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A Cautionary Tale About 485 Visa Applications!
The case that is the subject of today’s article has immediate practical importance for anyone who ever handles, or might in the future assist a client, with an application for a Subclass 485 “Temporary
Graduate” visa.
The name of the case is Nguyen v Minister for Immigration & Anor (2016) FCCA 1523. It is a decision of Justice Burchardt and was handed down on 8 July 2016 and appeared on Austlii yesterday, 12 July.
The question in the case was: “How should clause 485.223 of Part 485 of the Regulations be interpreted?”
Clause 485.233 imposes the following criterion:
“When the application was made, it was 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 issue in the case was: What does the phrase “accompanied by” actually mean?
Exactly when does “evidence” that the applicant has applied for a skills assessment need to be provided?
The factual background of the case was as follows:
On 8 April 2013, the applicant posted an application for a skills assessment to the relevant skills assessment authority for her nominated occupation (accountant) to “Certified Practising Accountants of Australia” (“CPA”).
Then, on 10 April 2013, she lodged an application for a 485 visa under the Graduate Work Stream.
In her application, she truthfully answered the question: “Have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation” by answering “Yes” (as again, she had posted the application a few days earlier).
In the event, the applicant did not get a receipt from CPA until 18 April 2013.
She then submitted the receipt to the Department on 9 May 2013.
Then, on 23 May 2013, CPA sent her a skills assessment letter advising her that her skills had been assessed as being at the appropriate level for her application.
All good? Nope!!!! On 23 August 2013, the Department refused her application!
The reason: the Departmental officer was not satisfied that when the 485 visa application was submitted, that it was “accompanied by” evidence that the applicant had applied for a skills assessment.
Let’s just pause here for a moment. Since the Department did not actually refuse the application until August 2013, about 4 months after it was submitted, what possible prejudice to the Department could there have been that the “evidence” of the skills assessment had not “accompanied” the application exactly? After all, the applicant didn’t get confirmation from CPA that her application had been received until after she had submitted her application for the visa. And in the event, the skills assessment was “positive”.
Well, guess what? The applicant also lost both at the Tribunal and at the Federal Circuit Court!
Why?
Well it might have seemed that the case law was in the applicant’s favour.
In a decision that was referred to in Justice Burchardt’s judgment, Anand v Minister for Immigration & Citizenship (2013) 215 FCR 562, where Justice Katzmann concluded that “I am prepared to accept that evidence accompanying an application could be supplied after the application is lodged”. Justice Katzmann observed that it was doubtful that if accompanying evidence is uploaded a day or so after an application that “anyone would argue that the evidence did not accompany the application”. And her Honour went so far as to say that if an applicant indicated that evidence would be provided within a week and followed through and actually did provide the evidence within that time, then in that circumstance it might also be said that the evidence had accompanied the application.
Where Justice Katzmann drew the line in Anand was to say that the term “accompanied by” is not so “elastic” to allow material to be provide five months after an application was lodged and a decision had been made on the application.
However, in Nguyen, Justice Burchardt took a “narrower” view concerning the interpretation of the phrase “accompanied by”. It was Justice Burchardt’s observation that the wording of clause 485.223 is expressed in “imperative terms”, suggesting that there must be some very close temporal connection between the lodgment of the application and the submission of evidence in order for it to be found that the evidence has “accompanied” the application.
Accordingly, Justice Burchardt accepted the interpretation of the phrase “accompanied by” that had previously been adopted by the Tribunal: namely, that the evidence must be submitted “shortly after” the application (at least in circumstances where the application is submitted “on-line” and it is therefore not physically possible to upload documents at the exact time as the application through ImmiAccount.
In the Nguyen case, there had been a delay of 29 days between the time of the submission of the application and the submission of the evidence that a skills assessment had been applied for, and that delay was considered to be “too much of a delay”.
What this case does not give us is a “bright line” to tell exactly how much of an interval between submitting an on-line application and then uploading supporting documents would be acceptable, in circumstances where the Schedule 2 criteria dictate that certain materials must “accompany” the application.
