in Australia, other than a person referred to in paragraph (a):

(i)      if the invitation is given at an interview — 7 days after the interview; or

(ia)      if the invitation is given in a telephone conversation — 7 days after the invitation is given; or

(ii)      if the invitation is given otherwise than in a way mentioned in paragraph (i) or (ia):

(A)      in the case of an application for a Tourist (Class TR) visa, a Subclass 600 (Visitor) visa or a Medical Treatment (Visitor) (Class UB) visa — 7 days after the applicant is notified of the invitation; or

[(B) omitted]

(C)      in any other case — 28 days after the applicant is notified of the invitation; or

(c)      in the case of an application made by an applicant (other than an applicant for a Visitor (Class TV) visa) who is not in Australia:

(i)      28 days after the applicant is notified of the invitation; or

(ii)      if the Minister so decides in the circumstances of the case — 70 days after the applicant is notified of the invitation; or

(d)      in the case of an application made by an applicant for a Visitor (Class TV) visa:

(i)      7 days after the applicant is notified of the invitation; or

(ii)      if the Minister so decides in the circumstances of the case — 70 days after the applicant is notified of the invitation.

 

[2.15] (2)      Subregulation (1) does not apply to a request for information or comments to be obtained from a third party regarding the following matters:

(a)      the applicant's health;

(b)      the satisfaction by the applicant of public interest criteria;

(c) the satisfaction of criteria relating to the applicant's capacity to communicate in English;

(d)      assessment of the applicant's skills or qualifications.

[58] (3)      Subject to subsection (5), if the invitation is to give information or comments at an interview, the interview is to take place:

(a)      at a place specified in the invitation, being a prescribed place or if no place is prescribed, a reasonable place; and

(b)      at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.

[2.15] (3)      For the purposes of s 58(3)(b) of the Act (which deals with the time in which an interview is to take place), the prescribed period is:

(a)      in the case of an application for a substantive visa that was made by an applicant who is in immigration detention — 3 working days after the applicant is notified of the invitation; or

(b)      in the case of an application made by an applicant who is in Australia, other than a person referred to in paragraph (a):

[(i) amended by SLI 2013, 32 with effect on and from 23/03/2013 - LEGEND note]

(i)      in the case of an application for a Tourist (Class TR) visa, a Subclass 600 (Visitor) visa or a Medical Treatment (Visitor) (Class UB) visa — 7 days after the applicant is notified of the invitation; or

[(ii) omitted by SLI 2009, 202 with effect from 14/09/2009 - LEGEND note]

(iii)      in any other case — 28 days after the applicant is notified of the invitation; or

(c)      in the case of an application made by an applicant who is not in Australia:

[reg 1.03 defines outside Australia and in Australia - LEGEND note]

(i)      28 days; or

(ii)      if the Minister so decides in the circumstances of the case — 70 days;

after the applicant is notified of the invitation.

[58] (4)      If a person is to respond to an invitation within a prescribed period, that period may be extended by the Minister for a prescribed further period, and then the response is to be made in the extended period.

[58] (5) If a person is to respond to an invitation at an interview at a time within a prescribed period, that time may be changed by the Minister to:

(a)      a later time within that period; or

(b)      a time within that period as extended by the Minister for a prescribed further period;

and then the response is to be made at an interview at the new time.

[2.15] (4)      For the purposes of subsection 58(4) or (5) of the Act (dealing with extending the period to respond to an invitation or attend for interview), the prescribed further period is:

(a)      if the applicant is in immigration detention — 2 working days; or

(b)      if the applicant is in Australia but is not in immigration detention — 7 days; or

(c)      if the applicant is not in Australia:

[reg 1.03 defines outside Australia and in Australia - LEGEND note]

(i)      7 days; or

(ii)      if the Minister so decides in the circumstances of the case — 28 days;

after the applicant is notified of the invitation.

 

 

 

Section 59      Interviews

 

[59] (1)      An applicant must make every reasonable effort to be available for, and attend, an interview.

 

[59] (2)      Section 58 and this section do not mean that the Minister cannot obtain information from an applicant by telephone or in any other way.

Barbara Davidson