# 175 visa rejected



## apdhinesh (Nov 9, 2009)

Hi People,
I had applied for a visa 175 in November 2007 but now i find that my case has been rejected stating my employment verifications was not satisfactory. I'd like to know what can be done further or can i change that to 176 skilled sponsored or would they refund the visa fee?. I applied through an agent. I pity myself and it has been disgusting reply from diAC. Guys, plz guide what needs to be done.
class: ve 175 skillled
asco code: 2126-11
CSL and MODL


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## aba (Oct 29, 2009)

apdhinesh said:


> Hi People,
> I had applied for a visa 175 in November 2007 but now i find that my case has been rejected stating my employment verifications was not satisfactory. I'd like to know what can be done further or can i change that to 176 skilled sponsored or would they refund the visa fee?. I applied through an agent. I pity myself and it has been disgusting reply from diAC. Guys, plz guide what needs to be done.
> class: ve 175 skillled
> asco code: 2126-11
> CSL and MODL


This is difficult to answer as there is not much information in your post. You state that the application was rejected because of employment. Did DIAC request further information in this regard or did they contact your employer directly? It appears strange that an application lodged in 2007 is only decided now, considering that your occupation is both MODL and CSL. I can only assume that further information was requested by the department during processing.

If your application has been refused you will have to lodge another application and pay the application fee again. As you have a CSL occupation the new application will receive priority assessment.

The decision as to weather to apply again will depend on the specifics contained in the refusal letter.

Raul T Senise Registered Australian Migration Agent, MARA No. 0636699


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## lordhactar (Nov 27, 2009)

My 175 was refused as well. The reason was I didn't submitted an IELTS Certificate. . The case officer responded on the 23rd of October 2009, she told me that I have to submit the IELTS Certificate or lose my visa. The thing is that I lodged my visa last May 2009 prior the changes of the English Language Ability. However, when I told her that I booked for an IELTS examination on the 9th of November 2009. Four days after the case officer responded, she emailed me that my visa has been refused w/o any appeal.

At first, the case officer gave me a 28 day period to submit all of my requirements. In FOUR DAYS ONLY. What happened to the 28 day period??? Very unacceptable isn't it?

I lost $2,150.00 for the application. Now, I am re-applying for 176 and I have to pay the same amount just to apply for another one. Likewise, I will wait for my nomination coming from my employer and it will take ages to be completed.


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## xdorota (Dec 1, 2009)

Hi there,
each of you seems to have been treated outragously harsh. If I were you I would complain through feedback on DIAC site and to the Commonwealth Ombudsman. DIAC officers have to be stopped. The Minister is not aware of this kind of behaviour unless the matter goes to court and, then, only when the court directs that he be made aware. The more people complain the better the chance that the Commonwealth Ombudsman will make recommendations to the Minister for change and the Minister will do something to retrain his staff. The DIAC workers have been corrupted by Mr Ruddock when he was in charge of DIAC and it was almost like it was an unwritten policy to reject, you got a feeling officers were highly rewarded for each rejection, it was almost like they had this sadistic satisfaction in separating young children from their mothers and brothers from sisters, husbands from wives. Some of the reported immigration court cases are stronger than best horror movies. You must have been unlucky and got an officer from the old stock.
You may consider applying to court and argue jurisdictional error (where an officer acts outside of the powers given to him/her). In terms of benefit to the public it would be the best option but it is costly and may be risky. If you can apply for 176 this is a much cheaper and better option.
However, I would advise anyone who is rejected to apply under Freedom of Information Act to obtain copies of all documents that DIAC has on you before applying for any further visa. This only costs $30.00 but will give you inside information as to why you were really rejected. FOI file has almost everything, including DIAC's internal communication between officers in your case. You may find that DIAC were communicating to your agent requesting documents but the agent had not replied. Then you may be able to complain against the agent and/or get your fees refunded by the agent. Here is a link to the FOI form
http://www.immi.gov.au/allforms/pdf/424a.pdf
Also links to some cases to back up what I said above
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/1993/503.html?query=^fuduche
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2003/1570.html?query=^terera

Good luck and keep us posted on your efforts

dorota


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## shattered dreams (Dec 5, 2009)

i would like to join this thread. i am a newbie here. my application was refused as well due to same grounds but with some complications.

i applied using an agent (unfortunately non MARA) in Dec 07, paper based, CSL, MODL. Agent sent docs to ASPC without the ielts as i was booked after she sent out the documents via courier. 15 Jan 2008, an email from ASPC invalids was received saying the credit card was declined twice (due to maximum daily limit per transaction). Agent sent payment via bank draft and was processed by ASPC on 22 Jan 2008, which is should be technically the lodgment date. I did my 1st IELTS 12 Jan 2008. But DIAC acknowleged my application on Dec 2007 (when they received the documents without the payment). Agent did not submit the 12 Jan 2008 IELTS results because I had a 6.5 and all 8 in the other modules. I resat IELTS in April, 2008 and got favorable scores, this was submitted to DIAC. I was refused because DIAC only had the Apr 2008 results which was taken after the lodgement date. My agent was negligent on this part for not submitting the 12 Jan 08 IELTS.

