Chan (Migration)

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485, in the Graduate Work stream, made by Mr Chan. The Administrative Appeals Tribunal (AAT) was required to review the decision to refuse this visa application.

The primary legal issue before the Tribunal was whether the applicant had applied for the visa under the correct stream, and if not, whether the Tribunal had the power to grant the visa under a different stream than that selected in the original application. Specifically, the Tribunal had to determine if the applicant had indeed applied for the Graduate Work stream, as assessed by the delegate, or if he had intended to apply for the Post-Study Work stream, as he later claimed. A further issue was whether the applicant had satisfied the criteria for the chosen stream, including providing a requisite skills assessment.

The Tribunal found that the applicant had explicitly selected the Graduate Work stream in his visa application form and had nominated a skilled occupation as a Life Scientist. Crucially, he had answered "NO" to the question regarding whether he had applied for a skills assessment for that occupation. The applicant's subsequent claim that he intended to apply for the Post-Study Work stream, and that he had made an error in the application form, was not determinative. The Tribunal noted that the Department's acknowledgment letters also clearly indicated the application was for the Graduate Work stream, and the applicant had not raised this issue with the Department prior to the refusal decision. The Tribunal concluded that there was no power to grant the visa under a different stream than that applied for, and as the applicant did not meet the criteria for the Graduate Work stream, the decision under review had to be affirmed.

The Tribunal affirmed the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.