Mazzara (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Skilled (Provisional) (Class VC) visa, specifically under the Subclass 485 (Temporary Graduate) visa, Post-Study Work stream. The applicant's initial application was refused because the qualifications they held were not specified for the Post-Study Work stream. The core dispute revolved around whether the applicant met the criteria for this stream, particularly the Australian study requirement.

The Tribunal was required to determine two primary legal issues. Firstly, whether the applicant held a qualification specified for the Post-Study Work stream, as mandated by clause 485.231(1) of the Regulations. Secondly, and crucially, the Tribunal had to consider whether it could assess the applicant against a different stream, the Graduate Work stream, given that the applicant claimed to have mistakenly applied under the Post-Study Work stream. This involved examining whether the applicant substantially complied with the application form for the intended stream and met its Schedule 1 requirements.

The Tribunal found that the applicant did not hold a specified qualification for the Post-Study Work stream, agreeing with the delegate's initial assessment. However, drawing on previous Federal Circuit Court decisions where matters were remitted due to jurisdictional error in confining consideration to the nominated stream, the Tribunal concluded it was open to consider the applicant against the Graduate Work stream. The Tribunal accepted the applicant's submission that applying under the wrong stream was an honest mistake. Upon reviewing the criteria for the Graduate Work stream, the Tribunal found that the applicant satisfied the Australian study requirement as stipulated in clause 485.221.

Consequently, the Tribunal remitted the applications for Skilled (Provisional) (Class VC) visas for reconsideration. The Tribunal directed that the applicant meets the criteria under clause 485.221 of Schedule 2 to the Regulations, allowing for further assessment of the remaining criteria for the visa by the Minister.