To complicate matters, the refusal was dated 05 Mar 2009, but through persistent calls to DIAC in Oct 09 (even if I was not authorized), I learned that the decision was already made and sent to my agent way back March, to which my agent denied having received. It would have not mattered if i have an option, but I turned 45 last year.

1st letter to DIAC in Nov 09, agent noted that if the date of lodgment was the date of the actual payment made, therefore 22 Jan 08, then my 12 jan 08 IELTS would suffice as a lodgment requirement. However, CO questioned why my agent never questioned the dates at the outset. 

175 has no right of appeal. 2nd letter from DIAC stuck with their decision not to review the application. My agent sent a feedback/complaint and we are awaiting for the reply (in 10 days they said). Obviously, the decision was due to the mistake (gross negligence) of my agent. In this case, can I still make a complain with the Ombudsman or will the Freedom of Information Act help me?

your input will be highly appreciated. thanks in advance.


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## patricia23 (Oct 24, 2009)

Did not your agent assist you? Requesting you to submit more documents
that could act on the behalf? Well, that's what is the use of having an
agent. What is your agent saying about the decision? Were you not
informed or requested before the decision was taken?



apdhinesh said:


> I applied through an agent. I pity myself and it has been disgusting reply from diAC. Guys, plz guide what needs to be done.
> class: ve 175 skillled
> asco code: 2126-11
> CSL and MODL


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## aba (Oct 29, 2009)

xdorota said:


> Hi there,
> each of you seems to have been treated outragously harsh. If I were you I would complain through feedback on DIAC site and to the Commonwealth Ombudsman. DIAC officers have to be stopped. The Minister is not aware of this kind of behaviour unless the matter goes to court and, then, only when the court directs that he be made aware. The more people complain the better the chance that the Commonwealth Ombudsman will make recommendations to the Minister for change and the Minister will do something to retrain his staff. The DIAC workers have been corrupted by Mr Ruddock when he was in charge of DIAC and it was almost like it was an unwritten policy to reject, you got a feeling officers were highly rewarded for each rejection, it was almost like they had this sadistic satisfaction in separating young children from their mothers and brothers from sisters, husbands from wives. Some of the reported immigration court cases are stronger than best horror movies. You must have been unlucky and got an officer from the old stock.
> You may consider applying to court and argue jurisdictional error (where an officer acts outside of the powers given to him/her). In terms of benefit to the public it would be the best option but it is costly and may be risky. If you can apply for 176 this is a much cheaper and better option.
> However, I would advise anyone who is rejected to apply under Freedom of Information Act to obtain copies of all documents that DIAC has on you before applying for any further visa. This only costs $30.00 but will give you inside information as to why you were really rejected. FOI file has almost everything, including DIAC's internal communication between officers in your case. You may find that DIAC were communicating to your agent requesting documents but the agent had not replied. Then you may be able to complain against the agent and/or get your fees refunded by the agent. Here is a link to the FOI form
> ...


Wow Dorota,

You seem to have reached a conclusion with almost no facts about each decision available to you.

Both posts about refusals have very little information and in no way enough detail to draw any conclusions as to the fairness or otherwise of the decision.

Some of your statements are extremely harsh and in my experience very wrong.

I do not see your post as helpful but damaging and instilling unnecessary fear. I wonder what you base your comments on?

Raul T Senise Registered Australian Migration Agent, MARA No. 0636699


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## xdorota (Dec 1, 2009)

O.K. maybe in apdehinesh's case there was some breakdown of communication between DIAC and the agent, but in lordhactar's case, clearly, the decision was made in bad faith. In fact, I believe this matter should be taken to court. My strong view is supported by the cases quoted above and hundreds of others that I have read and/or been involved in, I'll be happy to provide further links to cases which clearly show that DIAC officers have treated the applicants almost with contempt. You also have to keep in mind that the cases reported are only those that were fought by the Minister (or rather his legal team) to the end. Most of the cases taken to court settle prior to final hearing and are not reported. This is not to say that there are people within DIAC that act fairly and reasonably. I said that they must have been unlucky.
Cheers,
Dorota


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## aba (Oct 29, 2009)

xdorota said:


> O.K. maybe in apdehinesh's case there was some breakdown of communication between DIAC and the agent, but in lordhactar's case, clearly, the decision was made in bad faith. In fact, I believe this matter should be taken to court. My strong view is supported by the cases quoted above and hundreds of others that I have read and/or been involved in, I'll be happy to provide further links to cases which clearly show that DIAC officers have treated the applicants almost with contempt. You also have to keep in mind that the cases reported are only those that were fought by the Minister (or rather his legal team) to the end. Most of the cases taken to court settle prior to final hearing and are not reported. This is not to say that there are people within DIAC that act fairly and reasonably. I said that they must have been unlucky.
> Cheers,
> Dorota


On what do you base this comment about bad faith and going to court on?

