I don’t qualify for a graduate visa – what do I do now?

To qualify for a Temporary Graduate subclass 485 visa, you will need to satisfy eligibility requirements under one of two streams, namely, either the Graduate Workstream, or the Post-Study Workstream. You must also meet a set of common criteria which apply to allgraduate visa applicants.

The visa grant requirements applicable to each stream are substantially different, and thus require a careful assessment of your eligibility under each stream before applying for a graduate visa. The stream which you select in your visa application will also determine the documents which you will be required to submit to the Department with your application.

To be eligible for visa grant under the Graduate Workstream, a key requirement that you must satisfy is that your qualification/s are closely related to your nominated occupation. As this term is not defined in the migration provisions, it takes its ordinarymeaning. Some recent Australian Federal Court cases (of the Full Court) have established legal principles regarding how this provision in the legislation is to be interpreted and applied in practice. Having a good understanding of these court judgements and their implications is vital, especially if the link between your nominated occupation and your qualification is not as obvious and clear-cut. For example, applying for the nominated occupation of Registered Nurses NEC (ANZSCO code 254499) with a Bachelor of Nursing and a Diploma of Management. Whilst the Nursing degree is evidently closely related to the occupation, the connection with the Management qualification is less obvious. This is where case law is so important, as it allows you to formulate and present to the Department an argument based on legally established principles, to support the view that you meet this requirement for visa grant. Case law is binding on the Department, meaning it must apply the legal principles established in relevant judicial decisions to visa application decisions, as applicable.

Another useful source that can be referred to in determining how the ‘closely related’ provision is to be interpreted and applied is Immigration policy. Although not binding on the Department (like case law is), it nevertheless provides guidance on how the Department is likely to interpret this provision when deciding visa applications.

Therefore, drawing on a combination of sources may be required to formulate a persuasive argument for visa grant when lodging a graduate visa application, especially in more complex cases. The key point is the importance of being fully informed in all aspects of your application. This is where an expert can help; migration agents and immigration lawyers have the knowledge, skills and experience to advise and prepare your visa application on your behalf. They have the legal research skills, and the ability to access these supplementary sources of information (which is especially relevant to Immigration policy, which is not publicly available). Pax Migration will ensure that you lodge a strongly supported application, with references to relevant source materials (such as case law and policy), to give you the best chance of a positive result.

What can you do if, after assessing your eligibility for the graduate visa, you determine that you do not meet the valid visa application and/or grant requirements and therefore do not qualify for a graduate visa? What are your options at this point in formulating your visa pathway? The answer is that you may be able to qualify for a graduate visa by taking certain actions so that you do become eligible in the future. This may involve applying for another visa class as a first step and using this as a stepping stone to work your way up to a graduate visa. The key aspect to note is the importance of being fully informed with accurate data about all requirements that apply, so that you can plan a pathway that will ultimately achieve your goals.

In this article, we outline in more detail the ‘closely related’ criterion as it applies to the Graduate Work stream of the graduate visa, with a discussion of the relevant case law and Immigration policy to interpret this provision. We also talk about the steps you could take with a view to satisfying eligibility criteria for the graduate visa, should you not qualify at the present time.

What does ‘closely related’mean?

As noted in the introduction, legal principles established in judicial decisions law are binding on the Department and therefore act as authority in deciding visa applications. We will thus first consider the important court judgements which have addressed the ‘closely related’ criterion, before turning our attention to Immigration policy.

As part of the analysis of ‘closely related,’ it is necessary to first introduce the concept of the Australian and New Zealand Standard Classification of Occupations (ANZSCO), and its application in this regard. The ANZSCO is a system used to classify all occupations and jobs in the Australian and New Zealand labour markets. The ANZSCO is a very important element of Australia’s migration laws and is often referred to in the legal provisions. As an example, the list of nominated skilled occupations for migration law purposes are taken from ANZSCO, which also outlines a set of tasks and duties which may be required to be performed for each listed occupation. Under ANZSCO, occupations are classified according to Unit groups. For Registered Nurses, for example, the relevant unit grouping is 2544. Minor groups are also specified, an example being Midwifery and Nursing Professionals, with a minor grouping reference of 254.

