Lu (Migration)

The Administrative Appeals Tribunal considered the case of Lu, an applicant seeking a Subclass 485 Temporary Graduate visa in the Graduate Work stream. The dispute centred on whether the applicant satisfied the 'Australian study requirement' as stipulated by the relevant regulations, specifically clauses 485.221 and 485.222 of Schedule 2. This requirement mandates that the applicant must have completed eligible Australian qualifications within the six months preceding their visa application, and that these qualifications must be closely related to their nominated skilled occupation.

The primary legal issue before the Tribunal was to determine if the applicant's qualifications met the definition of an 'eligible Australian qualification' for the purpose of satisfying the Australian study requirement. This involved interpreting the definitions of 'degree', 'diploma', and 'completed' as provided in the Migration Regulations 1994, particularly in relation to the applicant's Graduate Diploma in Education (Early Childhood) and their prior Bachelor of International Business degree. The Tribunal also had to consider the duration and academic year requirements for courses to be recognised.

The Tribunal found that the delegate's initial assessment that the applicant's Graduate Diploma in Education (Early Childhood) did not constitute a 'degree' or 'diploma' was incorrect. Applying the definition of 'degree' in regulation 2.26AC(6), which includes postgraduate diplomas where the entry requirement is the satisfactory completion of a bachelor's degree, the Tribunal determined that the applicant's prior completion of a Bachelor of International Business degree qualified her Graduate Diploma in Education (Early Childhood) as a 'degree' for the purposes of the regulations. Consequently, the Tribunal was satisfied that the applicant met the requirements of clause 485.221.

Based on these findings, the Tribunal remitted the application for a Skilled (Provisional) (Class VC) visa for reconsideration. The remittal was made with the direction that the applicant had met the criteria under clause 485.221 of Schedule 2 to the Regulations, leaving the remaining criteria to be assessed by the Minister.