KIM (Migration)

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Skilled Graduate) stream, brought before the Tribunal. The applicant sought review of a decision concerning her eligibility for this visa.

The central legal issues before the Tribunal were whether the applicant satisfied the primary criteria for the visa, specifically cl. 485.221 and 485.222 of Schedule 2 to the Regulations. These clauses require that the applicant must have satisfied the 'Australian study' requirement in the six months immediately preceding the visa application, and that any qualifications used to meet this requirement must be closely related to the applicant's nominated skilled occupation.

The Tribunal considered the definition of the 'Australian study' requirement, which mandates completion of registered courses totalling at least 16 calendar months and at least two academic years of study, with all instruction in English, undertaken while holding a visa authorising study in Australia. The Tribunal found that the applicant's Diploma of Food Processing, registered for 52 weeks, did not alone satisfy the minimum requirement of 92 weeks of study for two academic years. Consequently, the Tribunal concluded that the applicant did not satisfy the 'Australian study' requirement as stipulated by cl. 485.221.

Given these findings, the Tribunal remitted the visa application for reconsideration by the Minister, with a direction that the applicant was to be considered as meeting both cl. 485.221 and cl. 485.222 of Schedule 2 to the Regulations.