Australian Immigration Daily News

Is applying for a subclass 485 – Temporary Graduate visa as “easy as pie”?

The criteria in Part 485 of Schedule 2 of the Migration Regulations 1994 would “seem” to be straightforward, wouldn’t they?

Step One: Meet the common criteria of clauses 485.212 – 485.215:

• Submit evidence of a satisfactory score on an English language proficiency test;
• Submit evidence that each person included in the application has applied for an Australian Federal Police check during the 12 months immediately before the application was made;
• Make sure that when the application is made, it is “accompanied” by evidence that the applicant has made adequate arrangements in Australia for health insurance;

Step Two: If the application is made under the Post-Study Work stream by a person who has completed a higher education degree, bachelor’s, master’s or doctorate, that the criterion of sub-regulation 485.231(3) is met:

• The applicant’s study for the qualification or qualifications satisfied the Australian study requirement in the period of 6 month ending immediately before the day the application was made.

So is it, to put it in “‘stralian”, tick, tick, tick and tick?

Or rather, tick, tick tick and tock?

Do not ask for whom the bell tolls, it tolls for thee?

Well, a recent case that was heard by Judge Kirton in the Federal Circuit Court, Joseph v Minister for Immigration and Border Protection(2018) FCCA 1478 (25 May 2018)  illustrates that applying for a subclass 485 visa “ain’t” as simple, easy and straightforward as it may appear to be!!!

The situation in Joseph was that the applicant, a citizen of India, had undertaken a Master of Engineering at Deakin University, with the course running from 25 February 2013 – 15 March 2015.

The applicant lodged his application for the 485 visa on 25 June 2015. Well within the 6 month period after he finished the course.

Sweet? Or not? Bitter? Yep!

What went wrong?

This is what happened: After the application was lodged, a delegate of the Minister sent a letter requesting more information and documents, including a letter confirming the completion date of the applicant’s Australian qualification.

This letter was supplied by the applicant and it stated that the completion date for his studies was actually 9 July 2015, a date after the date that he had lodged his application!

Equally, the applicant’s academic transcript also confirmed that he had completed the course requirements on 9 July 2015.

So the 485 visa application was refused by the Department, and the refusal was upheld by the Tribunal, on the basis that it had been lodged before the applicant had actually been certified by his course provider, Deakin Uni, to have completed the course.

And the Federal Circuit Court found that there was no jurisdictional error in this decision.

And the applicant’s attempt to rely on the High Court’s decision in the famous Berenguel case was of no assistance to the applicant.

Remember Berenguel? In that case, the High Court held that a regulation specifying that an English language proficiency requirement could be satisfied “not more than two years before the date on which the application was lodged” could be interpreted to mean that the test results could be lodged after the application was made. 

The problem for the applicant was that the wording of the applicable regulation, 485.231(3), was interpreted by the Court as meaning that the application had to be submitted after the course was “completed”.  And since the supporting documents stated that the applicant had not yet “completed” the course at the time that the application was lodged, it was found that he did not satisfy 485/231(3).

In other words, the requirement that the course be “completed” was taken to be a “historical pre-condition” for the grant of the visa.  And it didn’t matter that, as a matter of substance, the applicant actually had “completed” the requirements for the degree (finished the course).  What mattered was that the date of completion was specified by the uni and by his transcript to have been a date after the visa application was lodged.

So, form over substance?

The outcome was that Australia lost the benefit of having a person who had completed a master’s degree in engineering from contributing to the economy.

A proper result?

The applicant here should not feel “too bad”. I personally ran a case in the FCC earlier this year with a similar fact pattern, where the applicant had applied for the 485 visa on a date earlier than that certified as the date of completion of her course. 

And I too went down in flames arguing against the interpretation of 485.231(3) that was also adopted in Joseph.

So, is getting a 485 visa always “as easy as pie”? Is it nothing more than tick tick tick tick?

Or is it the case that sometimes the sound of “ticking” is a ticking time bomb?