At the AAT all nomination evidence has to be proven afresh at time of decision
At our next workshop/webinar on Saturday 22 October 2022, I conduct a sponsored work visa intensive for 4 hours. What is often not understood is that there is no time of application – time of decision dichotomy in relation to all nominations for all employer sponsored visas (temporary or permanent).
This applies equally to the AAT. Hence at the AAT stage it is possible to enhance the nominator’s case by adducing extra evidence and even doing things post the nomination application and even post the nomination refusal to enhance the prospects of success.
It also means that even if one gets a natural justice letter during the nomination process, it is still possible for the sponsoring employer to do things and enhance its position by doing things in conformity with the nomination requirements.
Of course the law generally becomes fixed to the date of nomination application (although not necessarily always). But the evidence is assessed at time of decision.
What this means is that if there is some delay, like 6 months or a year between the date of nomination and date of decision, the evidence ought to be supplemented to ensure that it is still up to date by time of decision.
This is especially so for the AAT, note at the AAT stage, because it is not a visa refusal, the nominating employer has to prove its case afresh and present all evidence afresh on each and every criterion in the regulations for the nomination. All this evidence must be up to date.
It does mean that the employer can take the refusal as a guide and then improve one’s circumstances in order to meet that criteria at time of decision in the AAT, noting that it takes up to 2 years from the date of AAT application and the date of hearing.
A couple of quick practice points. Where labour market testing (LMT) is required, ensure that the contract is not signed prior to the end of LMT! Further to Australia’s international treaty obligations, exempt the following passport holders or some permanent residents from LMT:
citizen/national of China, Japan, Mexico, Thailand or Vietnam; or
citizen/national/permanent resident of Canada, Chile, Korea, New Zealand or Singapore.
There are also some very tricky further LMT exemptions. A foreign employer can set up a separate company in Australia and may therefore exempt an employee from LMT and there are further exemptions if the person has worked for the employer in the nominated position for 2 years.
Returning to the AAT, success is all about evidence, evidence and evidence, not assertions and it must be up to the minute evidence on all criteria.
My approach is to do pre-hearing submissions to set the agenda at the AAT and back that up as necessary with statutory declarations packing out the evidence. Note nowadays with the ever-present prevalence of fraud, statutory declarations are far more preferable and should be backed up with photographic ID evidence of the deponent showing the deponent’s signature (as a further practice point the bottom of each page of the statutory declaration should be signed by the deponent and the qualified witness).
Obviously up to date tax returns need to be provided or managerial accounts signed off by an accountant.
Generally one does post hearing submissions to lace up anything which may still be in dispute.
All of the above is gone through in huge detail at the next workshop/webinar on Saturday 22 October 2022. Look forward to seeing you there.