Njuguna (Migration)

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485, specifically within the Graduate Work stream. The applicant sought to satisfy the primary criteria for this visa, which included clauses 485.223 and 485.224 of Schedule 2 to the Migration Regulations 1994. The dispute arose because the applicant had nominated the occupation of Social Worker and, as required by clause 485.223, should have provided evidence of having applied for a skills assessment by the Australian Association of Social Workers at the time of lodging her application. However, the applicant had not done so, admitting she was unaware of this requirement and believed she should have applied for the Post-Study Work stream instead.

The Tribunal was required to determine whether the applicant satisfied the primary criteria for the Subclass 485 visa. Specifically, it needed to assess if the applicant met the requirements of clause 485.223, which mandates evidence of a skills assessment application for the nominated occupation. The Tribunal also considered the applicant's claim that she met the criteria for the Post-Study Work stream, a newer stream introduced in 2013 that does not require a skills assessment but instead focuses on having obtained a specified qualification from a specified institution.

The Tribunal found the applicant to be a credible witness and accepted her explanation for not meeting the Graduate Work stream criteria. It concluded that the applicant did not satisfy clause 485.223 as she had not provided evidence of applying for a skills assessment at the time of her visa application. However, the Tribunal then considered the applicant's eligibility for the Post-Study Work stream. Applying the criteria for this stream, including clause 485.231, the Tribunal found that the applicant met the requirement for a specified qualification.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration. The direction was that the applicant met the criteria set out in clause 485.231 of Schedule 2 to the Migration Regulations 1994, allowing for further assessment of the remaining criteria for the Subclass 485 visa under the Post-Study Work stream.