In Nguyen v Minister for Immigration & Anor (2016) FCCA 1523. Justice Burchardt held that the question was: “How should clause 485.223 of Part 485 of the Regulations be interpreted?”
Clause 485.233 imposes the following criterion:
“When the application was made, it was accompanied by evidence that the applicant had applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority”.
The issue in the case was: What does the phrase “accompanied by” actually mean?
Exactly when does “evidence” that the applicant has applied for a skills assessment need to be provided?
On 8 April 2013, the applicant posted an application for a skills assessment to the relevant skills assessment authority for her nominated occupation (accountant) to “Certified Practising Accountants of Australia” (“CPA”).
Then, on 10 April 2013, she lodged an application for a 485 visa under the Graduate Work Stream.
In her application, she truthfully answered the question: “Have you applied to a relevant assessing authority for an assessment of your skills for your nominated skilled occupation” by answering “Yes” (as again, she had posted the application a few days earlier).
In the event, the applicant did not get a receipt from CPA until 18 April 2013.
She then submitted the receipt to the Department on 9 May 2013.
Then, on 23 May 2013, CPA sent her a skills assessment letter advising her that her skills had been assessed as being at the appropriate level for her application.
On 23 August 2013, the Department refused her application!
The reason: the Departmental officer was not satisfied that when the 485 visa application was submitted, that it was “accompanied by” evidence that the applicant had applied for a skills assessment.
In a decision that was referred to in Justice Burchardt’s judgment, Anand v Minister for Immigration & Citizenship (2013) 215 FCR 562, where Justice Katzmann concluded that “I am prepared to accept that evidence accompanying an application could be supplied after the application is lodged”. Justice Katzmann observed that it was doubtful that if accompanying evidence is uploaded a day or so after an application that “anyone would argue that the evidence did not accompany the application”. And her Honour went so far as to say that if an applicant indicated that evidence would be provided within a week and followed through and actually did provide the evidence within that time, then in that circumstance it might also be said that the evidence had accompanied the application.
Where Justice Katzmann drew the line in Anand was to say that the term “accompanied by” is not so “elastic” to allow material to be provide five months after an application was lodged and a decision had been made on the application.
However, in Nguyen, Justice Burchardt took a “narrower” view concerning the interpretation of the phrase “accompanied by”. It was Justice Burchardt’s observation that the wording of clause 485.223 is expressed in “imperative terms”, suggesting that there must be some very close temporal connection between the lodgment of the application and the submission of evidence in order for it to be found that the evidence has “accompanied” the application.
Accordingly, Justice Burchardt accepted the interpretation of the phrase “accompanied by” that had previously been adopted by the Tribunal: namely, that the evidence must be submitted “shortly after” the application (at least in circumstances where the application is submitted “on-line” and it is therefore not physically possible to upload documents at the exact time as the application through ImmiAccount.
In the Nguyen case, there had been a delay of 29 days between the time of the submission of the application and the submission of the evidence that a skills assessment had been applied for, and that delay was considered to be “too much of a delay”.
If you or anyone you know is about to lodge a 485 SKILLED VISA or sub class 189 or 190 or has had a visa refused or cancelled please speak to one of the lawyers at our office for thorough advice on your options.
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