Timing of cl 485.223 & abuse of process

High Court. The AAT affirmed a refusal to grant the plaintiff a subclass 485 visa on the basis that his visa application had not been accompanied by evidence that the he had applied for a skills assessment. The plaintiff unsuccessfully applied to the FCCA for judicial review of the AAT's decision and unsuccessfully appealed to the FCA. The plaintiff eventually applied to the HCA for constitutional writ "on the basis of grounds rejected in the courts below". Was the application to the HCA in its original jurisdiction an abuse of process? Can cl 485.223 be satisfied by evidence provided to the decision-maker after the time of submitting the visa application?

The questions to the High Court (HCA) were as follows:

Question 1: Was the application to the HCA in its original jurisdiction an abuse of process?

Question 2: Clause 485.223 of Schedule 2 to the Migration Regulations 1994 (Cth) provided 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".  Can that provision be satisfied by evidence provided to the decision-maker after the time of submitting the visa application?

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