Shastri (Migration)

The Administrative Appeals Tribunal considered an application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate), made by an applicant who nominated the occupation of Accountant (General). The applicant had initially applied under the Graduate Work Stream but claimed an intention to apply under the Post-Study Work Stream, for which a skills assessment is not a mandatory criterion. The dispute centred on whether the applicant had met the requirements for the visa, specifically concerning the lodgement of a skills assessment.

The Tribunal was required to determine whether the applicant had satisfied the criteria for the Graduate Work stream, particularly clause 485.223 of Schedule 2 to the Migration Regulations, which mandates evidence of an application for a skills assessment by a relevant authority at the time of the visa application. It also needed to consider the applicant's assertion that she mistakenly selected the Graduate Work Stream when she intended to apply for the Post-Study Work Stream, and the steps she took to rectify this error.

The Tribunal found that the applicant had not applied for a skills assessment prior to lodging her visa application, acknowledging this in her evidence. However, she explained this was because she intended to apply for the Post-Study Work Stream. The Tribunal accepted the applicant's evidence that she realised her error almost immediately and made numerous attempts to rectify it, including contacting the Department and submitting a Form 1023. Despite receiving conflicting advice and being told she could not change streams, she was advised to withdraw her initial application and submit a new one. The Tribunal noted the applicant's efforts to withdraw and resubmit, including postal tracking information for the second application. Based on these findings, the Tribunal concluded that the applicant met the requirements of clause 485.231(1) of Schedule 2 to the Regulations.

The Tribunal remitted the application for reconsideration, with a direction that the applicant meets the criteria specified in clause 485.231(1) of Schedule 2 to the Regulations.