Islam (Migration)

The Administrative Appeals Tribunal considered an application for a Skilled (Provisional) (Class VC) visa, Subclass 485, in the Graduate Work stream. The applicant sought review of a decision concerning their eligibility for this visa.

The primary legal issues before the Tribunal were whether the applicant's visa application could be assessed against the criteria for the Post Study Work stream, and if so, whether the applicant met those criteria. This arose because the applicant had nominated the Graduate Work stream, which requires a skills assessment, but the Tribunal considered whether the applicant might have been eligible for the Post Study Work stream, which does not have this requirement.

The Tribunal reasoned that the Migration Regulations did not expressly prohibit an application from being assessed against a different stream if there was substantial compliance with the application form. Drawing on the authority of *Prajapati* [2021] AATA 2543, the Tribunal concluded that it was open to consider the applicant for the Post-Study Work stream if satisfied that the application was, in substance, for that stream. The applicant provided evidence that they had made an honest mistake in selecting the Graduate Work stream due to a lack of understanding and financial constraints during the COVID-19 pandemic. The Tribunal found that the applicant met criterion cl.485.231 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application to the Minister for reconsideration, with the direction that the applicant meets criterion cl.485.231 for a Subclass 485 visa.