The Department’s intransigent insistence on lawyers’ proof of ‘authority’

This ham-fisted practice of requiring the principal to provide written ‘authority’ of proof of a lawyer’s authority to act was discussed in BMF16 v Minister for Immigration [2016] FCA 1530 at [130]-[131].  Bromberg J did not make any specific consequential findings but his Honour did make some veiled criticism:

130. …the evidence establishes that the Department refused to recognise Russell Kennedy or Ms Olivia McMillan or Ms Emma Dunlevie, both lawyers and migration agents employed by Russell Kennedy, as F’s representatives in relation to his application for citizenship. At this point, it is convenient that I return to the facts which, as earlier indicated, I will now elaborate upon.

131. As I have earlier outlined, on 30 March 2016, Russell Kennedy wrote to the Department requesting that the Minister make a decision about F’s application for Australian citizenship. It is apparent that that correspondence did not satisfy the Department that Russell Kennedy was representing F in relation to his application for citizenship. That may be thought surprising given that the representation was made by a lawyer who was subject to rigorous professional obligations including a duty to act honestly: cl 4.1.2 Legal Profession Uniform Law Australian Solicitor’s Conduct Rules 2015. In response to the letter, the Department telephoned Russell Kennedy requesting a completed Form 956 “Advice by a migration agent/exempt person of providing immigration assistance”. In response, Ms McMillan and Ms Dunlevie wrote to the Department explaining that pursuant to the Reg 7G(1)(b) of the Migration Agents Regulations 1998 (Cth), they were providing notification by letter, instead of by completed Form 956, that they were acting for F in relation to his application to become an Australian citizen. On 6 July 2016, Ms McMillan spoke by telephone to a solicitor representing the Minister in this proceeding. She requested that the solicitor advise the Minister to direct its correspondence in respect of F to Russell Kennedy. She was told that the solicitor would advise the responsible person in the Department by email. Ms McMillan told the solicitor that F was in Pakistan visiting his ill mother and was expected to return to Australia on 2 October 2016 and that an interview with F could be conducted by telephone if need be.

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