The Review Deadline and the Missing Notification
Nadia is an RM. Her client Ravi applied for a Subclass 485 visa. The Department sent a request for further information to the email address on the application form, which was Ravi's old work email that he no longer uses. The request gave 28 days. Ravi did not see it. The Department refused the visa on 10 July, and the refusal notification was sent to the same old email and also uploaded to ImmiAccount. Ravi discovered the refusal on 1 September when he checked his account. The review deadline for the relevant tribunal is 21 days after the day the person is notified. Ravi tells Nadia he wants to appeal and asks her to 'backdate' a statement saying she never received the notification so the deadline can be extended.
1. Advise Ravi on the review deadline and the notification issue.
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The starting point is when notification is taken to have occurred. The refusal was sent to the email on the application and uploaded to ImmiAccount, so the Department will likely treat notification as having occurred at that time, meaning the 21-day review period ran from around 10 July and expired in early August.
Reasoning:
- The fact that Ravi did not read the email does not necessarily change the notification date, but there may be arguments about whether notification was effective, particularly if the contact details were not updated or the Department knew of the new address.
- Nadia should check the actual notification documents, the ImmiAccount record, and the date the decision was taken, and calculate the deadline precisely.
- If the deadline has passed, options may include applying for an extension of time (if the tribunal permits) and explaining the circumstances, or other remedies. Nadia should be realistic about prospects and not promise success.
- She should record the dates and the advice.
2. How should Nadia respond to Ravi's request to 'backdate' a statement?
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Nadia must refuse. Preparing a statement she knows to be false, or backdating a document to create a false impression about notification, is dishonest and would be misleading conduct.
- She can instead prepare an accurate statement of what she knows: when she was engaged, what contact details were on file, whether she received any correspondence, and what steps she took.
- She should explain to Ravi that a false statement could damage his case and expose both of them to serious consequences.
- She should document the request and her refusal.
3. What should Nadia have done differently, and what should she do now about the contact details?
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Nadia should have confirmed and updated Ravi's contact details at engagement and monitored ImmiAccount for correspondence, and advised him to check it regularly.
Now she should:
- Immediately update the contact details with the Department and confirm in writing.
- Obtain the full decision record and any correspondence.
- Advise Ravi in writing of the deadline, the options, the costs and the risks.
- Keep a clear file note of the timeline and the advice, since the notification issue may be central to any extension application.