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Easy–peasy–pumpkin–easy?
Is an application for a Temporary Graduate – Subclass 485 visa as “easy as pie”?
Is it true that there is “nothing more to it” than finishing one’s studies in Australia, then submitting your application on-line through ImmiAccount?
And then you’re off and running, next steps a Subclass 482 visa, then permanent residency through the Employer Nomination Scheme, then Australian citizenship?
Well if you have a look at the decisions of the Federal Courts on Austlii, it’s quite evident that “it ain’t necessarily so”, and that in fact it is not uncommon for applications for this seemingly easy to obtain visa do go off the track, do get refused, and often are not “rescued” either through merit review proceedings before the Administrative Appeals Tribunal or judicial review proceedings in the courts.
A good example is the case of Lumbini & Ors v Minister for Immigration & Anor (2018) FCCA 1142 (22 May 2018).
In this case, the application for the Subclass 485 visa was made by a citizen of Nepal, who included her husband and daughter in the application as members of her family unit. The application was made on 15 March 2016.
Where this application ran into difficulty was with clause 485(1) of Schedule 2 of the Migration Regulations 1994.
This regulation requires that when the application is made, it must be “accompanied by” evidence that the applicant has adequate arrangements in Australia for health insurance.
What happened is that the applicant had obtained health insurance from Bupa, which had issued a letter on 10 March 2016 (a few days before the application was lodged) stating that health insurance for all the applicants would be effective as of the date of the application, 15 March 2016.
However, for reasons that are not explained in the court’s decision, the evidence of the health insurance was not provided at the time that the application was made. And even though the Department had sent a letter in May 2016 asking for the evidence of the insurance, it was not submitted in reply to that request either (apparently because the applicant’s name had been mis-spelled on the letter). It was explained to the Tribunal that the failure to provide the evidence of the health insurance was the result of an error on the part of the applicant’s migration agent.
So here we have a situation where as a matter of substance, the applicant did satisfy the criterion for the grant of the Subclass 485 visa. However, the application was refused by the Department becausethe applicant had not met the requirement to submit evidence that she satisfied the criterion “at the time the application was made.
At the hearing before the Federal Circuit Court, one of the submissions that was advanced by the applicant’s legal representative was that at the time the application was lodged, the Department already had evidence that the applicant had made arrangements for health insurance as it had evidence that she held Overseas Student Health Cover.
However, this submission did not “fly”, as that OSHC had ceased on the same day that the application was lodged.
The Federal Circuit Court (Judge Emmett) also held in Lumbini that the Tribunal did not have any “residual discretion” to consider whether the application had been “accompanied by” evidence that the applicant had made arrangements for health insurance.
The Court arrived at this conclusion notwithstanding the fact that there has been a series of court decisions – including Anand and Gulati – which have held that the phrase “accompanied by” should be interpreted as having some “elasticity” or “flexibility”, and may not mean that the evidence of health insurance absolutely must be submitted “at the same time” as the application.
Indeed, it may not even be possible to lodge the evidence of health insurance simultaneously with an application, as ImmiAccount may only allow the evidence to be “uploaded” after the main body of the application has been submitted.
The Anand decision does suggest that there must be some “temporal connection” between the lodgment of the application and the submission of evidence that is required to “accompany” the application, and that while it may be possible to provide the evidence “a day or so” after the date that the application is lodged, or even to give assurances that the evidence will be provided in a week (so long as the evidence is actually provided in that time period).
However, Anand also suggests that the flexibility inherent in the phrase “accompanied by” is not unlimited, and that providing the evidence several months after the application is made will not be sufficient.
So, several lessons emerge from the Lumbini case:
It would always be best practice to have the evidence of health insurance in hand at the time that the application is lodged, and to upload it immediately after the application is filed electronically.
If for some reason there is an unavoidable delay, it should be communicated to the Department that the applicant will seek to obtain the evidence, and the evidence then be provided within a very short period of time.
And if the Department indulges the applicant by sending a letter asking for evidence of the health insurance, it is imperative that the evidence be submitted within the time frame specified by the Department (and if there are issues, such as the mis-spelling of the applicant’s name in a letter from the insurer, the evidence should nonetheless be provided immediately and then a further submission made to the Department as soon as possible explaining the mis-spelling (or other problem).
So It ain’t always “easy-peasy-pumpkin -easy”!
Too bad that it isn’t!!!!!!!!!!!!
That's why there are Registered Migration Agents out there to help navigate the maze!!!
"That's why there are Registered Migration Agents out there to help navigate the maze!!!"
I am assuming the applicant's migration agent was registered. He or she would not be the first to have made errors submitting an application for a Subclass 485 visa.
A review of tribunal cases reveals a not uncommon error of, not provide evidence of having applied for an Australian Federal Police check in the 12 months before you apply.