Australian Immigration Daily News

Is it possible to “get another bite at the apple?” 

Or, to phrase the question in a more “legalistic” way, and in terms of Australian migration law, is a visa applicant whose first skills assessment has been rejected on the grounds that it was based on false material or a bogus document, entitled to an adjournment from the AAT so that she/he can get a second skills assessment done? 

Suppose the AAT refuses to allow an adjournment? 

If it does refuse the adjournment, has it acted so unreasonably that it is guilty of “jurisdictional error” so that its decision must be overturned by the Federal courts? 

These questions were at the heart of an interesting and important decision that was handed down by Judge Siopsis of the Federal Court earlier this week: Minister for Immigration and Border Protection v Sandhu FCA 130 (22 February 2016). 

The background facts of the case were as follows: 

The applicant sought a “skilled graduate”, subclass 485, visa.  In her visa application, she relied on a positive skills assessment from the Trades Recognition Authority which accepted that she had the skills required for a “cook”. 

However, after the application had been submitted, the Department received advice from the TRA that the positive skills assessment had been revoked due to the fact that a work reference which had been submitted to the TRA by the applicant’s migration agent had been fraudulent. 

Upon receipt of the advice from the TRA that the skills assessment had been premised on a fraudulent work reference, the Department proceeded to refuse the application for the 485 visa on the basis that the applicant had failed to comply with Public Interest Criterion 4020. 

The applicant then appealed against the refusal of her visa application to the AAT. 

Following her hearing before the AAT, the applicant wrote to the Tribunal and informed it that she had re-applied for a skills assessment.  She asked the Tribunal to defer making a decision for a period of 4 weeks, so that she could provide the new skills assessment. 

The Tribunal refused to grant the applicant the adjournment she had requested.  It took the view that because the applicant had contravened PIC 4020, and her application had been refused for that reason, a new, positive skills assessment would not affect the outcome of her case. 

Interestingly, the applicant was successful in getting the Tribunal’s decision overturned at the Federal Circuit Court level.  At that stage of “judicial review”, the Court found that the Tribunal had acted unreasonably by not allowing the applicant an opportunity to develop evidence (in the form of a second skills assessment) which she could conceivably have relied upon to support her submissions that PIC 4020 should be waived.

However, Judge Siopis took an entirely different view of the matter than had the Federal Circuit Court. 

Judge Siopis started from the position that, in determining whether the Tribunal’s refusal to grant an adjournment is “reasonable”, it is essential to accurately identify the reasons why an applicant has sought the adjournment, and the manner in which the Tribunal has responded to that request. 

In the Sandhu case, Judge Siopis found that the actual wording of the applicant’s request to the Tribunal had not in fact shown that she had sought the adjournment so that she could rely on a second skills assessment as the basis for arguing that PIC 4020 should not be applied.  Rather, it was Judge Siopis’s conclusion that the real reason why the applicant had sought the adjournment was s she could satisfy the substantive visa criterion of clause 485.221(1), namely that her skills were suitable for her nominated occupation of cook.  

It was Judge Siopis’s conclusion that in circumstances where the adjournment is sought so that the applicant could demonstrate that she met the substantive requirement for subclass 485 of having the necessary skills for the occupation, it was not legally unreasonable for the Tribunal to refuse the adjournment. 

Furthermore, Judge Siopis accepted a submission on the part of the Minister that the Tribunal had not acted unreasonably because granting an adjournment would have had “no utility”. 

In other words, because the visa application had been refused on the basis of the applicant’s failure to satisfy PIC 4020, it would have made no difference whatsoever if the applicant could have produced a positive skills assessment.  The application would have failed in any event. 

Additionally, it is worth noting that Judge Siopis observed that being able to show that one is actually able to meet the criteria for the grant of a visa (in this case, being able to show that one has been assessed as having the skills necessary for a nominated skilled occupation) cannot, at law, amount to a “compelling circumstance” that would justify not applying PIC 4020. To put it another way, getting a second, positive skills assessment on the basis of accurate and true information would not amount to a “compelling circumstance” that would rescue the application from PIC 4020. Or, stated a bit differently, the simple fact that a person is actually qualified for the skilled occupation is not , by itself, justification for “waiving” PIC 4020. 

So, what are the morals of the story: First, at least as the law stands now under the Trivedi case, the applicant is entirely responsible for the veracity of the material that is submitted in support of a visa application. Even if the applicant is not the source of the false information or bogus document, the applicant will be held responsible for submitting it as if she/he were, and PIC 4020 will come into play. So it is critical that the applicant be aware of everything that is submitted to the Department in connection with the application, and is satisfied that it is indeed true and correct. 

And also: more likely than not, an applicant is not going to get an adjournment from the AAT so that they can get a skills assessment “done over” so that they can show they meet the substantive requirements for a skilled visa.  Far better, and more advisable, “to get it done right the first time!”

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837