Several features of this instrument are highly likely to catch out applicants and practitioners.
First, the manual lodgement pathway is not a general fallback; it is an emergency override that requires the Department to send a specific authorisation email from a dedicated address. The applicant cannot initiate it. If the applicant realises the internet system is down, they cannot simply email their application; they must wait for the Department to identify the problem and send an authorisation. The instrument does not say that the Department will send such authorisations automatically or promptly. If the Department takes days to identify a problem, an applicant facing a same‑day deadline may miss it. The instrument also does not oblige the Department to give the authorisation even when the circumstances exist. This creates a one‑sided dependency.
Second, the time limit is extremely tight: the completed form and the copy of the authorising email must be sent “by the end of the day on which the authorisation was given” (AEST or AEDST). If an authorisation is emailed to an applicant at, say, 4:00 pm on a Friday, the applicant must have the form ready and email it back by midnight that same day. If the applicant is not at their computer, or if the email goes to spam, or if the attachment is too large, the deadline is missed. There is no provision for extension. This is a recipe for procedural failure.
Third, for Class RN visa applications, there is no manual lodgement option at all. If the Department’s system is down permanently or for an extended period, a subclass 187 applicant has no way to lodge a valid application. The instrument effectively assumes that internet will always be available for this visa class, which may be unrealistic. Applicants looking for permanent solutions to system failures are left without any alternative.
Fourth, the instrument’s specification for nominations and visa applications uses distinct but overlapping circumstances. For nominations (section 7), the urgent circumstance includes the applicant becoming an unlawful non‑citizen, no longer holding a bridging visa mentioned in regulation 5.19(5)(a), or turning 45. For visa applications (section 9), the urgent circumstance includes becoming an unlawful non‑citizen or turning 45, but not the loss of a bridging visa. This asymmetry means that a visa applicant who will lose their bridging visa may not qualify for the manual lodgement of the visa application, even though the nomination for the same employer might qualify. This inconsistency could cause a situation where the nomination is lodged manually but the visa application cannot be, leading to a mismatch.
Fifth, the requirement to include in the email “a copy of the authorising email sent by the Department that includes the name and position number of the officer who sent the authorising email” imposes a verification step. If the applicant fails to include that copy, the application may be invalid. The authorisation email itself must contain the officer’s name and position number; if the Department sends an email without that information, the applicant cannot satisfy the requirement. The instrument does not deal with that case.
Sixth, the concept of “more likely than not” in subsection 7(3)(d) applies to the rectification problem. This is a civil standard, but it is the Department’s own assessment. There is no external check. An applicant has no way to challenge that assessment, and if the Department determines the problem will be fixed by the next business day (even if that turns out to be wrong), no authorisation is issued. The applicant bears the risk of the Department’s error.
Seventh, the instrument does not address what happens if the Department’s internet systems are down but the problem is not identified by the Department (e.g., a DDoS attack that the Department does not immediately notice). In that case, no authorisation can be issued, and no manual lodgement is possible, even though the applicant is unable to apply.
Eighth, the instrument does not specify how an applicant can prove they attempted to lodge via the internet but could not. If there is no authorisation, the applicant cannot later argue that they tried but the system was down; the form and manner requirements are strict. The only safe course is to have a paper trail of attempted lodgement and a prompt complaint to the Department, but even then, there is no guarantee of authorisation.