Guevara (Migration)

The Administrative Appeals Tribunal considered the application of Mr Guevara for a Skilled (Provisional) (Class VC) visa, Subclass 485, Graduate Work stream. The central dispute concerned whether Mr Guevara satisfied the Australian study requirement as stipulated by the relevant regulations, specifically the requirement to have completed his studies in the six months immediately preceding the date of his visa application.

The Tribunal was tasked with determining whether Mr Guevara met the criteria for the Subclass 485 visa, particularly cl.485.221 and cl.485.222 of Schedule 2 to the Regulations. This involved assessing whether he had satisfied the 'Australian study requirement' within the specified timeframe and whether the qualifications obtained were closely related to his nominated skilled occupation. The primary focus of the Tribunal's deliberation was the interpretation of when a qualification is considered 'completed' for the purposes of the Australian study requirement.

The Tribunal reasoned that the definition of 'completed' in relation to a qualification meant having met the academic requirements for its award, as per r.1.15F(2) of the Regulations. Mr Guevara had provided evidence, including an academic transcript and a letter from his teacher, indicating that he had completed all academic requirements for his Certificate IV in Commercial Cookery by 24 June 2016. Although his award certificate was dated 1 August 2016, the Tribunal accepted that administrative delays in grading and issuing the certificate did not negate the earlier completion of academic requirements. Consequently, the Tribunal found that Mr Guevara had met the Australian study requirement as of 24 June 2016, which fell within the six-month period preceding his visa application lodged on 2 July 2016.

The Tribunal remitted the visa application to the Minister for reconsideration, with a direction that Mr Guevara met the criterion under cl.485.221.