The legal principles established in Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157 (21 November 2014) and Talha v Minister for Immigration and Border Protection [2015] FCAFC 115 (25 August 2015), which are the leading case law authorities on ‘closely related,’ are as follows:

  • The qualification does not need to exactly correspond with the nominated occupation but rather, ‘thewhole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists.’ That is, all potentially relevant tasks applicable to the nominated occupation should be examined. This means considering the tasks contained in the relevant ANZSCO Unit group, in addition to the Minor group.
  • The study or training for which the qualification was granted conferred on the applicant skills, all, or a substantial proportion of which, fall within the set of skills associated with performing the nominated skilled occupation. This means that a substantial part of the skills acquired from the qualification must form at least part of the skill set of the nominated occupation.

Continuing with our previous example, applying the above legal principles, you would need to examine both the Unit group and Minor group against the subjects completed for award of the relevant qualification, to determine whether they are closely related for this purpose.

In our example, we would need to compare the relevant tasks as set out in ANZSCO Unit group 2544 Registered Nurses, and Minor group 254 Midwifery and nursing professionals will all subjects completed, to demonstrate whether these subjects are, in some way, directly relevant to the performance of the nominated occupation. As management of staff is a part of the skill set for the skilled occupation of Registered Nurse NEC, the attainment of a qualification that confers the skills to effectively manage staff may be sufficiently closely related to the occupation as a whole.

We now turn our attention to Immigration policy, which states that the critical factor in determining whether a qualification is closely related to the nominated skilled occupation is whether the skills underpinning the qualification/s are directly transferable to the nominated occupation, in terms of both subject matter and the level of qualification at which those skills were obtained.

Demonstrating with our example, we would be required to analyse the relationship between the subjects studied and the tasks listed in the Unit Group and Minor Group in ANZSCO, to determine whether the skill set underpinning the Diploma of Management qualification (management skills) are directly transferable to the occupation of Registered Nurse NEC, in terms of both subject matter and the level of qualification at which those skills were obtained.

As you can see from the above discussion, this is a complex area of migration law and should thus be handled with care when formulating and presenting your arguments to the Department. The poinrs raised above should not be relied upon in preparing your own visa application but rather, can be used as a guide to help you to better understand the issues which are involved, and which need to be addressed in your application in demonstrating to Immigration that you meet the closely related criterion for visa grant. Given the complexity in correctly interpreting and applying the relevant case law authority and policy to your personal situation (noting that each case is different), a skilled and experienced migration professional would be best placed to help guide you through this process, and thus increase your chances of a successful outcome. Don’t leave it to chance – one mistake in your application can result in an automatic refusal of your application, and the more serious consequences which this may result (in terms of your ability to re-lodge a graduate visa or other application whilst you remain onshore).

What should you do if you don’t qualify for a graduate visa?

If you have assessed your eligibility for the graduate visa and have determined that you do not qualify, you might still be able to apply at some stage in the future, once you have taken the necessary steps to meet the relevant requirements for lodging a valid application and for visa grant. The question you need to consider is whyyou do not qualify, and then formulate a plan to meet the relevant requirements so that you can qualify and later apply for the graduate visa. Also keep in mind that migration laws frequently change, and thus taking steps now to qualify for a visa based on the current provisions will not guarantee that the requirements will remain the same once you are ready to apply. Keeping yourself up-to-date is therefore important, so that you can adjust and/or re-assess your position if and when required.

One key criterion for graduate visa grant is to satisfy the Australian Study Requirement. To meet this, you must reside in Australia for a specified minimum period as a student visa holder, and complete at least 92 weeks of study in a registered course to qualify.

