Federal Court: Application must be accompanied by evidence that skills assessment has been applied for: cl 485.223. Applicant must provide positive skills assessment by TOD: cl 485.224. On visa application form, Appellant specified the details (date, etc) of a failed assessment application. Did the mere specification of those details constitute evidence? Could it be said that: the failed assessment satisfied cl 485.223, as all that clause requires is that the visa application be accompanied by evidence that an assessment has been applied for; cl 485.224 could be satisfied by a subsequent assessment, so long as positive? We respectfully disagree with the decision.
The relevant legislative provisions were contained in Schedule 2 to the Migration Regulations 1994 (Cth), as follows:
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.
(1) The skills of the applicant for the applicant’s nominated skilled occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation.
Clause 485.223 is known as a time of application (TOA) criterion and cl 485.224(1) is known as a time of decision (TOD) criterion.
The questions to the Federal Court (FCA) were as follows:
Question 1: Could it be said that: the failed assessment satisfied cl 485.223, as all that clause requires is that the visa application be accompanied by evidence that an assessment has been applied for; cl 485.224 could be satisfied by a different (and positive) skills assessment obtained between the TOA and TOD?
Question 2: For the purposes of satisfying cl 485.223, would a mere affirmative answer to the question asked on the visa application form on whether an applicant has applied for a skills assessment be sufficient as evidence, although that was not the case here?
Question 3: For the purposes of satisfying cl 485.223, was the mere "specification of the receipt number ... sufficient as contemporaneous evidence, subject to a copy of that receipt being produced on request"?
The FCA answered those questions as follows:
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