Sub 485: can we combine 2 skills assessments?

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?

The relevant legislative provisions were contained in Schedule 2 to the Migration Regulations 1994 (Cth), as follows:

485.223 

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.

485.224 

(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:

The remainder of this article is only available to Case Law and Platinum subscribers.

Read our Terms & Conditions and upgrade below:

Monthly Subscriptions

Premium
Basic Content
Premium Content
-
-
$ 29 /month
Subscribe
Case Law
Basic Content
-
Case Law Content
-
$ 49 / month
Subscribe
Platinum
Basic Content
Premium Content
Case Law Content
Save $ 9 / month
$ 69 / month
Subscribe

Annual Subscriptions

Premium
Basic Content
Premium Content
-
Save $ 49 / year
$ 299 / year
Subscribe
Case Law
Basic Content
-
Case Law Content
Save $ 89 / year
$ 499 / year
Subscribe
Platinum
Basic Content
Premium Content
Case Law Content
Save $ 237 / year
$ 699 / year
Subscribe

 

Where GST applies, the above amounts are inclusive of GST.

Content Types

Basic Content includes basic news, some media articles and selected announcements.

Premium Content includes all our content, except for Case Law Content. In other words, it includes Basic Content, plus all our articles on legislative and policy changes, industry updates and the Migration Legislation Tracker.

Case Law Content includes Basic Content, plus case law summaries, analysis and extract, but does not include Premium Content.

Platinum Content includes Basic Content, plus Premium Content, plus Case Law Content. In other words, it includes ALL our content.

If you already have a Case Law or Platinum subscription, click on 'Login' below.