Tinoco Vilaca (Migration)

The Administrative Appeals Tribunal considered the application of Tinoco Vilaca for a Skilled (Provisional) (Class VC) visa, Subclass 485, Graduate Work stream. The applicant sought to satisfy the primary criteria for this visa, specifically clauses 485.221 and 485.222 of Schedule 2 to the Migration Regulations 1994. The central dispute revolved around whether the applicant met the 'Australian study requirement' within the prescribed timeframe and whether the qualification obtained was closely related to their nominated skilled occupation.

The Tribunal was required to determine if the applicant satisfied the 'Australian study requirement' as defined by regulation 1.15F(1). This involves assessing whether the applicant completed one or more registered courses at an Australian educational institution, totalling at least 16 calendar months and comprising at least two academic years of study, with all instruction conducted in English, and undertaken in Australia on a visa authorising study. The Tribunal also needed to consider the timeframe for meeting this requirement, which was either the six months immediately before the visa application or, in specific circumstances related to COVID-19 travel restrictions, the twelve months immediately before the application.

The Tribunal's reasoning focused on the applicant's completion of a Diploma of Hospitality Management. While the applicant declared a course duration from 29 April 2019 to 23 April 2021, a letter of completion indicated a commencement date of 2 November 2020 and conclusion on 7 May 2021. Crucially, the Tribunal noted that the Diploma of Hospitality Management was registered for 56 weeks, which was less than the minimum 92 weeks (two academic years) required by regulation 1.15F(c). Despite this discrepancy in the duration of the qualification, the Tribunal found that the applicant met the requirements of clause 485.231(3) and therefore satisfied clause 485.221.

Consequently, the Tribunal remitted the application for the Skilled (Provisional) (Class VC) visa for reconsideration by the Minister, with the direction that the applicant meets the criteria set out in clause 485.221 of Schedule 2 to the Regulations.