Tribunal Remits Subclass 187 Visa Refusal Case Back to Department
The review application is for refused subclass 187 visa in the direct entry stream. The delegate refused to grant the visa because there is no approved nomination application. The delegate noted that the regulations do not allow the linking of applications for visas to another nomination application after the lodgment.
Facts About the Subclass 187 Visa Case in Chronological Order
26 Jan 2016 – the nominator lodged a nomination application (first one) listing as the nominee.
31 Oct 2016 – the nomination application was refused. No visa application associated with the nomination was lodged.
8 May 2017 – nominator lodged a further nomination application (second one) listing as the nominee
11 May 2017 – applicant lodged an application of 187 visa. In the visa, the applicant wrongly put in the TRN of the first nomination which was already refused.
29 Jan 2018 – received s57 notice saying there is no approved nom
2 Feb 2018 – applicant submitted a NIA (notice of incorrect answer) form saying honest mistake due to clerical error.
28 Feb 2018 – applicant sent an email to Clare McNamara, Director of ENS program, reiterating the above.
5 March 2018 – delegate refused the visa
13 March 2018 – applicant applied to the tribunal for review
1 May 2018 – applicant received the following reply from the Department, “The department’s policy position is that where a visa applicant declares the incorrect TRN of their associated nomination, this information cannot be corrected”
Tribunal’s Reasoning for the Subclass 187 Visa Refusal Application
In Pavuluri v Minister for Immigration and Border Protection [2014] FCA 502 [33], the Court left open the possibility that the Tribunal may have regard to evidence or other material in determining which occupation an applicant intended to specify. In that case, in considering s105, Mortimer J gave the following example of an incorrect answer that s 105 would operate to correct at [49]:
...if in answer to a question about the receipt number or reference number for the skills assessment application, the wrong number was entered because of a typographical error, this is the kind of incorrect answer “at the time it was given” which, under s 105, the visa applicant would be obliged to correct as soon as reasonably practicable (emphasis added). The Tribunal is of the view the entry of the wrong number is properly characterized as a transcription error. The Tribunal is of the view this transcription error is in substance no different to a typographical error as outlined by Mortimer J.
However, there is some conflicting authority on this position, for example, obiter comments in Chen v MIAC [2011] FMCA 859 suggest that where an applicant makes a mistake of this kind, the only option is to make another application.
The facts of the example given by the Court in Pavuluri are similar to the circumstances of the present application. Applying the reasoning in these cases which considered subclass 485 visas by analogy suggests that it is open to the Tribunal to consider that the applicant intended to refer to the TRN of the second nomination application which at the time they made the visa application was still on foot with the Department.
Therefore, the Tribunal makes a finding of fact that in the present application the visa application “was intended to be linked with the second nomination application and that this was simply a case of entering numbers incorrectly” The Tribunal finds that the position in the visa application is one nominated in “in an application for approval that seeks to meet the requirements of” reg 5.19, namely the second nomination application which was subsequently approved by the Department.
The Tribunal finds that the position in the subclass 187 visa application is the position nominated in the second nomination application because, on examination of the submissions and evidence presented, it is satisfied that it was the position intended to be the one in relation to which the 1114C(3)(d) declaration was made.
Our Analysis
This case is interesting and seems to open up the possibility of linking different nominations and visas for 186/187 although in this case, it is because of a genuine error so easier to point out.
How Can Agape Henry Crux Help
At Agape Henry Crux, our Accredited Specialist Immigration Lawyers and our team of immigration lawyers and migration agents are well trained to handle highly complex matters. You can book one of our lawyers or agents to seek professional advice by calling 02-72002700 or email us to book in a time at info@ahclawyers.com.
We speak fluent English, Korean, Burmese, Mandarin, Cantonese, Indonesian, and Malay. If these aren’t your language, we can also help you arrange an interpreter.