XU (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Xu, who sought to satisfy the primary criteria for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) in the Graduate Work stream. The dispute centred on whether Mr. Xu met the requirements of clauses 485.221 and 485.222 of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine two key legal issues: first, whether Mr. Xu had satisfied the ‘Australian study requirement’ in the six months immediately preceding his visa application; and second, whether each qualification relied upon to satisfy this requirement was ‘closely related’ to his nominated skilled occupation. The nominated occupation was Computer Network and Systems Engineer.

The Tribunal reasoned that the ‘Australian study requirement’ necessitates completion of at least two academic years of study, defined as a minimum of 92 weeks, from registered courses with instruction in English, undertaken in Australia. Mr. Xu provided evidence of a Bachelor of Information Technology degree completed in December 2015 and an Advanced Diploma of Translating completed in November 2016. While the Bachelor of Information Technology met the duration requirement, the Advanced Diploma of Translating, registered for 50 weeks, did not meet the 92-week minimum when considered alone. Crucially, the Tribunal found that the Advanced Diploma of Translating was not closely related to the nominated occupation of Computer Network and Systems Engineer, which involves technical IT roles as outlined in ANZSCO Version 1.2.

Consequently, the Tribunal concluded that Mr. Xu did not satisfy the Australian study requirement as defined by the regulations, nor the closely related qualification criterion. Therefore, the decision under review, which was not to grant the visa, was affirmed.