There are a number of recent and old cases where the applicant for a 485 visa has just followed directions given on a web site (including the Government web site) without seeking professional advice and the visa was refused with devastating consequences. Do not fall in to that trap. 485 Visas are Not as Easy as you think! It can be refused!
The following cases illustrate that applying for a subclass 485 visa “ain’t” as simple, easy and straightforward as it may appear to be!!!
You just need to look at decisions of the AAT and Federal Courts on Austlii, and you will see that it is not uncommon for applications to get refused. It will also be difficult to win through merit review proceedings at the Administrative Appeals Tribunal (AAT) or judicial review proceedings in the courts as evident from the cases below.
- Joseph v Minister for Immigration and Border Protection (2018) FCCA 1478 (25 May 2018)
The applicant, a citizen of India, had undertaken a Master of Engineering at Deakin University, with the course running from 25 February 2013 – 9 July 2015. On 25 June 2018 he applied for the 485 visa before completing his studies. His application for the visa was refused as he did not comply with clause 485.231(3) of the Migration Regulations 1994 (Cth). This decision was upheld by the Administrative Appeals Tribunal.
- Lumbini & Ors v Minister for Immigration & Anor (2018) FCCA 1142 (22 May 2018).
This applicant ran into difficulty with clause 485(1) of Schedule 2 of the Migration Regulations 1994. The applicant lost on a technicality, even though the applicant had health insurance from the time that the application was lodged, the fact that evidence was not provided at the time the application was made nor in response to a letter from the Department seeking further information from the applicant, the Tribunal concluded that clause 485.215(1) was not satisfied. This case also shows the importance of retaining a lawyer for migration matters.
- Nguyen v Minister for Immigration & Anor (2016) FCCA 1523
The applicant sought a review of the decision by the Administrative Appeals Tribunal. The Tribunal had found that documents uploaded to the application 29 days after the application was lodged resulted in the applicant’s application being unaccompanied by evidence as required by clause 485.223. The decision of the Tribunal was upheld.
- Anand v Minister for Immigration & Citizenship(2013) 215 FCR 562
Justice Katzmann concluded that “I am prepared to accept that evidence accompanying an application could be supplied after the application is lodged”.
The two main take home points from these cases would be
- To take professional legal advice from a migration agent who is also an actual lawyer in Australia as opposed to a non-lawyer migration agent.
- The cautious approach would be sure to have available all materials that must “accompany” the application and to upload onto ImmiAccount immediately (at least on the same day!) after an on-line application is submitted.
Conclusion is that the 485 Visas are Not as Easy as you think.