Sometimes, you can learn a lot more from studying a case that was ultimately unsuccessful than you can from a case where everything went perfectly from the start, it all went swimmingly, and the applicant was granted the visa that she or he applied for.
The cases where things have gone “pear-shaped”, or run off the rails, show us where the pitfalls and potholes are, alert us to issues that we need to be aware of, and show us how to avoid running into similar problems in the future.
A case that was decided last week, Singh & Anor v Minister for Immigration & Anor (2017) FCCA 192 (7 February 2017) provides a perfect example.
In this case, the applicant sought a Subclass 485 visa in order to enable him to remain in Australia and to work for a period of time after the completion of his course of studies under a student visa. He had completed an Advanced Diploma of Marketing, and for the purposes of his 485 application the occupation that he nominated was that of a ‘motor mechanic’. It was his argument that his marketing knowledge had assisted him to obtain his current employment as a mechanic and that his marketing skills would assist him to become a self-employed marketing mechanic at some point in the future.
The problem for the applicant in this case was that in order to qualify for the grant of the 485 visa, he had to satisfy clause 485.222 of Schedule 2 of the Migration Regulations. This clause requires that:
‘Each degree, diploma, or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation’.
The Departmental officer who originally assessed the application, and the Tribunal, were both of the view that the applicant’s studies in advanced marketing were not in fact closely related to the nominated application of motor mechanic. So the Department refused the application and the Tribunal affirmed the refusal.
It would certainly seem, considered casually, that marketing and motor mechanics aren’t really related at all. Wouldn’t it?
So, was the application ‘dead on arrival’?
To answer this question, the Federal Circuit Court had regard to the relevant case law, in particular the decision of the Full Court in Minister for Immigration and Border Protection v Dhillon. In that case, the Full Court held that there does not need to be an ‘exact correspondence’ between the course of study that is relied on and the nominated occupation, but it did need to be established that the skills gained through the course of study were ‘more than merely complementary’ to the occupation, or, at least, that the skills gained through Australian study could be used in the occupation.
In Dhillon, it was said that the task of determining whether the nominated occupation is ‘closely related’ to the course of study by comparing the description of the occupation that is given in the Australian Standard Classification of Occupations or the Australian and New Zealand Standard Classification of Occupations with the content of the courses completed by the applicant.
In the Singh case, the applicant asserted that his diploma in Advance Marketing was ‘closely related’ to his future career path, of running his own business as a motor mechanic.
So, is that enough to satisfy the criteria for a 485 visa, that the degree only be closely related to the applicant’s ‘claimed or proposed occupation or career path’?
The conclusion reached by the Federal Circuit Court in the Singh case is that it is not sufficient.
The Court referred to an earlier decision of the Federal Magistrates Court in the case of Manik v Minister for Immigration and Citizenship, where it was held that the assessment of whether the nominated occupation is ‘closely related’ should:
‘…..focus on the objective tasks of the nominated skilled occupation, which are reflected in ASCO, and not on what an applicant does in their employment or what they intend to do in their future employment’.
So in the end it all boils down to a very hard-headed comparison between what the ANZSCO describes as the actual tasks to be done in the nominated occupation with the substance of the coursework that has been undertaken by the applicant in Australia. If the coursework does not provide skills that will actually be used in the nominated occupation, it is very doubtful that the occupation will be viewed to be ‘closely related’, or that a 485 visa application will succeed.
So, if an applicant comes to you and wants your help with a 485 application that doesn’t seem to be related to the studies they have done in Australia, then it’s probably problematic and the best approach would be to examine whether or not there is some occupation that would be more truly related to the course of study. For example, if what is proposed in the application sounds ‘farfetched’, for example an application by a person who has obtained an Australian qualification in business management to work as a pastry cook, then it probably is.
As the saying goes, if it walks like a duck, and quacks like a duck, then it probably is a duck!
Or to put it in Australian, if it don’t pass the ‘pub test’, it probably ain’t going to make it through the Department!
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