SCORTEGAGNA (Migration)

The Administrative Appeals Tribunal considered an application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) visa, Post-Study Work stream. The applicant sought to meet the criteria for this stream, which required holding a specified qualification and satisfying the Australian study requirement in the six months prior to the visa application. The primary issue was whether the applicant met these requirements.

The Tribunal was required to determine if the applicant held a qualification specified for the Post-Study Work stream and, if not, whether it could consider the applicant under a different stream, specifically the Graduate Work stream, given the applicant's assertion of an honest mistake in selecting the wrong stream. The Tribunal also needed to assess if the applicant met the Australian study requirement and the criteria for the Graduate Work stream, including the relationship between their qualification and nominated skilled occupation.

The Tribunal found that the applicant's Certificate III in Carpentry was not a qualification specified for the Post-Study Work stream, agreeing with the delegate's initial refusal. However, drawing on previous Federal Circuit Court decisions, the Tribunal concluded that it was open to consider the applicant under the Graduate Work stream if satisfied that the applicant intended to apply for that stream, substantially complied with the application form, and met Schedule 1 requirements. Accepting the applicant's submission of an honest mistake, the Tribunal found the applicant met the Australian study requirement under clause 485.221 for the Graduate Work stream.

Consequently, the Tribunal remitted the visa application for reconsideration by the Minister, with a direction that the applicant meets the criteria under clause 485.221 of Schedule 2 to the Regulations.