Poopath (Migration)

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, subclass 485, Post Study Work stream, before the Tribunal. The applicant's agent had lodged the application, but it was indicated that the wrong stream, the Graduate Work stream, had been selected online. The applicant contended that they had always intended to apply for the Post Study Work stream.

The Tribunal was required to determine whether the applicant's visa application, lodged in the Graduate Work stream, could be considered as an application for the Post Study Work stream, given the applicant's stated intention and the alleged error by their agent. This involved considering the requirements for making a valid subclass 485 visa application, specifically the nomination of a single stream, and the implications of case law concerning the Tribunal's power to consider applications in streams other than those validly made.

The Tribunal noted that the applicant did not meet the criteria for the Graduate Work stream, as they had not provided evidence of a skills assessment, which is a mandatory requirement for that stream. However, the applicant did satisfy the Australian study requirement. The Tribunal considered the decisions in *Singh v MICMSMA* [2020] FCA 774 and *Abdul v MIBP* [2021] FCCA 349, which held that neither the Minister nor the Tribunal has the power to grant a visa in a stream other than the one in which the applicant applied, or to consider an application other than one validly made. Despite these authorities, the Tribunal found that the applicant met the requirements of cl 485.231 of Schedule 2 to the Regulations, which relates to the Post Study Work stream.

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