Awari (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Skilled (Provisional) (Class VC) visa, Subclass 485, Graduate Work Stream. The applicant's eligibility for this visa hinged on meeting specific criteria related to skills assessment for their nominated occupation, Electrical Engineer. The core of the dispute was whether the applicant had satisfied the requirements of clauses 485.223 and 485.224 of Schedule 2 to the Regulations, which mandate evidence of an application for a skills assessment by a relevant assessing authority at the time of visa lodgement, and a successful assessment within the preceding three years.

The Tribunal was required to determine if the applicant had met the primary criteria for the Graduate Work Stream of the Subclass 485 visa, specifically concerning the lodgement of a skills assessment application with the relevant authority, Engineers Australia, for the nominated occupation of Electrical Engineer. The applicant had indicated "no" to having applied for a skills assessment in their visa application and later stated they had mistakenly applied for the Graduate Work Stream instead of the Post-Study Work Stream, believing a skills assessment was not necessary for the latter.

The Tribunal found that the applicant did not satisfy the requirements of clause 485.223 because the visa application, as lodged, was not accompanied by evidence of an application for a skills assessment by the relevant assessing authority. Despite the applicant's explanation that they applied without professional assistance and mistakenly selected the wrong visa stream, and their subsequent attempts to rectify the situation with the Department, the factual requirement of clause 485.223 remained unmet at the time of application. However, the Tribunal also found that the applicant met the requirements of clause 485.231(1).

Consequently, the Tribunal remitted the application for a Skilled (Provisional) (Class VC) visa, Subclass 485, for reconsideration by the Minister, with the direction that the applicant meets the criteria specified in clause 485.231(1) of Schedule 2 to the Regulations.