Australian Immigration Daily News

How important is it to comply with deadlines fixed by the Tribunal for providing information in support of a visa application?

And how important is it to communicate with the Tribunal if it appears that there may be difficulty in meeting the deadline allowed by the Tribunal?

The answer, as illustrated by a decision that was handed down by the Federal Circuit Court on 5 April 2017, Singh v Minister for Immigration & Anor (2017) FCCA 670 is “incredibly”.

This was the background of the case:

The applicant, a citizen of India, applied for a 457 visa in June of 2013. In the application, he indicated that his skilled occupation was that of a diesel mechanic.  In August 2013, a Departmental officer wrote to the applicant requesting that he provide evidence that he had obtained a skills assessment.  The applicant sought an extension of time until October 2013 to provide evidence of the skills assessment. However, he did not ultimately provide any further information to the Department. Consequently, in May 2014, the Department proceeded to refuse the application.

The applicant then sought merits review of the refusal before the Tribunal, and a similar pattern repeated itself:

In November 2014, the Tribunal wrote to the applicant asking that he provide information to demonstrate that he had had a skills assessment for his occupation, or at least that he had applied for an assessment.  In December 2014, the applicant wrote back to the Tribunal advising that it would take at least 40 days to get a skills assessment from the Trades Recognition Authority. Then, in February 2015, the Tribunal invited the applicant to appear at a hearing in April 2015.

At that hearing (held on 23 April 2015), the applicant advised the Tribunal that he had undertaken a skills assessment with the Institute of Automotive and Mechanical Engineers the previous day, and that he expected to receive the results in about 6 weeks. 

The Tribunal advised the applicant that it would adjourn the review for 6 weeks, until 10 June 2015.

However, the applicant did not provide the Tribunal with evidence of the skills assessment by that date.

Furthermore, neither the applicant nor his migration agent communicated with the Tribunal to ask for a further adjournment to provide evidence of the skills assessment.

Accordingly, on 12 June 2015, the Tribunal proceeded to affirm the refusal of the 457 visa application.

On 16 June 2015, the applicant submitted the results of his skills assessment from the Institute of Automotive and Mechanical Engineers to the Tribunal.

Unfortunately for the applicant, the Tribunal refused to re-open the case. The Tribunal informed the applicant that it had become “functus officio”, meaning that since it had issued its decision, its authority to conduct a review had come to an end.

The irony here was that as early as 30 April 2015 (only a week after the Tribunal hearing), the applicant had received a certificate from the IAME, and on 1 June 2015 (before the deadline for the submission of evidence of a skills assessment that had been fixed by the Tribunal), the applicant had received a “tradesperson certificate” from the NSW Department of Fair Trading.  These materials had apparently been provided by the applicant to his migration agent before the deadline that had been given by the Tribunal.

The truly unfortunate aspect of this case is that it appears (as the Court noted) that the applicant was on a path that would have enabled him, as a matter of substance, to demonstrate to the Tribunal that he did satisfy the criteria for the grant of the 457 visa. 

However, because apparently neither he nor his agent communicated with the Tribunal to seek a further extension of time, and because the materials that might have demonstrated that he met the criteria for the grant of the visa was not submitted until after extension of time originally granted by the Tribunal had expired and the Tribunal had issued its written decision, the applicant’s case was lost before the Tribunal.

The Federal Circuit Court concluded that the Tribunal had not acted unreasonably, and had not committed jurisdictional error, by proceeding to decide the review application after the applicant had failed to supply further information by the deadline set by the Tribunal.

It all goes to show that it is critical for applicants to comply with time deadlines that are fixed by the Tribunal, and/or to communicate with the Tribunal if there is some reason why the deadline cannot be met. 

This case shows that failing to meet a deadline, and failing to request an extension, can be fatal to an application for review before the Tribunal. Even when it appears that the applicant may substantively be able to qualify for the visa! 

(And by the way, "good luck" trying to get the Tribunal to "reopen" a review after it has issued a written decision. Subsection 368(2A) provides that the Tribunal has no power to vary or revoke a decision after the day and time that the written decision is made.