Website And PAM Do Not Bind Immigration


From 1 March 2015 this administrative change came into force:

Overseas penal clearance

The department no longer requires all applicants for the Temporary Graduate (Subclass 485) visa to provide overseas police certificates from each country they have lived in for 12 months or more during the past 10 years after turning 16 years of age. Applicants will only need to provide overseas police certificates for Temporary Graduate (Subclass 485) visa applications if they are requested by the department.

The take home message in this Tribunal case is that Immigration’s website is not a source of LAW. Both the website and the PAM can be confusing and even misleading. There is no substitute for relying on the law and relying on a skilled migration advisor .

In Mehboob 1502965 (Migration) [2015] AATA 3270 (11 August 2015), the applicant in sequence did a Master of Pharmacy followed by a Diploma of Business and sought to use those qualifications for the Subclass 485 visa in the Post-Study Work stream. Here is the relevant regulation :



(1)      The applicant holds a qualification or qualifications of a kind specified by the Minister in an instrument in writing for this subclause.


(2)      Each qualification was conferred or awarded by an educational institution specified by the Minister in an instrument in writing for this subclause.


(3)      The applicant’s study for the qualification or qualifications satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made.


Clause  485.231(1) refers to Bachelor or Masters but not a diploma. He had finished the diploma within 6 months of applying but the Masters was completed 116 days prior to the 6 months cut off. The website was misleading but the Tribunal found that the qualification referred to in 485231(3) had to be a qualification referred to in 485.231(1).

The Tribunal noted:

The Tribunal understands the submissions of the applicant’s representative to have contended that some type of administrative estoppel applies; that is, that the refusal of the visa cannot be sustained due to the misleading statements on the Department’s website, on which the applicant relied to his detriment.  This submission was made in general terms but no legal authority was cited to indicate on what basis this could be said to be made out or supported as applying in the present circumstances.  In the Tribunal’s view, even if it accepted that the website content in this regard was ambiguous, the provision of ambiguous advice by the Department does not invalidate the primary decision or establish grounds for any type of estoppel, and the Tribunal is still bound to consider whether or not the applicant meets the criteria in cl.485.231. As stated by Lord Greene MR in Minister of Agriculture & Fisheries v Hulkin (1948) (Unreported, Court of Appeal, England):

Accepting the view which.. the defendant’s counsel accepts, that the Minister had no power under the regulations to grant a tenancy, it is perfectly manifest to my mind that he could not by estoppel give himself such power. The power given to an authority under a statute is limited to the four corners of the power given. It would entirely destroy the whole doctrine of ultra vires if it was possible for the donee of a statutory power to extend his power by creating an estoppel. [Applied by the Full Federal Court in MIEA v Kurtovic (1990) 21 FCR 193]

In some ways a harsh decision but the website cannot alter the law. It also raises the other important practice points that a person doing a combined Bachelor followed by Diploma will not be eligible for the subclass 485 visa in the Post-Study Work stream unless both qualifications are integrated (which they are usually not). Thus someone doing a Bachelor of Science following by a Diploma of Education for the purpose of securing a teaching qualification would not be eligible for the subclass 485 visa in the Post-Study Work stream!

Barbara Davidson