Diksha (Migration)

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate), specifically the Post-Study Work and Graduate Work streams. The applicant, Diksha, sought review of a decision affirming the refusal of her visa application. The Tribunal was tasked with determining whether the applicant met the criteria for the visa.

The primary legal issue was whether the applicant satisfied the requirements of clause 485.231 of the Migration Regulations 1994, which pertains to holding a specified qualification at Australian Qualifications Framework level seven or higher and meeting the Australian study requirement. The Tribunal also considered whether the applicant met the criteria for alternative clauses (485.232, 485.233, 485.234, or 485.235) which would render clause 485.231 inapplicable.

The Tribunal found that clause 485.231 did apply to the applicant as she did not meet the requirements of the alternative clauses. Crucially, the applicant conceded that she did not hold a qualification specified by the Minister for the Post-Study Work Stream, such as a Bachelor Degree or higher. Instead, she held a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery, and a Diploma in Hospitality Management, which were below the required AQF level seven. Consequently, the applicant failed to satisfy the criteria for the Graduate Work stream, and by extension, the Post-Study Work stream.

The Tribunal affirmed the decision under review, concluding that the applicant did not meet the requirements for the Subclass 485 visa. Despite acknowledging that the applicant was an unfortunate victim of an error by her migration agent in selecting the incorrect visa stream, which prevented a vital question about a nominated skilled occupation from being asked, the Tribunal found it could not grant the visa. The applicant's request for referral to the Minister for Ministerial Intervention under s 417 of the Migration Act 1958 was noted, but the Tribunal's decision was to affirm the refusal.