Australian Immigration Daily News

Is there anything that you can do when “Murphy’s Law” strikes, and everything that could possibly go wrong, does go wrong? 

What if a visa applicant is entirely “blameless”, and the applicant’s failure to satisfy a criterion for the grant of a visa is the result of circumstances entirely outside the applicant’s control? 

Do the Federal Courts have a general power to “dispense with the Migration Regulations” in order to prevent a harsh or unjust outcome? 

These intriguing questions were the subject of a decision that was handed down on 16 November by Judge Neville of the Federal Circuit Court in Canberra Khan v Minister for Immigration & Anor (2017) FCCA 2585. 

The applicant was represented in this case by Migration Alliance friend and colleague solicitor Hugh Ford. 

At issue in this case was an application for a Subclass 485 visa and that recurring “headache” of a regulation, clause 485.223 of Schedule 2, which requires that when such an application is made, it must be “accompanied by” evidence that the applicant has applied for assessment of her or his skills for the nominated skilled occupation by the relevant skills assessment authority. 

Here is what happened in the Khan case: 

The applicant had come to Australia on a Subclass 573 student visa. He was required to take a supplementary assessment in one of his courses, “database systems”, in order to pass the course.

He did in fact pass the course on 15 March 2016. Unfortunately, his student visa ceased on that same day. He was issued a completion certificate by the University of Canberra on 21 April 2016, but did not receive his academic transcripts with the word “Completed” on it until 1 May 2016. 

Also: on 13 May 2016, he applied to the Australian Computer Society for a skills assessment. When he called the ACS to check if his application was being processed, he was told that the payment that he had attempted to make for the skills assessment had not been able to be processed.  Therefore, on 17 May 2016, he applied again to the ACS for a skills assessment. He received a favourable skills assessment on 27 May 2016. 

When the applicant filled out the application form for the 485 visa, on 15 March, the applicant truthfully answered the question on the form asking whether he had applied for a skills assessment by ticking the box that said “No”. 

Consequently, the Department refused the application in the first instance on the basis that the applicant did not satisfy 485.223, and the Tribunal affirmed the refusal. 

So what was the outcome here?

Judge Neville concluded that the requirements of 485.223 are “mandatory”, and that the courts do not have any “general power” to dispense with the regulations to avoid a seemingly unfair outcome, but rather, that the courts are bound to follow the regulations.

Judge Neville also followed the holding of Judge Katzmann in the case of Anand v Minister for Immigration and Citizenship.  In that case, it was held that the language in clause 485.223 that requires that an application for a 485 visa must be accompanied by evidence that the applicant has applied for a skills assessment means that there must be some “temporal connection” between the visa application and the submission of evidence that the skills assessment has been applied for.   

In Anand, it was also held that if evidence that a skills assessment has been sought is uploaded or attached to an application “a day of so” after the application, it could not be argued that the application was not “accompanied by” evidence that a skills assessment had been sought, and that the allowable period for submitting that evidence might even extend beyond that time. 

However, Judge Katzmann also observed in Anand that the language of 485.223 “cannot be stretched so far that it snaps”, and thus concluded that when evidence that a skills assessment has been applied for is not provided until 5 months have passed after the application was made, it cannot be fairly said that the evidence has “accompanied” the application. 

In the Khan case, the evidence that a skills assessment was not provided until 2 months had elapsed since the time of the application, and thus, the Court found that the Tribunal had committed no jurisdictional error in affirming the refusal. 

Judge Neville did express considerable sympathy for the applicant’s plight in this case, and suggested in his reasons that the case was one that could well be suitable for Ministerial Intervention. 

Doesn’t it seem like the problems in this case stemmed from the fact that the applicant had been required to take a supplemental exam, and that his student visa expired on the same day that he got the results of that exam? If the visa had extended for a longer period of time beyond the end of the course, then the applicant would not have felt compelled to submit the application for the 485 visa as soon as he did, before he had the opportunity to apply for a skills assessment?  

Wouldn’t the problems in this case have been avoided if that had occurred?