Duvergey (Migration)

The Administrative Appeals Tribunal considered the case of Mr Duvergey, who sought review of the Department's decision to refuse his application for a Subclass 485 (Temporary Graduate) visa in the Post-Study Work stream. The dispute centred on whether Mr Duvergey met the Australian study requirements for this visa subclass.

The primary legal issue before the Tribunal was whether Mr Duvergey's completed qualifications satisfied clause 485.231 of Schedule 2 to the Migration Regulations. This clause specifies that applicants must hold a qualification at Bachelor degree level or higher, as defined by a legislative instrument. Mr Duvergey had completed an Advanced Diploma of Screen and Media, which did not meet the AQF Level 7 or higher requirement stipulated in the relevant legislative instrument. The Tribunal also considered whether the application could be treated as having been made for the Graduate-Work stream, but found this was not possible due to the requirement to nominate a single stream and provide evidence of a skills assessment application for that stream.

The Tribunal reasoned that it had no discretion to grant the visa as Mr Duvergey did not meet the specified qualification criteria for the Post-Study Work stream. Consequently, the delegate's decision to refuse the visa had to be affirmed. However, the Tribunal determined that the circumstances of the case were unique or exceptional, warranting a referral to the Minister under section 351 of the Migration Act. This referral was based on evidence of Mr Duvergey's strong contribution to and potential within the Australian film industry, supported by public information and professional references.

The Tribunal affirmed the decision not to grant Mr Duvergey a Skilled (Provisional) (Class VC) visa. Nevertheless, it decided to refer the matter to the Minister for consideration of intervention under section 351 of the Act, forwarding supporting documentation to demonstrate the unique or exceptional circumstances.