Adeolux

I am a New Zealand citizen living in Australia and applied for a 176 sponsored by my uncle. I recieved an email recently from my case officer requesting for me to complete the sponsorship form and return it to him in 28days. I completed the form in 8days and 10days later i recieved an acknowledgement of a valid application e-mail. I looked in my email yesterday and there was another email from my case officer that my application is now invalid and that my application has been thrown out and i have to go and apply again.
I have been on the queue since January and although i recieved a letter that a case officer will be appointed 3months in February, i did not get one until October and when i did, she requested for me to send the completed sponsorship form because i mistakenly forget to attach it.
The letter also stated that i do not have a right of appeal.
Has anyone been in this situation before? Can you please advise of the steps i can take to address this issue.

Bermudashorts

Sorry but your post is hard to follow.

Why is your application been returned as invalid? I don't get you.

Adeolux

Let me try again. I am a New Zealand citizen living in Australia and i applied for the 176 visa on the 28th January 2011. In error I did not upload form 1277 sponsorship form at the time of submitting my application.
In march, I received an email stating that a case officer would be appointed for me within 3 months of receiving the email.
I received an email on the 5th November advising that a case officer has been appointed to assess my application and upon review he noted that I had not uploaded form 1277. He then requested that I submit the competed form1277 within 28 days of recording this email.
I forwarded the completed form 1277 on the 16th of November, which is still within the 28days requested by the case officer.
On the 27th of November, I received an acknowledgement of a valid email from the case officer and he advised that processing has commenced.
On the 7th of November 2011, I received another email advising that my application is invalid because I was meant to submit form 1277 when i submitted the application on the 28th of January 2011.
He quoted an immigration regulation section 1135(3)(ca) as the grounds for invalidating the application and said that I have right to appeal the decision.
I hope it reads better now.

Adeolux

Correction
On the 27 th November, I received an "acknowledgment of a valid application" email from my case officer.

newjersey

I think you should consult a MARA registered agent, if DIAC is within their right to retract a statement that your application was valid. They very well may be, but better confirm that they did not break the review rules. It is a technicality, but may be a way for you to get your money back, if not to reinstate the current case in the appeal process.

Anyway, in the past few years I can't remember a single thread on the appeal process, so there might be very little public knowledge about this, so again, your best bet is to hire an agent to help you with the review. George Lombard is one of the agents highly recommended on this site, you can also find others with the search function up top.

Bix

Section 1135(3)(ca) is from the Migration Regulations 1994 and this is the actual thing:-
1135. Skilled (Migrant) (Class VE)

(3) Other:

(ca) Applicant seeking to satisfy the primary criteria for the grant of a Subclass 176 (Skilled -- Sponsored) visa must meet the requirements in subitem (3A) or (3B).

(3A) The applicant is nominated by a State or Territory government agency.

(3B) All of the following requirements are met: (a) the applicant is sponsored by a person who:
(i) has turned 18; and
(ii) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
(b) the applicant has declared on the application that the sponsor:
(i) is usually resident in Australia; and
(ii) is related to the applicant, or the applicant's spouse or de facto partner (if the applicant's spouse or de facto partner is also seeking to satisfy the criteria for a Subclass 176 (Skilled -- Sponsored) visa), as:
(A) a parent; or
(B) a child or step-child; or
(C) a brother or sister, an adoptive brother or sister, or a step-brother or step-sister; or
(D) an aunt or uncle, an adoptive aunt or uncle, or a step-aunt or step-uncle; or
(E) a nephew or niece, an adoptive nephew or niece, or a step-nephew or step-niece;
(c) each person who:
(i) is an applicant; and
(ii) claims to be a member of the family unit of the applicant;
is sponsored by the same person;
(d) the sponsorship was entered into on Form 1277 (Internet) or 1277.

newjersey

This quote does not say if it is a time of the application condition. It may say so elsewhere though. And if it does, it would mean the OP initially submitted an incomplete application. Not sure if incomplete equals invalid legally speaking, so it bears repeating, a professional assistance is highly recommended.

Bix

Just a thought.

Did you date form 1277 the 28 Jan 2011 or prior to it?

If not DIAC will say you did not have sponsorship at the time of visa application.

Bix

Bottom line is that I believe form 1277 has to be done at the time of visa application and if it isn't DIAC can throw out the application as invalid. It sounds like that is what has happened.

Rejected invalid applications do not normally have a right of review.

Adeolux please confirm what DIAC said in that respect.
You've given two conflicting answers so far.

If there is no right of review there is no point of going to an agent or hiring a lawyer for an extremely expensive case that would probably fail.

Best to bite the bullet and re-apply.

