If There is a Change of Mind, You Cannot Use "Change of Circumstances" Form

In the recent Federal Court of Australia’s case of Akbar v Minister for Immigration and Border Protection[1], it was decided that if you seek to change an occupation nominated in a subclass 485 visa application before the decision, the change can only be made if it is a mistake, as opposed to change of mind.

Material Facts

The Appellant applied for skills assessment for occupation of “Computer Networks”.  He then applied for the Subclass 485 visa and nominated the occupation of “Computer Networks” in the application. Thereafter, he was informed by the skill assessing authority that his degree was not closely related to the nominated occupation of “Computer Network”, but that he could opt to have his skills assessed for the occupations of Business Analyst or Software Engineer. The Appellant then sent the Minister a “notification of change in circumstances” form to request for the change of occupation nominated and provided the Minister with a positive skills assessment for the new occupation nominated.

The Minister did not accept that the Appellant could change his mind and change the occupation after the application was lodged. The AAT affirmed the Minister’s decision on the same ground and the Appellant then unsuccessfully sought judicial review of the AAT’s decision.

On appeal to the Federal Court, the Appellant argued that it was open to subclass 485 visa applicants to change a nominated occupation before their subclass 485 visa applications are decided. However, the Federal Court disagree with the argument.

How did the Federal Court decide?

A single judge of the Federal Court agreed with an earlier decision of the same court in Pavuluri v Minister for Immigration and Border Protection[2] and held that:

59. In this case the appellant’s nomination of Computer Network and Systems Engineer for the purposes of his visa application was not “incorrect”, and at the time of the application reflected his personal circumstances and choice of nominated occupation. Notwithstanding that the appellant was later advised that a change of nominated occupation would increase the likelihood of a successful assessment, and hence enhance the prospect of success of his visa application, there was no material change in circumstances that rendered the nomination of Computer Network and Systems Engineer incorrect.

Key takeaway

Change of circumstances’ form is not allowed to be used in a situation where there is a change of mind.

Getting Assistance

If you need assistance with your Australian visa matters you can contact our Migration Agents and Immigration Lawyers by calling 02-27007200 or email us at info@ahclawyers.com

[1] [2019] FCA 515

[2] [2014] FCA 502