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Subclass 445 Extended Eligibility Visa: Meeting the Dependency Requirement

The Applicant requested ministerial intervention pursuant to section 351 of the Migration Act in relation to a decision of the MRT.

The Applicant entered Australia on a student visa. Shortly after, the Applicant’s mother married an Australian citizen and lodged an application for a partner visa with three of her children as listed as dependents. The Applicant completed their degree and was then employed as a Registered Nurse. The Applicant then applied for a subclass 445 visa but later withdrew the application after being notified by DIAC that the dependency requirement of the visa would not be met.

The Applicant’s student visa then expired but the Applicant was later granted a bridging visa. The Applicant applied for another student visa but was refused because the Applicant was not on a substantive visa at the time the application was made. The Applicant then applied to have the decision reviewed by the MRT, however the original decision was affirmed. Immigration Solutions Lawyers (ISL’) was then instructed to make a request for ministerial intervention on behalf of the Applicant.

ISL submitted that it was unreasonable that the Applicant was not able to meet the visa requirements for the subclass 445 Extended Eligibility visa. The Applicant failed to qualify for it because the Applicant was unable to meet the dependency requirement; the Applicant was financially independent and no longer dependent on the mother. However, the Applicant had only been working as a Registered Nurse for a short period of time only, and during the period when the application was being processed. The Applicant’s mother and siblings had already been granted permanent visas and therefore the whole family was residing in Australia. The Applicant had no other family or relatives in the home country. The Applicant also still needed the mother and family despite being over the age of eighteen. Under these circumstances, ISL argued that it was unreasonable to deny the Applicant the opportunity to remain in Australia with the family.

However, the Tribunal also noted that the Applicant did not hold a substantive visa at the time the student visa application was lodged and that the student visa application was not lodged within 28 days after the last substantive visa expired. ISL submitted that the Applicant had made an error; the Applicant applied for a subclass 445 visa without seeking any legal advice first. If the Applicant had known that a substantive visa could not be applied for while on a bridging visa, the Applicant would have immediately applied for a further student visa which would have been lodged within the 28 day period. The Applicant did not have any legal representation at that stage and was not aware of the time period limitation.

The Minister decided to exercise their power to intervene and substitute the decision of the MRT with a more favourable decision. ISL was successfully able to secure a grant of a Special Eligibility (class CB) Former Resident (subclass 151) visa. This case demonstrates why it is so crucial to seek the assistance of a registered migration agent and immigration lawyer; the visa requirements and legislation can be very difficult to interpret.

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