Fernando (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Fernando, who sought review of a decision not to grant him a Skilled (Provisional) (Class VC) visa, specifically under the Subclass 485 (Temporary Graduate) visa, Post-Study Work stream. Mr. Fernando argued that he had mistakenly applied for the Post-Study Work stream when he intended to apply for the Graduate Work stream, and that he had taken steps to notify the Department of his error shortly after lodging his application.

The primary legal issue before the Tribunal was whether Mr. Fernando's application could be treated as a valid application for the Graduate Work stream, despite being lodged under the Post-Study Work stream. This involved determining the scope of the Minister's power to grant a visa and the requirements for a valid visa application under the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). The Tribunal also considered whether the applicant had substantially complied with the requirements for the Graduate Work stream.

The Tribunal reasoned that under section 47 of the *Migration Act*, the Minister must consider a valid application but has no power to grant a visa that was not applied for. Section 46 of the Act requires that a visa application must satisfy prescribed criteria to be valid. Item 1229(3)(k) of Schedule 1 of the Regulations mandates that an applicant for the Graduate Work stream must nominate a skilled occupation. As Mr. Fernando did not nominate a skilled occupation on his application form, the Tribunal found that his application was not substantially compliant with the requirements for a valid application in the Graduate Work stream at the time it was made. While acknowledging his subsequent attempts to correct the error, the Tribunal concluded that the application could not be considered valid for the Graduate Work stream.

Consequently, the Tribunal affirmed the decision not to grant Mr. Fernando a Skilled (Provisional) (Class VC) visa. The Tribunal also noted that secondary applicants, who applied as family members, did not independently meet the primary criteria and were not members of the family unit of a subclass 485 visa holder, leading to the affirmation of decisions in their matters as well.