IMPORTANT CASE: Decision to refuse a Graduate (subclass 485) visa application quashed in the High Court

In Lam v Minister for Immigration and Border Protection [2019] HCATrans 43, the plaintiff made an application for a constitutional writ, seeking a certiorari to quash a decision of the Minister’s delegate of 18 March 2016 to refuse to grant a Temporary Graduate (Graduate Work) (Subclass 485) visa, and mandamus to compel the Minister to determine the application for visa according to law.

Background

At the time of lodgment, the plaintiff had not been assessed by a relevant assessing authority as suitable for the occupation of Carpenter, but had made an application for assessment with Trades Recognition Australia (“TRA”).

On 8 February 2016, a case officer emailed the plaintiff a letter requesting that the plaintiff provide a skills assessment, within 28 days.  On 4 March 2016, the plaintiff received from the TRA a letter acknowledging that he had lodged a Provisional Skills Assessment (PSA) Review application and could take up to 30 days to be assessed.  The plaintiff then uploaded a copy of the TRA letter to his visa application.

On 18 March 2016, the plaintiff received a letter and decision record from the Department notifying that his visa application had been refused because he had not satisfied the provisions of providing evidence of a skills assessment.

On 24 March 2016, the plaintiff received a letter from the TRA notifying him that his PSA application was successful for the occupation of Carpenter.  The plaintiff then supplied a copy of that notification to the Department, requesting reconsideration of his application.  The plaintiff was out of time to make an application at the AAT, and proceeded to bring the matter before the HCA.

Relevant legislation

Reg 485.224 of Sch 2 to the Migration Regulations 1994 (Cth):

(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.

(1A) If the assessment is expressed to be valid for a particular period, that period has not ended.

(2) If the applicant’s skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification was obtained as a result of studying a registered course.”

High Court considerations

The plaintiff’s ground of application is that the delegate was unreasonable in proceeding on 18 March 2016 to make a decision to reject the application for visa rather than wait for the TRA’s assessment of the plaintiff’s nominated skilled occupation of carpenter.  It was only six days later that the review application was determined in the plaintiff’s favour.

Given the delegate’s notice from 6 March 2016 that the TRA was reviewing the plaintiff’s skill assessment, and that the review would likely take no more than 30 days to complete, and given the Department’s automated email of 26 March 2016 that the delegate understood that it could take more than 28 days for the TRA to complete an assessment, no reasonable decision-maker would have proceeded without waiting the 30 days unless there were good reason to do so, and there was non.

Decision

The delegate acted with legal unreasonabless in adopting the course she did.  The delegate’s decision was quashed and the Minister directed to determine the plaintiff’s application for visa according to law.

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