Time of Application Criteria and 485 Visas

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Full Court Decision Warns That Applicants Who Do Not Comply Are At Risk of Visa Refusal

“Time of application” criteria can be the “spell of doom” for visa applications.

When a time of application criterion is not satisfied, it can result in the refusal of an otherwise meritorious application – for example, where as a matter of substance the applicant does in fact have the qualifications that are required for the grant of the visa.

Is there any scope for flexibility where these time of application criteria apply?

A recent unanimous decision of the Full Court of the Federal Court, in the case  of Khan v Minister for immigration and Border Protection (2018) FCAFC 85 informs us that there is not, and that applicants who are hoping that time of application criteria will not be enforced strictly will find themselves to be disappointed.

The Khan case arose from the refusal of a Temporary Graduate – subclass 485 visa.

One of the relevant criteria for the grant of this visa was regulation 485.233, which requires that when such an application is made, it must be “accompanied” by evidence that the applicant has applied for an assessment of her/his skills for the nominated occupation by a relevant skills assessment authority.

In the Khan case, the circumstances were that the applicant had not applied for a skills assessment by the date that he lodged his visa application, and in fact did not do so until nearly two months after the date on which the application was made.  The explanation given for why the application was made before a skills assessment had been applied for was that the applicant’s student visa was due to expire on the date that the application was filed, and that if he had delayed the making of the application beyond that date, he would have had to apply for the visa from outside Australia.

The applicant’s “late”, or “untimely” application for a skills assessment was, in the ultimate event, successful; thus, as a “matter of fact” he had acquired the necessary skills relevant to his nominated occupation.

His argument to the Full Court was that the requirement that evidence that he had applied for a skills assessment “accompany” his application should be applied “leniently”.

He relied on the case of Anand v Minister for Immigration and Citizenship (2013) 215 FCR 562; (2013) FCA 1050.  In that case, Justice Katzmann had held that an analogous requirement that an applicant provide evidence that an application had been made for a check of criminal records with the Australian Federal Police with the visa application could be applied with some degree of flexibility, at least to the extent that if the evidence that the police check had been sought the day after an application was made, or even a week after, that in that circumstance it could be fairly said that the evidence had “accompanied” the application.

In Khan, however, the justices who formed the panel of the Full Court (Justices Tracey, Charlesworth and Derrington) were all disinclined to accept that a requirement that certain supporting materials “accompany” the application should be interpreted “benignly”.

Writing for the Court, Justice Tracey observed that “stretching of the concept” of the meaning of the word “accompanied” could “give rise to difficulties in determining how far a departure from the temporal requirement may be permitted” (in other words, how much time may pass between the lodgment of the application and the provision of the supporting material in order to enable a finding to be made that the material had accompanied the application).

Justice Tracey took the view that it is unnecessary to “stretch the concept”, or to determine how much flexibility could be allowed in interpreting the requirement that evidence of a skills assessment “accompany” the application.

Without specifically addressing the question of how much flexibility, if any, might be available, Justice Tracey held that considerations of fairness should not affect the interpretation of the regulation.

In Justice Tracey’s view, the language in regulation 485.233 imposes an objective test, and that concepts of “blameworthiness or deservedness” do not enter the equation:  in Justice Tracey’s words, “a visa application is either accompanied by the necessary evidence or it is not”.

The message to be taken from the Full Court’s decision in Khan is therefore one of caution:  visa applicants and their advisors must expect that a time of application requirement like the one that is imposed by 485.233 will be interpreted and enforced strictly and rigidly.

Therefore, the careful approach that is suggested by this decision is to comply fully with any time of application requirement, so that one is not left in a position of hoping for leniency that is unlikely to be available.

And if one finds oneself in a position like the one that the applicant found himself in in Khan,  the best solution is to forward plan, and to make arrangements to apply for the skills assessment well in advance of the day that a previous visa is due to expire.

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