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High Court and 485 visa applicant: Delegate acted with legal unreasonableness

Background:

On 30 November 2015, the plaintiff applied for a Temporary Graduate (Graduate Work) (Subclass 485) visa.

The criteria for the grant of a Subclass 485 visa included, under reg 485.224 of Sch 2 to the Migration Regulations 1994 (Cth), the following:

“(1) The skills of the applicant for the applicant’s nominated skilled 30 occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation.

(1A) If the assessment is expressed to be valid for a particular period, that period has not ended.

(2) If the applicant’s skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification was obtained as a result of studying a registered course.

” At the time of lodging his application for visa, the plaintiff had not been assessed by a relevant assessing authority as suitable for his occupation of Carpenter 331212, but he had undergone the assessment process and evidently expected that he would pass the assessment."

On or about 18 March 2016, the plaintiff received from the Department a letter dated 18 March 2016 notifying him that his application for visa had been refused because he had not satisfied the provisions of the Migration Regulations 1994 (Cth).

The letter enclosed a Decision Record, also dated 18 March 2016. On 24 March 2016, the plaintiff received a letter from the TRA notifying him that his Provisional Skills Assessment Review application had been successful for the occupation of Carpenter 331212.

The plaintiff forthwith supplied a copy of that notification by email to the Department with a request for reconsideration of his application for visa.

On 6 April 2016, the plaintiff received from the Department a response advising that it could not revisit a decision but that the plaintiff could make an application to the Administrative Appeals Tribunal (“the AAT”).

Result:

The High Court has rejected the Minister’s submission that there was an evident basis for the delegate proceeding to determine the application without waiting the time required for completion of the TRA

"In my view, it was not open for a reasonable decision-maker to act in that manner in the circumstances of this case. I consider that the delegate acted with legal unreasonableness in adopting the course she did."

Source: SYL-v-Minister.pdf

 

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Comments

  • Guest
    Vu Le Tuesday, 12 March 2019

    Would this case be applicable a student fail to provide AFP Certificate at time of application?

  • Guest
    Bea Leoncini Wednesday, 13 March 2019

    All of us have (and continue to) experience how quickly many Departmental delegates jumps to a decision without waiting, even when they had been advised of further information being sought (third party time-frames being outside the applicants' control). Surely, providing applicants with considered and reasonable additional time, where warranted, should be the norm to ensure due diligence, instead of feeling the pressure to possible to make a decision.- how many cases are out there in which the department took ages for decisions to be made and no-one self-combusted? (within the Department, I mean - thinking about the Old Skilled Migration applications as a case in point...).

    A very clear decision. It would be interesting to see how it can assist people who are in similar situations (and out of time) for judicial review.

    Thanks Liana (and the MA Team) for posting these, always.

    Bea

  • Guest
    Mohammad Saghir KHAN Thursday, 14 March 2019

    Thanks Liana for sharing the case.
    My client is in somewhat similar situation, he applied for sc485 Graduate stream and failed to fulfill reg 485.224 of Sch 2. CO refused the visa application without RFI. Wondering if I could refer this case to justify "Legal unresonableness in case proceedings"?

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Guest Thursday, 23 May 2019
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