Sansurooah (Migration)

The Administrative Appeals Tribunal considered a migration matter involving an applicant seeking a Subclass 485 (Temporary Graduate) visa in the Graduate Work stream. The delegate had refused the application, finding that a criterion for that stream, specifically the requirement to apply for a skills assessment prior to the visa application date, had not been met. The applicant contended that she had been unaware of the distinction between the Graduate Work stream and the Post-Study Work stream and had been advised by her university that she was eligible for the visa without a skills assessment, given her Master of Professional Accounting qualification.

The Tribunal was required to determine whether the applicant's visa application could be assessed against the criteria for the Post-Study Work stream, and if so, whether those criteria were met. The applicant argued that she had mistakenly applied for the Graduate Work stream and that her intention was to apply for the Post-Study Work stream, which would not have required a pre-application skills assessment. The Tribunal noted that the visa application form required the nomination of only one stream, but that the regulations did not expressly prohibit an applicant from being considered against an alternative stream, particularly where there was substantial compliance with the application form.

The Tribunal reasoned that previous decisions, including those remitted by consent, supported the consideration of an applicant's claimed intention to have applied in an alternate stream. While acknowledging the decision in *Singh v Minister for Immigration & Anor* [2020] FCA 774, where the Federal Circuit Court did not consider the applicant's claimed intention to apply in an alternate stream, the Tribunal distinguished that case. It noted that in *Singh*, the applicant had not made the claim of intended alternate stream application prior to his appeal to the Federal Circuit Court. In the present case, the Tribunal found that it was open to consider the applicant for the Post-Study Work stream based on her stated intention and the circumstances of her application.

Consequently, the Tribunal found that the applicant met criterion cl.485.231 of Schedule 2 to the Regulations. The Tribunal remitted the visa application to the Minister for reconsideration, with the direction that the applicant meets this specific criterion.