AKBAR v Minister for Immigration

This matter concerned a judicial review application filed by the applicant seeking to quash a decision of the Administrative Appeals Tribunal (AAT). The applicant had applied for a Temporary Graduate visa (subclass 485) after completing a Master of Information Technology and Systems. The Department of Immigration and Border Protection initially refused the visa because the applicant could not provide a skills assessment for the nominated occupation of Computer Network and System Engineer. The applicant appealed to the AAT, subsequently amending their nominated occupation to Software and Application Programmer, based on a recommendation from the Australian Computer Society (ACS). The applicant contended that the AAT erred in law by finding that they were not permitted to change their nominated occupation and that the AAT failed to consider relevant statutory provisions and information provided.

The central legal issues before the court were whether the applicant was permitted to change their nominated skilled occupation during the processing of their visa application, and whether the AAT erred in law by failing to consider the applicant's notification of a change in nominated occupation and relevant statutory provisions. Specifically, the applicant argued that sections 54, 55, and 104 of the Migration Act 1958 (Cth) allowed for the notification and consideration of changes in circumstances or additional relevant information, including a change in nominated occupation, before a decision was made. The applicant also contended that the AAT’s decision was affected by jurisdictional error due to the failure to take relevant considerations into account and the consideration of irrelevant ones.

The court considered previous Federal Circuit Court and Federal Court decisions, including *KC*, *Patel*, and *Hamelata*, which generally held that applicants could not change their nominated occupation once an application was lodged, particularly if it was considered a "change of mind." However, the applicant distinguished their case by arguing that the change in occupation was not a mere change of mind but a correction based on a recommendation from the relevant assessing authority, the ACS. The applicant submitted that neither the Act nor the Regulations expressly prohibited changing a nominated occupation and that previous case law, particularly the obiter dicta in *Patel*, left open the possibility of correcting an erroneously nominated occupation under sections 104 and 105 of the Act. The applicant further argued that the application form did not contain a specific warning against changing the nominated occupation, unlike other sections.

The court found that the applicant's nominated occupation was changed based on a recommendation from the relevant assessing authority, which was distinguishable from a mere change of mind. The court noted that the applicant had provided evidence of a suitable skills assessment from the ACS for the alternative occupation. The court concluded that the AAT’s decision was affected by jurisdictional error in failing to consider the applicant's notification of change in circumstances and the relevant provisions of the Act. Consequently, the court quashed the AAT's decision and remitted the matter to the AAT to be decided according to law.