Another important requirement (for valid application purposes) is to hold an eligible student visa within 6 months of visa lodgement.

As you can see, a central feature of both of these requirements is completion of a course of study in Australia as a student visa holder. You will therefore need to apply first for a student visa and fulfil the necessary requirements, as prescribed for the graduate visa, in order to potentially later qualify for the graduate visa. This will require an assessment of all relevant graduate visa requirements and formulation of a plan, to ensure that your student visa will allow you to later apply for the graduate visa. Several important elements must be considered in your plan, which will depend on the graduate visa stream which you will be applying under.

It is important to note at this point that you can qualify for a graduate visa under the Post-Study Workstream only if you applied for, and were granted, your first Student Visa to Australia on or after 5 November 2011. If you do not fulfil this requirement, then you will only be able to apply for a graduate visa if you meet the requirements under the Graduate Work stream. This is a limitation you will need to consider as you plan your visa pathway.

The Post-Study Work stream is also more limited in terms of the minimum qualification level which you must have completed in order to be eligible under this stream. A higher education degree, with the minimum level of a bachelor degree, is required. The Graduate work stream is more flexible in this respect, with a degree, diploma or trade qualification being sufficient. On the other hand, you will need to nominate a skilled occupation and receive a positive skills assessment to qualify under the Graduate Work stream, which must therefore also be assessed and factored into your decision-making.

It may be that you fail to qualify for the graduate visa based on not meeting the English language requirement. Again, you can take the necessary steps to prepare and work towards achieving the minimum English test results required. Whether you will have enough time to complete this requirement in light of the strict deadlines that apply will depend on your individual circumstances. Remember, you have a strict time limit in which to apply, being 6 months of holding an eligible student visa, and the course completion date.

Another potential pathway you may consider, should you fail to qualify for a graduate visa, is to assess your eligibility for a skilled visa and determine what steps you need to take to apply. Although a graduate visa is often a good option for recent student graduates who ultimately intend to apply for a skilled visa at some stage in the future, you might still be able to achieve your future residency goals in Australia by planning a pathway which, although it may take longer, would still ultimately achieve your long-term goals. You might, for example, gain skilled employment experience or a further qualification offshore, to help you build your points score for a points-based skilled visa. Or gain the minimum skilled employment experience overseas, which is required to qualify for an employer sponsored or nominated visa. Or, you can prepare for and complete requirements for English languageor a skills assessment whilst offshore. There can often be other options and pathways to take to reach your ultimate goals – the key is to formulate a plan based on up-to-date and accurate information.

Being fully informed will help you to make the best decision as it applies to your personal situation, and to formulate a visa pathway that is most beneficial to you. Ensure that you arm yourself with the information you need before applying a visa, regardless of the visa class, to ensure that you get it right and are able to fulfil your short and long-term future plans.

 

In conclusion, we note that the above discussion provides an overview of the ‘closely related’ criterion as it applies to the Graduate Work stream of the graduate visa, with a discussion of the relevant case law and Immigration policy used to interpret this provision. We have also outlined the steps you could take with a view to satisfying eligibility criteria for the graduate visa, should you not qualify at the present time, or other potential visa options.

Australia’s migrations laws are complex, and each case is different. We recommend that you seek professional advice before you proceed with applying for a graduate visa, as being fully informed about the process and requirements that apply will prevent you getting caught out when lodging your application and likely also to give you the best chance of achieving a successful outcome.

Several terms mentioned in the above article are defined in the migration provisions. It is vital to have a good understanding of these terms and how they apply in practice. Detailed advice about these is beyond the scope of this article and we would therefore recommend that you seek further information in this regard.

For up to date advice on the graduate visa process and requirements, and how to avoid a refusal, book your confidential consultation with a migration agent in Adelaide. PAX Migration Australia is a leading immigration advice service based in Adelaide, and we aren’t expensive! Just ask us!