The Temporary Graduate subclass 485 visa can be a great option if you are an international student and you have recently completed your studies in Australia. But due to the complexity involved in interpreting and applying the relevant migration provisions, international graduates continue to get caught out on the graduate visa.
An application for a graduate visa is required to be made onshore, which means that you can continue to reside in Australia whilst you await a decision on your application. In the most common scenario, upon lodgement of your graduate visa application, you will be granted a bridging visa, which will come into effect when your student visa expires. Done properly and provided you meet all applicable eligibility criteria, moving from a student visa to a graduate visa should be a relatively seamless process, all of which is completed onshore.
To ensure that you don’t miss out on your chance for a graduate visa, it is crucial that you lodge a complete and correct application We therefore strongly recommend that you seek professional advice from a migration agent or immigration lawyer if you are considering applying for a graduate visa, to give yourself the best chance of a successful result.
Some of the key aspects that must be addressed when lodging a graduate visa application include the Australian Study Requirement, which relates to your course of study and aspects of your student visa (and which is subject to a strict deadline to qualify). Appropriate health insurance cover must also be arranged, with Immigration policy outlining acceptable policies and how this ties in with your Overseas Student Health Cover (OSHC) held as part of your student visa. Both of these eligibility aspects apply to the Graduate Work and Post-Study Work streams.
In this article, we discuss some of the more common mistakes that international student graduates make when lodging their graduate visa applications, the types of matters to watch out for to avoid an invalid application or visa refusal and the potential implications of an unfavourable decision. Some of the key aspects that must be addressed when lodging a graduate visa application, being the Australian Study Requirement and arranging for a compliant health insurance policy, are also discussed in more detail.
What are the potential consequences of making a mistake on your graduate visa application?
Making a mistake on your graduate visa application may result in an invalid application, or a refusal decision, both of which can have serious impacts on your ability to re-apply for a graduate visa, or other visa, whilst you remain onshore. One requirement for lodging a valid application is that you must apply within 6 months of holding your student visa. Further, to qualify for visa grant, you must lodge within 6 months of completion of your course (to meet the Australian study requirement as noted above). This time restriction can limit your ability to re-apply for a graduate visa should your application be deemed to be invalid, for example.
Even more serious would be a situation where your application is refused as this can give rise to a section 48 bar coming into effect. Section 48 of the Migration Act applies in the following scenario:
- You are onshore;
- You do not hold a substantive visa (which is a visa other than a bridging, criminal justice or enforcement visa); and
- Since you last entered Australia, you have had a visa refused.
If your graduate visa application is refused and section 48 applies, you will be severely restricted in the types of visas which you can then apply for whilst you remain in Australia (partner, humanitarian and other less common visa classes). A graduate visa would not be an option in this case. If you are not eligible for one of these specified visas, you would be required to depart Australia and re-consider your options.
If you still have the option to apply for a graduate visa should you depart and then return to Australia (and still meet the 6 month application deadline noted above), you would need to apply for another visa type, such as a visitor visa, to allow you to re-enter Australia to apply for the graduate visa (as it can only be applied for onshore). Grant of a visitor visa is dependent on satisfying a ‘genuine temporary entrant’ (GTE) requirement, which may be a difficult case to argue in such a situation, based on your visa history regarding the graduate visa refusal. The GTE requirement is concerned with ensuring that you genuinely intend to enter and remain temporarily in Australia for the purpose for which the visa is granted.
A visitor visa granted under the tourist stream requires that you intend to visit Australia to visit an Australian citizen, or Australian permanent resident who is a specified family member, or for any other purpose that is not related to business or medical treatment.
In assessing this criterion, the Department will consider your previous travel to Australia and whether you complied substantially with the conditions to which your last substantive visa, or any subsequent bridging visa, was subject. It will also assess whether you intend to comply with the conditions to which the visitor visa would be subject and any other relevant matter. This would include consideration of previous visa applications you have lodged in Australia, and thus your refused graduate visa.
Even though an intention to enter Australia on a visitor visa to make a further visa application onshore does not automatically indicate a genuine temporary stay in Australia, according to Immigration policy, and is thus not a reason of itself to refuse the visitor visa, your application is likely to face a greater level of scrutiny (and thus a higher chance of a refusal). In considering your application and whether you meet the GTE requirement, the Department will assess the following question:
‘if you do not apply for another visa in Australia, or if you apply and are refused, will you abide by the conditions of the visitor visa and leave Australia?
Although policy is not binding on the Department, it is still very useful as a guide to how it is likel to decide an application and the types of matters it considers in reaching its decisions.
