Kumarage (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking review of a decision not to grant a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) – Post-Study Work stream. The applicant's eligibility for this visa stream hinged on meeting specific criteria, including the Australian study requirement.

The primary legal issue before the Tribunal was whether the applicant satisfied the requirements of clause 485.231 of Schedule 2 to the Migration Regulations 1994. This clause mandates that an applicant must hold a specified qualification awarded by a specified educational institution and have satisfied the Australian study requirement within a defined period preceding the visa application. The Tribunal also had to determine if clause 485.231 applied to the applicant, considering alternative clauses that might exempt them.

The Tribunal reasoned that clause 485.231 was applicable because the applicant did not meet the criteria outlined in alternative clauses 485.232, 485.233, 485.234, or 485.235. The applicant held a Bachelor of Business (Accounting) degree from Western Sydney University, both of which were specified in the relevant ministerial instruments. However, the applicant failed to meet the Australian study requirement, as their course completion date was more than six months prior to their visa application, and they did not qualify for the extended 12-month period due to being outside Australia during the specified COVID-19 period. The Tribunal noted that the applicant could still seek Ministerial intervention if exceptional circumstances existed.

Ultimately, the Tribunal affirmed the decision not to grant the applicant the visa.