Another Case Illustrates That “Time of Application” Criteria for 485 Visas Likely to Be Applied Strictly
The Temporary Graduate visa – subclass 485 – is the logical “next step” for visa holders who have completed a course of study in Australia, and who wish to remain in Australia to work for a period of time.
And the requirements for obtaining a Temporary Graduate visa appear to be simple and straightforward, so it is very common for students to lodge applications without the involvement or assistance of a Registered Migration Agent.
However, a case recently decided in the Federal Circuit Court by Judge Riethmuller, Rahim v Minister for Immigration & Anor (2018) FCCA 1814 (21 June 2018) illustrates that when it comes to Schedule 2 of the Migration Regulations 1994, things are seldom as simple as they seem, and unforeseen pitfalls can arise which may prove fatal to the visa application.
The visa criterion that was at issue in the Rahim case was regulation 485.213, which requires that when the application for the Temporary Graduate visa is made, it must be accompanied by evidence that the applicant and all other persons who are included in the application who are at least 16 has applied for an Australian Federal Police check during the 12 month period immediately before the application is made.
What apparently happened in Rahim was that the applicant did a search on Google for “Australian Police Checks”. This Google search produced results which included, at the top of the page, an advertisement by an organization known as “cvcheck.com” offering AFP checks. There was a note on the cvcheck.com Website, apparently in relatively small type that the national police checks that could be obtained through that site could not be used for immigration purposes. It was the applicant’s evidence that he did not notice that disclaimer on the cvcheck.com site.
The applicant proceeded to order and pay for a “National Police Check” through the cvcheck.com advertisement. The applicant then received a document that was identified as a “National Police Check” which showed that he had no criminal history in Australia.
The applicant then lodged the National Police Check that he had obtained from cvcheck.com with his application for the Temporary Graduate visa.
Unfortunately for the applicant, the Tribunal found that the National Police Check document that had been generated by cvcheck.com was not an Australian Federal Police Check, and that, accordingly, the applicant had failed to satisfy regulation 485.213.
And, doubly unfortunately for the applicant, the problem was not curable.
Even though the applicant had obtained an actual Australian Federal Police Check and had lodged it with the Department as soon as he had learned that the document he had gotten from cvcheck.com was not the document that was required, he was nonetheless not able to salvage his application.
That was because regulation 485.213 requires that the application for the AFP check must be made before the application for the Temporary Graduate visa is made; an application for the AFP check that is made after the visa application is lodged cannot meet the requirements of the regulation.
Even though Judge Riethmuller observed that the “technical nature” of the Migration Regulations had potentially caused a “significant injustice” to the applicant, Judge Riethmuller concluded that the Tribunal had not committed error by finding that the applicant did not satisfy the criteria for the grant of the visa.
So, here’s another case that teaches how strictly and inflexibly the Migration Regulations can be applied, and how little scope there is for an applicant to argue that extenuating circumstances should excuse noncompliance.
And it’s another case that shows that even though it may appear that meeting the requirements for the 485 visa may seem to be simple and straightforward, there are dangers and traps that may not be obvious, and that can cause an application to fail!