Australian Immigration Daily News

There has been another case that illustrates the pitfalls and perils that can result in the refusal of an application for a Subclass 485 (Temporary Graduate) visa application. 

Readers may recall that just recently, on 13 July 2016, I posted an article about the decision of Judge Burchardt in the case of Nguyen v Minister for Immigration & Anor (2016) FCCA 1523. 

In Nguyen, an application for a 485 visa was refused, and the refusal was affirmed by the Tribunal, on the basis that the application was not “accompanied by” evidence that the applicant had applied for a skills assessment.  

What had actually happened in Nguyen was that the applicant had in fact applied for the skills assessment before she lodged her application for the 485 visa.  However, the problem was that she did not get a receipt from CPA Australia until after she had submitted her visa application, and she did not submit a copy of the receipt to the Department until about a month after she lodged the application.  There was actually a delay of only 29 days between the time that the visa application was lodged and the time that evidence. 

However, in Nguyen, Judge Burchardt held that the words “accompanied by” as used in Part 485 are “imperative”, and suggest that there must be a “very close temporal connection” between the time the application is lodged and the time when evidence that must “accompany” the application must be provided.  In Nguyen, Judge Burchardt found that the 29 day delay was “too much of a delay”, and therefore concluded that the Tribunal had not committed jurisdictional error by affirming the refusal of the application. 

In the recent (3 August 2016) decision from the AAT (Member Lisa Lo Piccolo), 1604359 (Migration) 2016 AATA 4214, this issue repeated itself, once again to the detriment of the applicant. 

This is what happened: 

The applicant lodged her application for the 485 visa on-line on 11 January 2016. When she answered the questions in the on-line form, she answered the question as to whether she had undertaken an English language test within the previous 36 months by stating “no”.  

However, as a matter of fact she had taken an IELTS test within the 36 month period before she filled out the application form. 

The reason she had stated that she had not taken the English language test was that the on-line application requires applicants to provide the date when the test was taken and a reference number for the test report if one states that one has taken the test.  When she filled out the form, the applicant had only recently returned to Australia and was in the process of moving in with her partner, and had apparently been unable at that time to find her IELTS test report.  

According to the applicant, she succeeded in finding her IELTS test report a few days after she had submitted her visa application. She claimed that after she found the test report, she was unable to upload the report through ImmiAccount.  She said that she and her partner then monitored ImmiAccount to find out whether a Departmental case officer had been assigned to review her application, so that she would know where to send the test report. 

What occurred, however, was that on 11 March 2016, the Department refused the application on the basis that the applicant had not demonstrated that she had the required English proficiency. It seems apparent that the reason for the refusal was that the applicant had ticked the answer “no” on the electronic application form in reply to the question as to whether she had taken an English language test within the 3 year period prior to lodgement of the application. 

It was not until 30 March 2016 (after the application had been refused) that the applicant submitted her IELTS test report.  The applicant submitted the report to the Tribunal, and not to the Department. 

As a matter of substance, it appears that the applicant’s IELTS test report did confirm that she had the required level of proficiency in English.  Furthermore, the applicant also submitted a Cambridge English Proficiency certificate to the Tribunal. So there was apparently no question that the applicant’s English language ability had been assessed as being sufficient to satisfy the criteria for the grant of the 485 visa. 

So was it good enough that the applicant submitted this evidence to the Tribunal? Did doing so satisfy the requirement that the application be “accompanied by” evidence of her English language proficiency? 

No, it did not, in the Tribunal’s view.  

The Tribunal reasoned that under Judge Burchardt’s decision in Nguyen, the requirement that the application be “accompanied by” evidence of the applicant’s English language proficiency should be interpreted to mean that the evidence must be provided “at or around the time of the application”. 

Here, the Tribunal found that the fact that the applicant had never submitted evidence of her English language proficiency to the Department, and had only submitted the evidence to the Tribunal, and had given the evidence to the Tribunal 79 days after the application was originally lodged with the Department, meant that the applicant had failed to satisfy the requirement that the application be “accompanied by” evidence of English language proficiency. 

Despite deciding to affirm the refusal of the visa application, the Member noted that she had “great sympathy” for the applicant’s circumstances, and stated that she considered the case one that was suitable to be referred for Ministerial intervention under section 351 of the Act. 

Does anyone want to hazard a guess as to what the prospects are that the Minister will indeed intervene in this case? You never know, but if I had to say, I’d venture: “Probably not very good given how rare it is to succeed with an application for Ministerial intervention. 

The result here does provide another powerful reminder that in circumstances where the Schedule 2 criteria require that an application be “accompanied by” particular evidence, that best practice would indicate that the evidence actually be in hand at the time that an electronic application is being prepared, and that it be uploaded through ImmiAccount immediately (the same day!) after the application form is completed.  Any other approach would put the application at potential risk.  And the case law does not provide certainty as to how long after an application is lodged that evidence could be submitted and still be accepted as “accompanying” the application  - all we know from Nguyen is that there is no “bright line” that tells us how long is too long other than that 29 days is apparently “too long”.  

Is this the right result/approach? Does it elevate “form over substance? Should an applicant be able to cure a deficiency with an application by providing material to the Tribunal which demonstrates that the applicant does indeed satisfy the applicable criteria? 

And should the Schedule 2 criteria for 485 visas really require that the application be lodged within 6 months of the time that the Australian study requirement has been satisfied? 

What are your thoughts about this?

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