Seenundun (Migration)

This matter concerned an appeal by an applicant against the decision not to grant her a Skilled (Provisional) (Class VC) visa, specifically under the Subclass 485 (Temporary Graduate) visa, Post-Study Work stream. The applicant acknowledged that she had selected the incorrect visa stream and that by the time she realised her error, the period for making a valid application had expired. The Tribunal was therefore required to consider whether the applicant met the criteria for the visa, particularly in relation to the Australian study requirement and specified qualifications.

The primary legal issues before the Tribunal were whether clause 485.231 of the Migration Regulations 1994 applied to the applicant, and if so, whether she satisfied its requirements. Clause 485.231 mandates that an applicant must hold a qualification specified by the Minister and have satisfied the Australian study requirement within a defined period. The Tribunal also considered whether the applicant met the criteria for alternative clauses (485.232, 485.233, 485.234, or 485.235), which would have meant clause 485.231 did not apply.

The Tribunal reasoned that the applicant did not meet the requirements of clauses 485.232, 485.233, 485.234, or 485.235, as there was no evidence she had previously held a Subclass 485 visa in the Post-Study Work or Replacement streams. Consequently, clause 485.231 was applicable. However, the applicant's qualifications, a Diploma in Early Childhood Education and Care and an Advanced Diploma of Business, were not among those specified in the relevant ministerial instrument (LIN 23/023), which listed only degrees from bachelor to doctoral level. Furthermore, the applicant had not provided evidence of applying for a skills assessment by a relevant authority at the time of lodging her visa application.

The Tribunal affirmed the decision not to grant the visa. While the Tribunal noted the applicant's case and the relevant ministerial guidelines, it concluded that the applicant did not satisfy the criteria for the visa. The matter was referred to the Department for consideration under discretionary powers.