Martinez Guerrero (Migration)

The Administrative Appeals Tribunal considered the case of Martinez Guerrero, concerning an application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) in the Graduate Work stream. The applicant sought to satisfy the primary criteria for this visa, specifically the requirement to have met the 'Australian study requirement' within the six months preceding their visa application.

The central legal issue before the Tribunal was whether the applicant's Associate Degree in Civil Engineering constituted a 'trade qualification' for the purposes of satisfying the Australian study requirement under the Migration Regulations. This determination hinged on the definition of a trade qualification, which, under regulation 2.26AC(6), requires a qualification at least at the Certificate III level for a skilled occupation in Major Group 3 of the Australian and New Zealand Standard Classification of Occupations (ANZSCO). The occupation of Civil Engineering Draftsperson (ANZSCO 312211) had been specified by the Minister as a skilled occupation.

The Tribunal reasoned that the applicant's Associate Degree in Civil Engineering, being of an appropriate level for a skilled occupation in Major Group 3 of ANZSCO, met the definition of a trade qualification. The applicant had completed the academic requirements for this qualification on 4 July 2018, which was within the relevant six-month period. Furthermore, the Tribunal was satisfied that the study met all other criteria for the Australian study requirement, including being a registered course, completed over at least 16 calendar months and two academic years, with instruction in English, and undertaken while holding a visa authorising study in Australia.

Consequently, the Tribunal remitted the applications for reconsideration, directing that the first applicant met the Australian study requirement for the Subclass 485 visa. The second applicant's claims were also to be reassessed by the Department in light of this decision.