The cautious approach would be sure to have available all materials that must “accompany” the application and to upload onto ImmiAccount immediately (at least on the same day!) after an on-line application is submitted.
At the same time, you really have to wonder about the outcome in this case, don’t you? Even Justice Burchardt observed that the outcome in this case was not fair or efficient, inasmuch as the applicant in this case did as a matter of substance have all the qualifications required for the grant of the visa.
While the Department’s decision in this case might have been consistent with the “letter of the law”, wasn’t it in the end somewhat of an oppressive exercise of bureaucratic authority? Exactly what was gained by the refusal here, other than depriving Australia of the skills this applicant had to offer.
What do you think?
Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.
Comments
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Wednesday, 13 July 2016DIBP can be late in assessing an application, but completely rigid if they want to information attached to an application. I am sure everyone would agree that the inconsistencies exercised by the department is very frustrating.
I am often told that if a DIBP delegate makes a mistake, the visa holder will most likely need to apply for a review to reverse the bungled decision. My client was sent a NOICC which he replied within the time frame given. He had the evidence on his email (time stamp and no return message that the email was not delivered) that his response was delivered but there was a system error on the part of DIBP and his visa was cancelled on the day after the deadline (early in the morning as well). We called and the DIBP member said that no emails were received and if he wanted he could apply to the AAT (costing my client money for an error made by the DIBP delegate). Long story short, I advised him to go to the DIBP office and demand to speak to a person. Be as nice as possible, plead your case to ask for assistance. Long story short, after 2 expired BVCs (client made an error and let the BVC lapse) his cancellation was reversed without AAT pending reviewing of his response to the NOICC. We immediately applied for his new visa and it was granted without the NOICC being addressed.
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Wednesday, 13 July 2016My personal view is that the High Court when faced with the same scenario would find that this 'time of application' criteria would fall away because of the rulings in the cases of Berenguel and Waensila.
this case needs to be taken UP.....8 July is the date of the handing down...the matters needs to be taken up to the High Court within time so that there is no requirement to seek an extension of time. The client will also retain their BVA. -
Wednesday, 13 July 2016
The real problem in my opinion was she put 0000 as reference number and the receipt/invoice was dated as 18/04/2013.
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Wednesday, 13 July 2016
I do not believe the decision is correct.
Contrary to what MRT ruled, it is my view that "accompanied by" cannot be satisfied even if the evidence is submitted "shortly after". In other words, given that 485 can only be lodged online and documents cannot be uploaded until after the application, it is my view that strictly speaking 485.233 can never be satisfied by any Applicant under current arrangements. Therefore, the literal meaning of such provision should not be taken.
If my belief is correct, it is wrong for the court to decide that 29 days is too much of a delay without any objective basis. For example, there is no relevant guideline provided in the PAM.
I believe the policy intention was to ensure that applicants will not lodge hopeless applications merely to extend their stay in Australia thereby wasting the time and resources of DIBP. If this is indeed the objective, I believe that 485.233 should be considered satisfied if the evidence is complete at the time of decision as in this case.
the court can make a decision to -
Wednesday, 13 July 2016
it seems to me that at times there people just sitting there looking to refuse rather than grant ?? No wonder we at times, don,t think too kindly of each other. and Wei, would still have that attitude if it was your client??
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Saturday, 16 July 2016
I believe we have a Postal Delivery Law that defines when a document is delivered.
How does the law that confirms postal delivery is considered to be the day the letter was posted, affect this. Since this law specifies that the date of receipt is considered to be the date of mailing. The recipient is considered to have received this mail on the day it was despatched. -
Monday, 18 July 2016
Dear Paul and Wei,
Thank you for your input.
I think it is fair to say that there is little in the law that we can be absolutely certain about.
If it were all black and white then I guess none of us would have a job to do and the Courts would not be busy.
