Ng (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Mr. Ng, who sought review of a decision to refuse his application for a subclass 485 (Temporary Graduate) visa. Mr. Ng had applied for the visa under the Graduate Work stream but was refused because he had not obtained a skills assessment prior to lodging his application, as required by that stream. Mr. Ng contended that he had mistakenly selected the Graduate Work stream and had intended to apply for the Post Study Work stream, under which he believed he met the criteria.

The primary legal issues before the Tribunal were whether Mr. Ng's application could be assessed against the Post Study Work stream, notwithstanding his initial selection of the Graduate Work stream, and if so, whether he met the criteria for the Post Study Work stream. The Tribunal noted that Schedule 1 of the Migration Regulations 1994 requires applicants to nominate only one stream for their application, suggesting that substitution is not permitted. However, the Tribunal also considered previous AAT decisions that allowed for assessment under an alternate stream if the applicant had substantially complied with the requirements for that stream and had genuinely intended to apply for it.

The Tribunal reasoned that while the regulations require a specific stream to be nominated, case law indicated that it was open to consider an applicant's intention if there was evidence of a mistake in selecting the stream. Mr. Ng argued that he mistakenly selected the Graduate Work stream due to a misunderstanding of the terminology and a lack of professional advice, and that his actions, such as not obtaining a skills assessment, indicated an intention to apply for the Post Study Work stream. The Tribunal found that Mr. Ng met the requirements of clause 485.231 of Schedule 2 to the Regulations, which pertains to the Australian study requirement for the Post Study Work stream.

Consequently, the Tribunal remitted Mr. Ng's visa application for reconsideration by the Minister, with a direction that he met the criteria specified in clause 485.231 of Schedule 2 to the Regulations. The Minister would then consider the remaining criteria for the visa.