Kim (Migration)

The Administrative Appeals Tribunal considered the case of Kim, an applicant seeking a Subclass 485 (Temporary Graduate) visa in the Graduate Work stream. The dispute centred on whether the applicant met the criteria for this visa, specifically concerning their Australian study requirement and the relationship between their completed qualifications and their nominated occupation. The Tribunal was tasked with determining if the applicant's study package satisfied the relevant clauses of Schedule 2 to the Migration Regulations 1994.

The primary legal issues before the Tribunal were whether the applicant had satisfied the 'Australian study requirement' within the six months preceding their visa application, and crucially, whether each qualification used to meet this requirement was closely related to their nominated skilled occupation of Wall and Floor Tiler. This involved an examination of the definitions of 'degree', 'diploma', 'trade qualification', 'registered course', 'completed', and 'academic year' as stipulated in the Regulations and relevant legislative instruments.

The Tribunal found that while the applicant had completed a package of qualifications, including a Diploma of Business and Certificates III and IV in New Small Business and Wall and Floor Tiling respectively, the business qualifications were not considered closely related to the nominated occupation of Wall and Floor Tiler. Although the business qualifications were useful and complementary, they were not directly transferable to the trade occupation. The Tribunal was satisfied that the applicant met the technical requirements of the Australian study requirement, having completed registered courses over a sufficient period with instruction in English while holding a valid study visa. However, the failure to demonstrate a close relationship between all completed qualifications and the nominated occupation meant the applicant did not satisfy the criteria under cl.485.222.

Consequently, the Tribunal affirmed the decision to refuse the Subclass 485 visas. The secondary applicants also failed to meet the secondary criteria for the visa.