Last Friday the MIA sent out a major alert:the Department of Home Affairs has updated the Subclass 485 visa rules. From 25 November, the COVID-era concession — which allowed time spent studying online offshore on a student visa to count as Australian study time — has been cancelled!
As everyone knows, during the pandemic, time spent studying offshore on a student visa could be counted as Australian study time. On graduation, provided the other 485 visa requirements were met, applicants could still lodge a 485 visa, and when applying for skilled migration they could also claim the two-year Australian study bonus points.
This concession was put in place mainly because, during the pandemic, many students could not return to Australia to study onshore. Now that it has been scrapped, it means any applicant who lodges a 485 visa — or claims the two-year Australian study points on their skilled-migration EOI — after 25 November, and whose onshore Australian study time does not meet the requirement, will no longer be able to apply for the 485 visa and will face a real risk of refusal on their skilled-migration application.
So, is this change now locked in? Does the Department of Home Affairs not need legislation to give it effect?
This update has been tucked away in a very hidden spot — inside the document checklist for the 485 visa application.
Honestly, if you do not look carefully, it is easy to miss!
In fact, during the pandemic the various 485 concessions — for example, allowing English test results to be lodged after application (because sitting tests during COVID was difficult) — were only supported by updates to the Department of Home Affairs website and the PAM; the Department never introduced dedicated legislation for them, and the ASR legislation itself never changed.
This is different from the earlier pandemic-era concessions we have mentioned — for instance, the rule that certain visas could be granted onshore (but can no longer be). Those changes were all backed by legislation at the time.
So, the question we are being asked most about this change is: what are the current study requirements for lodging a 485 visa?
This part is very clear and is backed by relevant legislation and case law:
– The course registration must be 92 weeks or more; this can be confirmed on CRICOS.
– From the course start date, the applicant must have been in Australia for at least 16 months.
On how the 16 months is calculated —
If you go home during the holidays while enrolled, does the time spent overseas on those breaks count?
Since March 2021 the Department of Home Affairs PAM has stated clearly: time spent overseas for normal holidays is, by default, still counted within the 16 months, even though the ASR website still uses the wording “physically in Australia”.
How is the 16-month start date calculated?
Generally from the course start date. However, if you were not in Australia when the course began, counting starts from the date you entered the country, less any long periods spent offshore (for example, long stretches of online study), and runs through to the end of the course — typically referenced to the course-completion date on the completion letter.
Beyond that, with the 485 visa concession cancelled, what exactly should applicants do?
There are three scenarios —
🔺 For applicants who lodged a 485 visa or a skilled-migration visa before 25 November, this change has no impact on their application.
🔺 For those who have already graduated but have not yet lodged a 485 visa and whose onshore Australian study time falls short of 16 months: they no longer meet the 485 visa requirements and will need to consider enrolling in a new course or other options.
🔺 For skilled-migration applicants whose EOI claims the two-year Australian study bonus points: if they have not yet received a formal invitation, under the new rules they no longer meet the 5-point ASR bonus and must update their EOI. Otherwise, even if they are invited to lodge, they risk a refusal.
In all honesty, this change by the Department of Home Affairs is lawful but not entirely fair.
Although the pandemic era is now behind us, there really were extraordinary periods when many people could not study onshore.
A concession was offered at that time. Even if the Department decided not to extend it any further, the fairer approach would have been to cut off the concession from a forward date only — i.e. anyone continuing to study online offshore on a student visa after 25 November would not have that time counted. Many people chose to study or complete their course offshore specifically because of this concession. Now, with graduation right around the corner, the rules have suddenly shifted — it really does catch people off guard.
Still, a reminder to everyone: plan ahead. According to the Department of Home Affairs’ reply to the MIA, the PAM will be updated shortly. This change is now very unlikely to be reversed — all we can do is face it head-on!
For further 485 visa advice,
scan the consultant contact below to get in touch.
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2023
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