Australian Immigration Daily News

Is there really any point in checking the case law before answering a client’s question? 

Well, to borrow the famous expression from former US vice-presidential candidate and reality TV star Sarah Palin: “You betcha!” 

Yep, I know that my fellow RMAs out there in the reading audience would heartily agree with this: sometimes, hard though it may be to believe (just kidding!) the meaning and likely application of the Migration Act and the Regulations isn’t clear! 

So the case law can really help understand how a client’s situation, what solutions may exist and what the likely outcomes are.  It sure beats “tea-leaf reading”! Of course, if looking at Austlii “makes your head spin and your eyes glaze over”, you can always read my articles and the articles written by my colleagues on the MA blog! (Well, just trying to get you to laugh again, it is Friday after all!). 

Let me share a story from my own work about how looking at the case law can really help: 

I got a call last week with the following situation:  The client had completed a course of study in Australia and had then applied for a Subclass 485 (Temporary Graduate) visa.  The application had been refused by the Department on the basis that the client had not complied with the criterion in clause 485.223 of Schedule 2, which requires that the 4485 application be accompanied by evidence that the applicant had applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority. 

The client told me that he had had applied for the skills assessment after he had lodged his application.

And the problem was, by the time that the Department got around to refusing the application, it was too late simply to re-lodge a new application because other criteria for a 485 visa require that the application for the visa must be filed within 6 months of the time that the applicant satisfies the “Australian study requirement”.

The client told me that when he had received notification from the Department that his application had been refused, he had “panicked” and had filed an application for merits review with the AAT.

So his question to me was: “Can you help me? What are my chances?” (Fans of the movie Alien may recall that the crew of the spaceship Nostromo were asking the same question after a very nasty, funnel-web spider like creature made its way on board! Were my client's chances better than that of the doomed crew?)

Well, the inner trial lawyer in me (!!!) thought: “Hmmmmm. Merits review is de novo, right? So the Tribunal Member “is standing in the shoes” of the Department and looking at the matter afresh.  So maybe, just maybe, it’s ok if the client can show that he has had a satisfactory skills assessment by the time that the matter is decided by the AAT.  That should make sense, right? I mean, the concern ought to be whether the client can show that he (in this case) has the skills necessary for the occupation that is nominated in the 485 application.  If he does, shouldn’t the purpose of the Regulations be met, and shouldn’t everything be “all g”(ood) as my son loves to say in his texts?

Hang on! I’d better have a look at the case law before I ring the client back.

And guess what! The answer that I got after checking Austlii wasn’t good! In fact, the client’s prospects looked “poor”, in lawyer's terms.

I found a case from the Federal Court that is directly on point, Patel v Minister for immigration and Citizenship (2011) FCA 1220 (31 October 2011).  In that case, the Federal Court considered the proper interpretation of former clause 485.214, which was  practically identical to the current clause 485.223.  Old clause 485.214 had stated that the Minister must be satisfied that the applicant has applied for a skills assessment.  In other words, just like current clause 485.223, the regulation that the Federal Court looked at in Patel  provided that the requirement for a skills assessment was a “time of application” requirement.

The holding in Patel’s case was that the proper interpretation of clause 485.214 was that the application for skills assessment must have been made by the time that the application was lodged. Thus, even though the applicant in Patel had a positive skills assessment by the time that his case came before the (then) MRT, he was “proverbially “out of luck”.

To make matters worse, I also found an MRT decision relating to the current regulation, clause 485.223: 1409546 (2014) MRTA 2402 (6 October 2014).  The fact pattern in that case was identical to my client’s situation and to Patel’s case:  the applicant had completed a course of study in Australia, and had then made an application for a Subclass 485 visa.  It was the applicant’s story that she had called the Department before she lodged her application (which she did on her own) and that she was told by a Departmental officer that while she was required to have her IELTS test results at the time of her application, “everything else could be provided afterwards”.  The applicant claimed that this inquiry to the Department had led her to believe that she could apply for the skills assessment after she lodged the 485 application.

Unhappily for this applicant, the Department refused her application. She was advised by the Department that she should withdraw the application and re-apply. But – bad news! Just like the client who called me, by the time her application was refused by the Department, more than 6 months had passed since she had finished her studies, so she could no longer satisfy the criteria for the grant of a 485 visa!

And more bad news: the MRT had held that it was bound to follow the decision of the Federal Court in Patel’s case.  The MRT held that clause 485.223 is a “time of application” requirement. So the MRT considered that it was required to affirm the refusal of the visa application.  It took the view that even if it had been the case that the Department had misled the applicant in the advice it had given her over the phone about when the skills assessment could be done, it was required to apply the legal requirements of the Regulations.  Thus, it was the Tribunal’s view that the applicant’s only recourse was either to file a complaint with the Department, or to seek Ministerial Intervention.

So, my conclusion after looking at the case law was that the client who had called me was in a difficult situation. Much as I would have loved to have ridden to his rescue on a white stallion, it was very obvious that the law was against him.  And an even worse realization, humbling as it was: “I am not Superman!” (Yep, I know readers will be shocked to hear me say that!).. When the law is so clearly against my client’s position, I might not actually be able to fix his problem!

There is one more thing that I would like to remark upon: earlier this week my colleague Jerry Gomez posted an article on the MA site reporting that the number of 485 visa applications is relatively small compared to the number of overseas students.  I just wonder, in light of my client’s situation, why the Department cannot simply do some early screening of 485 applications, so if it is apparent that the skills assessment required by clause 485.223 has not been applied for by the time the application has been lodged, that the applicant is not “out of time”, and that they can still seek the assessment within 6 months of completion of their studies, and this qualify for the 485 visa.

Is that hoping for too much from the Department? Doesn’t Australia want to do everything it can to allow students who have gained skills through Australian study to remain here and contribute to the economy?

Over to you for your thoughts!

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