Mahesh (Migration)

The Administrative Appeals Tribunal considered the application of an individual seeking a Subclass 485 Temporary Graduate visa in the Graduate Work stream. The applicant had applied for this stream but had not obtained the required skills assessment, which is a prerequisite for the Graduate Work stream. The core of the dispute revolved around whether the applicant's application could be assessed against the criteria for the Post-Study Work stream, which does not require a skills assessment at the time of application.

The Tribunal was required to determine two key issues: firstly, whether the applicant's visa application could be assessed against the criteria for the Post-Study Work stream, and secondly, if so, whether the applicant met those criteria. The applicant contended that they had a genuine misunderstanding of the visa requirements, having applied during the early stages of the COVID-19 pandemic and being unable to obtain legal advice. They claimed not to have been aware of the existence of two distinct streams for the Subclass 485 visa.

In its reasoning, the Tribunal noted that the regulations did not expressly prohibit an applicant from being considered for either stream or from changing streams after lodging their initial application. Drawing on the authority of *Prajapati* [2021] AATA 2543, which considered previous Federal Circuit Court and Tribunal decisions, the Tribunal concluded that a visa application could be assessed against a different stream if there was substantial compliance with the application form. The Tribunal found that it was open to consider the applicant's application against the Post-Study Work stream if satisfied that the application was, in substance, for that stream. The Tribunal found that the applicant met criterion cl.485.231 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the applicant's visa application for reconsideration by the Minister, with a direction that the applicant meets criterion cl.485.231 of Schedule 2 to the Regulations.