Davey (Migration)

The Administrative Appeals Tribunal considered an application for a Skilled (Provisional) (Class VC) visa, specifically the Subclass 485 Temporary Graduate visa, Post-Study Work stream. The applicants sought review of a decision not to grant them this visa.

The primary legal issue before the Tribunal was whether the applicants had met the criteria for the Post-Study Work stream, particularly the Australian study requirement. A secondary issue arose from submissions made by the applicants' representative, suggesting that the application was mistakenly lodged for the Post-Study Work stream when the intention was to apply for the Graduate Work stream, and whether the Tribunal should consider this error and subsequent evidence in determining the correct visa stream.

The Tribunal considered a statutory declaration from the applicants' migration agent admitting an error in selecting the Post-Study Work stream instead of the Graduate Work stream. The applicants also provided a statement confirming their intention to apply for the Graduate Work stream, supported by a provisional skills assessment for the occupation of bricklayer. The applicants' representative argued, citing *Shi v Migration Agents Registration Authority* [2008] HCA 31, that the Tribunal, stepping into the shoes of the Minister, should consider all evidence before it at the time of its decision to determine the correct and preferable decision. However, the Tribunal found that the applicants did not meet the requirements of clause 485.231 of Schedule 2 to the Regulations, which pertains to the Australian study requirement for the Post-Study Work stream. Furthermore, the Tribunal noted that the second applicant did not meet the criteria for a Subclass 485 visa as a member of a family unit.

Consequently, the Tribunal affirmed the decisions not to grant the applicants the Skilled (Provisional) (Class VC) visas.