PRAJAPATI (Migration)

The Administrative Appeals Tribunal considered the application of Ms Prajapati for a Subclass 485 Temporary Graduate visa, Graduate Work stream. The delegate refused the visa application on the basis that the applicant had not applied for a skills assessment prior to lodging her visa application, a requirement for the Graduate Work stream. The applicant contended that she had mistakenly nominated the Graduate Work stream when she intended to apply for the Post-Study Work stream, which does not require a skills assessment to have been obtained before the visa application date.

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 Tribunal noted that while Schedule 1 of the Migration Regulations 1994 requires an applicant to nominate only one stream, it does not expressly prohibit an applicant from being considered for either stream or from changing streams after the initial application. The applicant's representative submitted that the applicant had an honest belief that the Graduate Work stream was appropriate due to her graduation, but lacked the necessary legal knowledge to understand the implications of the stream choice and the absence of a skills assessment requirement in the Post-Study Work stream.

The Tribunal found that the wording and process surrounding the visa application were confusing. It accepted the applicant's submission that she mistakenly applied for the Graduate Work stream when she met all the requirements for the Post-Study Work stream. The Tribunal concluded 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 meets criterion cl.485.231.