Bussa v Minister for Immigration and Border Protection

In Bussa v Minister for Immigration and Border Protection, the appellant, an Indian citizen residing in Australia on a student visa, sought judicial review of a decision by the Migration Review Tribunal affirming the Minister's refusal to grant him a graduate work visa. The refusal was based on the appellant's failure to provide evidence that he had applied for a skills assessment in his nominated occupation before lodging his visa application. The appellant had specified a receipt number for a prior skills assessment but did not provide this evidence with his application. The primary judge found that the appellant's evidence was not sufficient to meet the requirements of clause 485.223 of the Migration Regulations 1994 (Cth), which mandates that applicants provide evidence of applying for a skills assessment prior to lodging their visa application. The court held that the evidence required by the clause must be provided contemporaneously with the application and cannot merely be an assertion of compliance.

The legal issue before the court was whether the evidence provided by the appellant was sufficient to meet the requirements of clause 485.223, and if so, whether it needed to be provided at the time of the visa application. The court relied on the decision in Khan v Minister for Immigration and Border Protection, which held that clause 485.223 is an objective requirement that must be satisfied at the time of the visa application. The court found that the appellant's reference to a prior skills assessment did not satisfy the requirement as it did not provide evidence of applying for a skills assessment at the time of the application. The court also noted that merely asserting compliance with the condition is insufficient and that more than an affirmative answer on the application form is required. The appellant's reference to the receipt number for the prior skills assessment, although potentially sufficient if the assessment was not spent, was not provided with the application and therefore did not meet the requirement.

The appeal was dismissed, and the decision of the Migration Review Tribunal was affirmed. The court held that the appellant's failure to provide contemporaneous evidence of applying for a skills assessment meant that he did not satisfy the requirements of clause 485.223. The court also noted that even if the prior skills assessment had not been spent, the reference to the receipt number would have been sufficient only if it had been provided with the application. The appellant's failure to provide such evidence meant that he did not meet the objective intention of clause 485.223, as identified in Khan. The appeal was dismissed with costs.