Adhikari (Migration)

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, specifically the post-study work stream of the Subclass 485 visa. The applicant sought review of a decision concerning their eligibility. The Tribunal, constituted by George Hallwood, was required to determine whether the applicant met the requirements of clause 485.231 of Schedule 2 to the Migration Regulations 1994, particularly concerning the Australian study requirement.

The central legal issue was the interpretation of clause 485.231(3)(a), which mandates that an applicant must satisfy the "Australian study requirement" within the six months immediately before the visa application was made. The applicant had completed a Bachelor of Nursing more than six months prior to their application, but had subsequently completed a Diploma of Community Services within the six-month period. The Tribunal had to ascertain whether the applicant's earlier degree study, coupled with the later diploma study, could satisfy the requirement, and whether the legislative amendment that the "applicant" must satisfy the requirement, not the applicant's "study for the qualification," impacted this determination.

The Tribunal reasoned that clause 485.231 applied to the applicant as they did not meet the criteria for alternative clauses 485.232 to 485.235. It found that the applicant held a specified qualification, an AQF Bachelor of Nursing, conferred by a specified educational institution. Crucially, the Tribunal determined that the applicant satisfied the Australian study requirement by combining their earlier degree study with their more recent diploma study, as the legislative amendment focused on the applicant's satisfaction of the requirement rather than the timing of a single qualification.

Consequently, the Tribunal found that the applicant met the criterion under clause 485.231. The matter was remitted to the Minister for reconsideration of the remaining criteria for the visa.