Changes to the Partner visas in the lead up to 10 June 2019, Student visas expiring soon and the common mistakes made in 485 visa applications show how important it is to seek expert advice and guidance. This article highlights those changes, the types of mistakes often made and our recommendations.
Partner Visas – Lead Up to 10 June 2019
In our article dated 11 December 2018, we advised there would be changes made that would impact partner visa applications, specifically, the how and when an applicant will be able to lodge with the Department of Home Affairs and possible ramifications.
Following recent developments, these changes will take effect before 10 June 2019 although the exact date is still unknown. This means, the change can be implemented at any time before 10 June 2019.
Current Process for a Partner Application
Part of the criteria for Partner visa permanent residence requires the visa applicant to be sponsored by an Australian permanent resident, Australian citizen or eligible New Zealand citizen. Together, the visa applicant and their partner submit their applications to the Department of Home Affairs.
Current Entitlements Post Lodgement
Lodging a valid partner visa whilst in Australia allows the visa applicant to obtain a Bridging Visa A (BVA) which will take effect when their current visa expires. The BVA holder will then be able to remain in Australia until a decision is made on the partner application. During this processing time the BVA holder will also be entitled to Medicare and have full work rights.
What Will Change?
The new change will require the Australian partner to lodge their application and have this approved before the partner visa application can be lodged.
It is unclear how long the decision process of the sponsorship application will take. Current process times are approximately 12 to 18 months.
What is the Impact?
The Australian sponsorship application is not a visa application.
Some of the impacts we have already identified indicate that:
- Partner visa applicants with limited time remaining on their current visa will be required to either lodge a valid visa application that will allow them to stay in the country, or depart Australia and remain overseas until the partner visa is granted
- Until a valid visa application is lodged whilst in Australia, the applicant will not be entitled to:
- Full work rights in some instances
When Does the Change Take Effect?
The changes are to effect before 10 June 2019 but, no further details have been released concerning the exact date. Our recommendation is that eligible applicants looking to lodge whilst in Australia, do so as soon as possible.
Student Visas Due to Expire and the 485 Visa
Many international students have just completed their studies which means their student visas will expire soon. So, what’s the next step?
For most, the best way forward will be with a Temporary Graduate subclass 485 visa. This visa is useful in offering full work rights for up to 4 years, or providing additional time for students to complete steps that will help gain relevant work experience or increase their points score when pursuing permanent residence.
However, the 485 visa is more complex than it initially appears and many students find themselves in situations, post-lodgement, that are difficult to rectify. This article highlights where common mistakes are made in lodging a 485 application:
Timing is Critical
The 485 visa application must be lodged within 6 months of course completion. Many students confuse this with the graduation date which can occur many months after course completion date.
Most students will need to apply between the date of completion and the date their student visa expires. Depending on when this is completed, students may have minimal time in which to lodge the application. It’s critical that a complete application is lodged with the Department of Home Affairs as it could otherwise be refused.
Select the Correct Stream
There are two streams within the 485 visa subclass and the correct stream must be selected at the time of lodgement, it cannot be changed afterwards:
- 485 Graduate Work: If you studied in Australia before 5 November 2011, or you studied at a level below a Bachelor degree and have an occupation on the relevant occupation list, then you may be eligible to apply for the Graduate Work stream. This visa is granted for a period of 18 months.
- 485 Post Study Work: If you studied at degree level or higher then you may qualify for the Post Study Work stream. This visa is granted for 2-4 years depending on the level of study
If an application is made in the wrong stream, the 485 visa can be refused. If it is granted, it is likely to have the shorter validity period of 18 months instead of 2 to 4 years, which typically cannot be reversed.
Time of Application Criteria
There are a number of requirements that need to be meet at the time you submit the 485 visa application including the provision of specific supporting evidence.
If you do not provide these documents when the visa is lodged the application will be refused. That decision may be challenged at the Administrative Appeals Tribunal (AAT), however, in this instance the appeal is unlikely to be successful and you may need to leave Australia.
Australian Study Requirement
Many students understand they must meet following as part of the Australian Study Requirement:
- Complete at least one CRICOS registered course over a minimum period of 2 academic years or 92 weeks, and
- ensure the total period of study took no less than 16 months to complete from course commencement to completion date
However, if there has been time spent outside Australian, for any reason such as returning home to complete an internship at a university outside Australia, or to go on holiday etc.., then students may be at risk of not meeting the 16 month study requirement and the application can result in immediate refusal.
Furthermore, the 5 points awarded for meeting the Australian Study Requirement can be lost when applying for a visa in the general skilled migration program.
Where to Be at the Time of Lodgement
It is an exciting time when students complete their studies and many will use this time to visit their families overseas.
It is important to understand that when the course has been completed the university or education provider is required to notify the Department of Home Affairs that this has occurred.
The Department of Home Affairs may cancel the student visa without notice if the student has left Australia at the end of their course. If the visa is cancelled the student will have no right to re-enter Australia unless they obtain another type of Australian visa.
Where possible, we recommend lodging the 485 visa application before leaving Australia as it will show there is an intention to return.
Common Eligibility Criteria
Unlike the general skilled migration program the 485 visa is not points-tested.
The following criteria is common to both the Post Study Work and Graduate Work streams. It is important to ensure that at the time of lodgement:
- under 50 years of age
- meet the English language requirement
- meet the 2 year study requirement
- no more than 6 months have passed between course completion and 485 lodgement
- a substantive visa is held. If this is not a student visa, no more than 6 months can pass following the expiration of the last student visa held
The Partner visa application process may appear straight forward and in some instances this is. However, there are many complexities which can result in refusal with no refund of the visa application fees if you are not aware of some of the little known facts
Similarly, a 485 visa provides students with a great opportunity to stay longer in Australia with full work and study rights but, it can be ruined by making a simple mistake in the application.
In light of the above changes and critical dates we urge partner visa applicants and/or international students with an expiring visa to seek urgent and expert advice on their options as soon as possible.
Expert advice and guidance should be sought from a reputable Registered Migration Agent or practicing solicitor that specialises in Immigration law.
The Advisors at Acacia Immigration are highly skilled in this area and would be willing to discuss your situation further when you book a consultation.