Nguyen (Migration)

This matter concerned an appeal by an applicant for a Skilled (Provisional) (Class VC) visa, Subclass 485, Graduate Work stream, before the Administrative Appeals Tribunal. The applicant had applied for the visa under the Graduate Work stream but had not submitted a skills assessment application prior to the visa application date, which was a requirement for that stream. The delegate had refused the application on this basis.

The Tribunal was required to determine whether the applicant's visa application could be assessed against the criteria for the Post-Study Work stream, and if so, whether those criteria were met. The applicant contended that she had mistakenly applied for the Graduate Work stream, believing it to be the only applicable stream for her Bachelor's degree in Chemical Engineering, when in fact the Post-Study Work stream would have been more appropriate as it did not require a pre-application skills assessment.

The Tribunal reasoned that the regulations did not expressly prohibit an applicant from being considered against the criteria of either stream or from changing streams after the initial application. It noted that a valid application required nominating only one stream, but that meeting the criteria for either item 1229(3)(k) (for the Graduate Work stream) or 1229(3)(l) (for the Post-Study Work stream) would constitute a valid application. The applicant's submission clearly indicated her misunderstanding of the streams and her desire to be assessed under the Post-Study Work stream. The Tribunal found that the applicant met criterion cl.485.231 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with the direction that the applicant met criterion cl.485.231.