Understanding Khan v Minister for Immigration & Anor: Implications for subclass skilled visa 485

Running head: MIGRATION LAW
Migration Law
Name of the Student
Name of the University
Author Note

1MIGRATION LAW
To
The client
The case of Khan v Minster for Immigration & Anor1 is in relation to application of a
subclass skilled visa 485. In this case the tribunal had not allowed the visa as it was of a view
that the applicant had not given evidence in relation to skill assessment when the application was
provided. The applicant did not get skills assessment as in relation to factors which were not
within its control. According to the Migration Regulations the application for this visa has to be
made along with a proper skill assessment. The court was of the view in the case that even if
there was no fault of the applicant in the situation, the courts do not have any support from the
regulations to make a decision in favour of the applicant as it does not have powers to go
contrary to the regulations. The application had been dismissed on the ground. The main
legislative provision in issue was the section 351 of the Migration Act 1985 (Cth)2. The
regulations which are at issue in this case are that of reg.485.2 and 485.223 of the Migration
Regulations 1994 (Cth)3.
The applicant was a Pakistani national and an information technology student who had
been studying in the University of Canberra. In this case the processing of the academic records
had been subjected to problems at many stages of the application although there was no fault on
the part of the applicant in any aspect. However, till rectification had been carried out in relation
to the paper work and proper information was provided in compliance to the regulations, the
1 [2017] FCCA 2585.
2 Migration Act 1985 (Cth) s 351.
3 Migration Regulations 1994 (Cth) reg reg.485.2 and 485.223

2MIGRATION LAW
applicant had already failed to comply with the regulations. This led to the visa application being
unsuccessful in relation to the minister and the administrative tribunal. The applicant made
appeal to the court after the previous attempt to get the visa had failed. The court came to the
conclusion that even where there was no fault on the part of the applicant and the fault rests on
the part of academic institution in Australia the court has no power to do anything in the situation
with respect to the provisions of the migration regulations. The court however suggested that the
minister who has been provided with wide discretionary powers under the provisions of s351 of
the MA may use them to allow the visa application. In the present situation the client who has
similar facts as compared to this case must know the reasons for which the court did not allow
the application and implications of applying for Class VC Skilled Provisional (485 Skilled
Graduate Temporary) subclass 485 visa. The main reason for which the court came to this
decision is that according to the migration regulations clause 485.2 all requirements have to be
meet at the moment when a decision in relation to grant of visa is made unless it is stated
otherwise. Further under s. 485.223 at the time which the application is made it has to be have
evidence that an application has been made by the applicant for assessment of skills in relation to
nominated skulled occupation by a proper assessing authority. Further a relevant assessing
authority means a body or person identified by reg 2.26B. As at the time the application for the
grant of visa to Mr khan was being assessed all criteria required to make a successful application
were not satisfied even if t was not the fault of the applicant, the minister had all rights to reject
the application based in the rules of the MR 1994. Therefore it can be implied through the
application of this case that while making an application for Class VC Skilled Provisional (485
Skilled Graduate Temporary) subclass 485 visa the applicant must be very sure about the fact
that all requirements which have been provided for under the regulations for the successful grant