Bhumrha (Migration)

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485, specifically the Post-Study Work and Graduate Work streams. The applicant sought review of a decision not to grant the visa. The core of the dispute revolved around whether the applicant met the criteria for the visa, particularly concerning the specified qualification requirement and the stream under which the application was lodged.

The legal issues before the Tribunal were whether clause 485.231 of Schedule 2 of the Migration Regulations 1994 applied to the applicant, and if so, whether the applicant satisfied its requirements. This included determining if the applicant held a qualification of a kind specified by the Minister, which must be at Australian Qualifications Framework (AQF) level seven or higher. The Tribunal also had to consider the applicant's assertion that the application was lodged in the incorrect stream due to an error by a former migration agent, and whether this intention could lead to the application being assessed under the Graduate Work Stream.

The Tribunal reasoned that clause 485.231 did apply because the applicant did not meet the requirements of alternative clauses (485.232, 485.233, 485.234, or 485.235). It found that the applicant's qualifications, a Diploma of Building and Construction (Building) and a Certificate III in Carpentry, were not at AQF level seven or higher, and therefore did not satisfy the specified qualification requirement under clause 485.231(1). While acknowledging evidence suggesting the applicant intended to apply under the Graduate Work Stream and that the application was lodged in error, the Tribunal noted that a valid visa application requires the nomination of only one stream. Despite the error, the application was lodged in the Post-Study Work Stream, and the applicant did not meet the criteria for that stream.

Ultimately, the Tribunal affirmed the decision not to grant the visa. However, considering the circumstances, the Tribunal deemed it appropriate to refer the case to the Minister for consideration of discretionary intervention powers under section 351 of the Migration Act 1958.