Adeolux

Below is a portion of the emamil from DIAC regarding the invalidatyion of the application
Your Skilled (Migrant) (class VE) Skilled - Sponsored (subclass 176) visa application does not meet the following requirement of Item 1135 of Schedule 1 of the Regulations.
Subitem 1135(3)(ca) states:
Applicant seeking to satisfy the primary criteria for the grant of a Subclass
176 (Skilled - Sponsored) visa must meet the requirements in subitem (3A) or
(3B).
(ca)
Subitems 1135(3A) and (3B) respectively state that:
(3A) The applicant is nominated by a State or Territory government agency.
(3B) All of the following requirements are met:
(a) the applicant is sponsored by a person who:
(i) has turned 18; and
is an Australian citizen, an Australian permanent resident or an
eligible New Zealand citizen;
(ii)
(b) the applicant has declared on the application that the sponsor:
(i) is usually resident in Australia; and
is related to the applicant, or the applicant’s spouse or de facto
partner (if the applicant’s spouse or de facto partner is also seeking
(ii)
to satisfy the criteria for a Subclass 176 (Skilled Sponsored) visa),
as:
(A) a parent; or
(B) a child or step-child; or
a brother or sister, an adoptive brother or sister, or a
step-brother or step-sister; or
(C)an aunt or uncle, an adoptive aunt or uncle, or a step-aunt
or step-uncle;
(D)a nephew or niece, an adoptive nephew or niece, or a step-nephew or step-niece;
(E)
(c) each person who:
(i) is an applicant; and
(ii) claims to be a member of the family unit of the applicant;
(d) the sponsorship was entered into on Form 1277 (Internet) or 1277
You are seeking to satisfy the primary criteria for the grant of a Subclass 176 (Skilled –Sponsored) visa and have not met the requirements in subitem 1135(3A) or (3B). Therefore, you do not meet the requirement in subitem 1135(3)(ca) of the Migration Regulations.
Assessment
This application was lodged online on the 28 January 2011.
Item 1135(3)(ca) of the Migration Regulations state that the applicant seeking to satisfy the primary criteria for the grant of a Subclass 176 (Skilled - Sponsored) visa, the applicant must either be nominated by a State or Territory government agency (3A) or the sponsored by an eligible relative (3B).
On Form 1276, the applicant indicated that they have been sponsored by an eligible family
member.
- 2 -
Item 1135(3)(ca) of the Migration Regulations state that the sponsorship must be entered into on a Form 1277 at the time of lodgement.
On 5 October 2011 Form 1277 was requested. On 16 October 2011 Form 1277 was received dated after the application was lodged, 11 October 2011.
As the sponsorship Form 1277 was dated after the date of time of lodgement, this application is invalid under Item 1135(3)(ca) of the Migration Regulations.
Invalid applications cannot be accepted or processed. Your application has not been accepted and will not be assessed against the visa criteria for grant or refusal.
Review rights
There is no right of merits review of the assessment that an application is invalid.

Adeolux

This is a copy of the acknowledgement letter recieved on the 27th October 2011.

Acknowledgement of valid application for a Skilled (Migrant) (class VE) visa[/B]This letter refers to your application for a Skilled (Migrant) (class VE) visa, which was lodged electronically on 28 January 2011. You have indicated on your application that you wish to beconsidered for the grant of a Skilled - Sponsored (subclass 176) visa.
This letter confirms that your payment has been receipted and your application has been assessed as a valid application.

Visa Application charge
The visa application charge which has already been paid was for the processing of the application and it must be paid regardless of the application outcome.

Processing your application
Your application has been allocated to a case officer and is undergoing further assessment. If you do not hear from us for a while, do not be concerned. You will be contacted by your case officer about any additional information or documents that may be required in order to make a decision on your application.

Adeolux

Thank you so much for your advice guys.
The problem i have is that we have all done our medicals, and police checks because we were asked to go and do it and its been over a year and we have to do all that again (at $300 per person). My skills assessment will also have to be done again at $580.00 as well
My wife is pregnant at the moment and she can't do the medicals again.
We have to go back in the queue and this may take another 2years before its our turn again, if the laws don't change.
i just don't understand how they can one day acknowledge a valid application and two weeks later invalidate the same application.

Dorothy

This is the important bit here: Item 1135(3)(ca) of the Migration Regulations state that the sponsorship must be entered into on a Form 1277 at the time of lodgement.
On 5 October 2011 Form 1277 was requested. On 16 October 2011 Form 1277 was received dated after the application was lodged, 11 October 2011.
As the sponsorship Form 1277 was dated after the date of time of lodgement, this application is invalid under Item 1135(3)(ca) of the Migration Regulations
Unfortunately, you did not meet the criteria by having your sponsorship forms submitted with your appplication, so your application was invalid. It's the same situation for many applicants who don't submit their IELTS results with their application - they don't meet the criteria, so the application is not valid.

As for reapplying, you don't need to do another skills assessment unless your occupation has changed. You can reuse the one you did. And if your wife if pregnant, you can defer the medical until after the baby is born and add him/her to the application. Either way, you would have had to do the medicals again anyway if it's been over a year. They're only valid for 12 months.

While it is unfortunate, your application was not valid and so DIAC has no choice but to refuse it. Sorry if this sounds harsh; it's not meant to. It's just that you did not submit the required documents at the time of applying, so your application is not valid. DIAC cannot make exceptions for you or they would have to make them for everyone.

The information on the DIAC site regarding 175/176 visas states clearly that there is no appeal for a refused application, so if you truly want to live here you're going to have to reapply. I would suggest you engage the services of a MARA registered migration agent to double check your application before you submit it next time. A couple of hundred $ would have saved you all this hassle and the cost of resubmitting later.

Bermudashorts

Having read through DIAC's points, I think the above is the critical point.

If you had backdated the sponsorship form and just said it had not uploaded properly or something I think you might have got away with it. That it was dated 11th October, after the visa lodgement date seems to be the problem and understandably so.

You will need to start again.

Adeolux

Guys, Thank you so much for your advise.