TRAN (Migration)

The Administrative Appeals Tribunal considered the case of Tran, an applicant seeking a Subclass 485 Skilled (Provisional) visa in the Graduate Work stream. The applicant's eligibility for this visa hinged on satisfying the Australian study requirement and ensuring that any qualifications used to meet this requirement were closely related to their nominated skilled occupation. The primary dispute before the Tribunal was whether the applicant had indeed met these specific criteria.

The legal issues before the Tribunal were twofold: first, whether the applicant had satisfied the 'Australian study requirement' within the six months immediately preceding their visa application, as stipulated by clause 485.221 of Schedule 2 to the Regulations; and second, whether each degree, diploma, or trade qualification relied upon to meet this requirement was closely related to the applicant's nominated skilled occupation, as required by clause 485.222. The definition of 'Australian study requirement' under regulation 1.15F(1) involves completing registered courses in Australia, totalling at least 16 calendar months and two academic years of study, conducted entirely in English, while holding a study-authorised visa.

The Tribunal's reasoning focused on the applicant's completed studies: a Bachelor of Nursing and a Graduate Diploma in Public Health. While the delegate had initially refused the visa, finding the Graduate Diploma did not meet the Australian study requirement, the applicant argued this assessment might have been based on incorrect visa stream criteria. The Tribunal noted the Graduate Diploma was registered for 52 weeks, and the applicant's academic transcript indicated a failed subject in Autumn Session 2015, which was retaken in Autumn Session 2016. Despite the course duration and the failed subject, the Tribunal found that the applicant had met the requirements of clauses 485.221 and 485.222.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant had satisfied the Australian study requirement (clause 485.221) and that their qualifications were closely related to their nominated occupation (clause 485.222). The Minister was to proceed to consider the remaining criteria for the Subclass 485 visa.