My experience tells me that there is very little in this world that is completely certain, as soon as human beings get involved there will always be complications.
The default position in Immigration law is to complexity.
Consider if you will the requirement that when an application it is made it must be accompanied by something...does that make any sense?
What is the utility of that requirement?
I do not dispute the power of the Commonwealth to make a regulation but if it does not serve any useful purpose why add complexity?
The regulations are full of these additional requirements and they vary in almost every visa subclass...also regulations are not being reviewed by Parliament and given the way that regulations are pumped out what chance would any politician have to keep abreast of developments?
I have seen plenty of good applications that line up with the public policy objectives crash and burn because of a technical defect arising at the time of the lodging of an application.
I think the regulations are too complex and create additional barriers to applicants who otherwise have meritorious applications.
I am not complaining though because the more complex the system is, the more work I have to do. -
Monday, 18 July 2016
Hi Chris,
Yes of course It is far too complex with ridiculous interpretations and contradictions in refusal decisions.
485 is only one, student visas is another one with absolutely flawed decision criteria. The purpose of the 485 is to give students who study specified courses under the right visa class the opportunity to stay and work for 18 - 24 months.
The one thing that I see as absolutely ridiculous is that a skills assessing authority is assessing the education providers documents to issue a skills assessment. It is nothing but duplication. If the education provider has been licensed the government has already afforded the license to grant/bestow the qualification.
Why as people to pay for the very same documents to be assessed again and charge a fee to do it?
The skills assessment is not really a skills assessment because it only qualifies for temporary visas and not permanent. The international student is put through a rigorous requirement to reach Migration Assessment and pay another fee for it.
They qualified here so what does it say about the education in Australia. The Government has no faith in it, obviously.
The other ridiculous element is the English. They met the English requirement to study here but that is not enough to stay and work. How so? -
Monday, 18 July 2016
The visa criteria dictate that certain materials must “accompany” the application. That what was the FCC has found.
Any evidence of had applied for skills assessment been provided? Nothing, apart from incorrect and misleading information of applied for skills assessment on 07/04/2013 and Ref. of 0000, why?
If the application was POSTED on 08/04/2013, it was impossible that the CPA would have received it on same day, unless it was couriered, same day service, to CPA, I don't think it was the case here. Otherwise she will not wait until 09/05 to provide the receipt.
The incorrect answer on the application form may trigger a 4020 issue in the future if she lodge a further application within 12 months of expiry of her BVA/BVB in the future. -
Monday, 18 July 2016
Dear Wei,
Yes you are correct.
The conversation at this stage turns on why precisely a skills assessment must accompany an application.
Consider the following scenario, the client approaches a practitioner and says what do i need to do to get a visa category X? The practitioner says you must have a skills assessment. The client says but my visa is going to expire in 20 days time. The client applies for a skills assessment but the designated skills assessing authority receives the application for a skills assessment but takes 30 days to finalise the application and produce a positive skills assessment.
Why should an applicant miss out because of some dumb rule which says that the application must be accompanied by a (positive) skills assessment?
How is the national interest served by that requirement after all the candidate has a positive skills assessment before DIBP even commenced assessment of the application ?
Can't we just have regs which meet the KISS rule...Keep It Simple Stupid! -
Monday, 18 July 2016
Chris,
As we all know that the regulation in respect the skills assessment have been changed several times, form TOA and TOD, whenever it change, it may benefits some but disadvantages others, clearly there is no one fits all solution. -
Monday, 18 July 2016
Yes i agree completely with that assessment. I am not suggesting a one size fits all solution to this problem but I am using it to illustrate what the issues are and how to address them by using the logic that the high court applied in the cases of Berenguel and Waensila
Immigration blog
Failed to satisfy means failed to satisfy, therefore the criterion has not been met, plan and simple, I could not see refusal was unfair or inefficient.
She actually benefited from it, which allowed her to be lawfully stay until now.
If the visa was granted in August 2013, it would be expired some 17/18 months ago.