Why is it so critical to get it right when applying for a graduate visa?
Missing your chance to apply for a graduate visa can have serious ramifications for your visa pathway in Australia, especially if your intention is to eventually apply for permanent residence. A graduate visa provides you with a valuable opportunity to prepare for and take the necessary steps to qualify for a further visa, particularly a skilled visa.
In summary, you can use your time to:
- Gain skilled work experiencewhich may be required to obtain a positive skills assessment in your nominated skilled occupation and which is also relevant to the points test for a points-tested skilled visa;
- Prepare for and complete an English test, to meet the English language requirement (which applies to all skilled visa classes);
- Prepare your skills assessment application and/or use the time to take the necessary steps to meet eligibility criteria for receiving a positive skills assessment;
- Prepare and take the necessary steps to qualify for State Sponsorship (this is relevant for the Skilled (Nominated) subclass 190 and Skilled (Regional) subclass 489 visas);
- If you are intending to apply for a points-tested skilled visa, once you become eligible for the relevant visa and whilst you hold your graduate visa, you can submit your Expression Of Interest (EOI) and still remain in Australia (dependent on your graduate visa expiry date) whilst you await receipt of an invitation to apply for the relevant visa. If the invitation is received whilst you still have a valid graduate visa, you can then proceed to lodge your skilled visa application from onshore. Because the application for the skilled visa will result in grant of a bridging visa, you will be able to continue to reside in Australia whilst you await processing of your skilled visa application (the bridging visa will come into effect upon expiry of your graduate visa and will have the effect of retaining your legal status to remain in Australia);
- If you are seeking to apply for an employer sponsored or nominated skilled visa, you can use the time as a graduate visa holder to locate potential employers and work for a period of time to demonstrate your knowledge and skills, and potentially receive an offer from your employer to sponsor or nominate you for a skilled visa.
The above reasons demonstrate why making a mistake on your graduate visa application can negatively impact on your future plans for residence in Australia, especially if you are planning to apply for a permanent residence skilled visa. It provides a valuable opportunity for you to take the necessary steps to prepare for and qualify for a further visa, whilst still remaining in Australia.
Please refer to our article on ‘Top 5 Graduate Visa Tips/How to spend your time on a graduate visa wisely’for further information about what you can do whilst a graduate visa holder to prepare for a future skilled visa application.
What are the types of mistakes that applicants commonly make when applying for a graduate visa?
To help you to avoid making an error on your application, please refer to our articles on the ‘Most common refusal reasons for graduate visas’ and ‘Top 5 Graduate Visa Tips/How to spend your time on a graduate visa wisely.’
I have not studied for 92 weeks in Australia, am I still eligible?
To qualify for a graduate visa under both the Graduate Work and Post-Study Work streams, the standardisation of each course completed in Australia and which is used to meet the Australian Study Requirement must be registered for a minimum period of 92 weeks. You must satisfy this criterion to apply for a graduate visa.
Determining whether you have met this requirement can be quite complex, especially if you have received unit credits for previously completed courses and/or subjects and we therefore recommend that you obtain professional advice if this situation applies to you.
I already have OSHC do I need new health insurance?
You may provide evidence of your Overseas Student Health Cover (OSHC) at time of lodgement of your graduate visa application provided you hold a Student Visa at that time. However, OSHC is not adequate cover for visa grant purposes. You will therefore need to make other appropriate arrangements for health insurance in accordance with graduate visa requirements.
Please refer to our article on the ‘Most common refusal reasons for graduate visas’for further information about health insurance for graduate visas.
In conclusion, we note that the above discussion provides an overview of the potential consequences of making a mistake on your graduate visa application, why is it so critical to get it right and the types of mistakes that applicants commonly make when applying for a graduate visa. Some of the key aspects that must be addressed when lodging a graduate visa application, such as meeting the Australian Study Requirement and making arrangements for a compliant health insurance policy, are also discussed in more detail.
Australia’s migrations laws are complex, and each case is different. We recommend that you seek professional advice before you proceed with applying for a graduate visa, as being fully informed about the process and requirements that apply will prevent you getting caught out when lodging your application and likely also to give you the best chance of achieving a successful outcome.
Several terms mentioned in the above article are defined in the migration provisions. It is vital to have a good understanding of these terms and how they apply in practice. Detailed advice about these is beyond the scope of this article and we would therefore recommend that you seek further information in this regard.
For up to date advice on the graduate visa process and requirements, and how to avoid a refusal, book your confidential consultation with a migration agent in Adelaide. PAX Migration Australia is a leading immigration advice service based in Adelaide, and we aren’t expensive! Just ask us!