With the limited information provided it appears that in lordhactar's case, the correct decision was made according to the Regulations.

In May of 2009 when the application was lodged, English language was a "Time of Lodgement" criteria (and still is). This means that at time of application, proof of English language must be provided.

It appears that no IELTS test had been provide when the application was lodged. The case officer could have refused the application at this point. Instead the case officer requested proof of English. When they were advised that an IELTS test had not been done prior to lodgement and was booked for November (6 months after lodgement) the application was refused, as English language requirements were not met at time of lodgement, as required by the regulations.

I do not dispute that case officers make mistakes, however, your comments in this regard are incorrect and I wonder if you are familiar with the Migration Regulations at all?

Raul T Senise Registered Australian Migration Agent, MARA No. 0636699 
Home


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## xdorota (Dec 1, 2009)

Hi Raul,
I am very familiar with regulations and note that there is no requirement in Schedule 1 that IELTS results be provided. Schedule 2 provides that at time of application the applicant has to have competent English. It's only when you go to the definition of 'competent English' that you find that the applicant has to 'satisfy' the Minister of his English level by providing IELTS results. I am also aware that PAMs say that IELTS results should be provided at time of application. Nevertheless, I still believe that this decision is challengable in court. In interpreting the Regulations the court looks at the purpose of the Act and what the Regulation is trying to achieve, here: to ensure that skilled migrants have a certain level of English so that not only they can work and communicate at work but also they can transfer the skills by teaching others. That purpose is not achieved at all by requiring production of IELTS at the time of application, although it may assist in processing and, therefore, may serve some procedural purpose (CO wouldn't have to follow up on the test results). The problem with achieving the procedural purpose is that in this case the CO had followed up, was requested to wait three weeks and then refused. To me it's clearly acting in bad faith. Also, to comply with Reg 1.15 you have to 'satisfy' the Minister of your English language level. You can only satisfy the Minister when s/he considers the matter and achieves, in his/her mind, a state of satisfaction. It does not happen at the time of application, when it is queued. Also, Regulations should not be interpreted literally with absurd results. Have a look at Kamal's case
Minister for Immigration and Citizenship v Kamal [2009] FCAFC 98 (21 August 2009)
Again I find it hard to believe that the Minister and his legal team fought this through to the Full Federal Court of Appeal level and then conceded that they were wrong, all at taxpayer's expense. Don't get me wrong, I have a lot respect for Senator Evans and hope under his wing DIAC will be humanised!!!
Cheers
Dorota


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## aba (Oct 29, 2009)

Hi Dorata,

I take your point about the purpose of the English language criteria although do not entirely agree with your interpretation of its purpose. I believe that the English language is a time of lodgement criteria, partly to avoid applicant’s taking multiple tests during the processing of the application and thus delaying processing. Also, as there are on shore options such as 885 visas, it avoids people applying when they do not meet English language criteria, being granted a bridging visa and then delaying processing while they try to improve their English.

I do however, think it is a bit harsh that English is not in schedule 1 and thus allows one to make a valid application and pay their money, only to be refused on schedule 2, time of lodgement criteria, for not having English. 

What does surprise me is the number of people who still lodge applications without an IELTS test because a friend told them to, or friend did it that way years ago and are then surprised when their application is refused. English has now been a time of lodgement criteria for a long time.


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## xdorota (Dec 1, 2009)

Dear shattered dreams,
I have written a long reply with advice but, unfortunately, the system did not accept it (something to do with loging in since uploading a window???) So, rather than re-doing my advice I simply say that you have get your FOI file asap and then you can complain to the Ombudsman but only about DIAC, not the agent. However, this will not give you a visa. Also, just because they say you do not rights of review, doesn't mean you can't take them to court. It might be a difficult, lengthy and costly process but many people succeed.
What is your occupation? Maybe you qualify for 'exceptional circumstances' regarding age and could get in through some other door?
When you get your FOI file I can look at it, if you wish, and advise more. You may contact me via e-mail [email protected].
I think there may still be some hope in your case.
Regards,
dorota


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## s003khs (Jan 9, 2010)

*175 Visa Refusal*

Hi,
I applied for 175 and my application was lodged on August 14,2008 and was refused on November 23,2009 with the reason that my IELTS score was not with the application at the time of lodgment, I received an email from the department giving me 28 Days to submit the result and I did that. I did not provided the IELTS score as my degree was from United States of America (Computer Engineering). As Engineer's Australia also require proof of English in form of IELTS score but in my case they recognized my qualification with out asking for IELTS score.
this confused me so when I filed with DIAC I was under the impression that I have demonstrated my English ability to the required level as Engineers Australia is a government organization ( my assumption).If some one can guide me that will be great as to weather can I get my money back and than apply or there are any other avenues of appeal. As the letter said I have no right of review.


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