Login / Join
Australian Immigration Daily News
Breaking Australian immigration news brought to you by Migration Alliance and associated bloggers. Please email help@migrationalliance.com.au
- Font size: Larger Smaller
- Hits: 5243
- 7 Comments
Court Provides Guidance On Criteria For 485 Visas
How can an applicant satisfy the criteria for the grant of a “Temporary Graduate” (Subclass 485) visa?
More specifically, how can an applicant who seeks a visa under the “Graduate Work Stream” meet the criterion of clause 485.222 of Schedule 2 of the Migration Regulations that they demonstrate that the degree, diploma or trade qualification that is used to satisfy the Australian study requirement be “closely related” to the applicant’s nominated skilled occupation?
This is a question that is of obvious importance to students who wish to remain in Australia to work for a period of time after they have completed their studies.
And it is of particular consequence to students who wish to nominate an occupation in their 485 applications that do not correspond exactly, or entirely, with the courses that they have taken in Australia.
What, then, precisely, do the words “closely related” as used in clause 485.222, actually mean?
Some answers to these questions can be found in a decision that was handed down by Judge Manousaridis of the Federal Circuit Court in the case of Tobon v Minister for Immigration & Anor (2014) FCCA 2208 (26 September 2014).
On the basic facts of this case, it appeared that the applicant faced a very difficult challenge to obtaining a Temporary Graduate visa. The background was that he had obtained a degree in civil engineering from the National University of Colombia, and had then come to Australia and had undertaken a diploma course in “human resources management”. Following the completion of this course, he applied for a 485 visa and nominated the occupation “civil engineer” (not “human resources manager”) on his application.
A Departmental officer refused the application on the grounds that the course that the applicant had taken in human resources management was not “closely related” to the nominated skilled occupation of civil engineer. The Migration Review Tribunal agreed with this conclusion, and therefore affirmed the refusal of the application.
However, surprising though the decision may seem, Judge Manousaridis found that the Tribunal has misinterpreted the term “closely related”, and that in doing so, it had committed jurisdictional error.
Judge Manousaridis took the view that the term “closely related” should be read to mean only that “the skills that the applicant acquires by undertaking..study or training…are skills that fall within the set of skills associated with carrying on the nominated skilled occupation”. Further, it was Judge Manousaridis's conclusion that it is not necessary that the studies enable the applicant to gain all, or even a substantial portion of the skill set of the nominated occupation, or that the degree or diploma that is gained through the course be a prerequisite to being qualified to engage in the skilled occupation.
To put Judge Manousaridis's interpretation in “shorthand”, it is convenient to quote the following language from His Honour’s judgment: “the skills to which the diploma (or other qualification obtained through Australian study) relates must be capable of being used for more than a small part of the nominated skilled occupation”.
Judge Manousaridis specifically rejected the Tribunal’s interpretation that the term “closely related” means that the studies pursued by the visa applicant must “on their own” equip the applicant with skills to perform at least part of the skilled occupation. His Honour also rejected the Tribunal’s interpretation, drawn from the PAM, that the skills acquired through the course must be “directly transferable” to the nominated occupation, for the reason that the legislation does not itself impose the requirement that the skills be directly transferable.
So, exactly what are the implications of the decision in the Tobon case? The decision means that there does not have to be a direct “overlap” or “match” between the subject matter of the course and the nominated skilled occupation in order for an applicant to be able to qualify for a Temporary Graduate visa. All that is necessary is that the skills that are gained through the Australian study must be capable of being used for more than a small part of the skilled occupation.
Concordia Pacific , Email: This email address is being protected from spambots. You need JavaScript enabled to view it.
, Tel: (02) 8068 8837
Comments
-
Monday, 20 November 2017For those seeking further advise or clarification of issues discussed in these posts, please contact help@migrationalliance.com.au or concordialaw@optusnet.com.au.
-
Saturday, 19 May 2018
I think you need to read the case more carefully. The original article is
"These reasons indicate the Tribunal was of the view that before a diploma can be closely related to a nominated skilled occupation, the skills to which the diploma relates must be capable of being used for more than a small part of the nominated skilled occupation.
In my opinion, such a construction also is not warranted."
So the Judge is actually against the Tribunal's view which is "the skills to which the diploma relates must be capable of being used for more than a small part of the nominated skilled occupation"... -
Friday, 28 May 2021
In this case, the applicant's work experience was acting as Supervisor of trade qualified sub-contractors teams; his University degree was Civil Architecture and his course of studies was Human Resource Manager (Dip.); both qualifications indicate different roles at the professional level, however, the lower qualification would help the Architect to make the right selection of qualified tradesmen during an interview process to work as a team member in a construction project.
-
Tuesday, 12 February 2019
I woul,d like to know what happen if after the case is remitted, immigration still asks for skills assessment?
-
Friday, 28 May 2021
The Applicant won a permanent residency at the end of the case without further issues raised by the Department of Immigration.
-
Wednesday, 19 May 2021
Blessed is the information we find on the internet; the applicant's mentor in the case 'Tobon v Minister for Immigration & Anor (2014) FCCA 2208 (26 September 2014)' is not mentioned. However, Mr. Michael Arch, through Migration Alliance, advertises the case on this blog as a successful case. I am not impressed by those who do not provide any credit to the actual winner of the case. I believe it is an unethical action committed by a lawyer; under conventional law policies, we learned in the school of laws at universities under the syllabus "Academic Integrity Module."
My name is Ramon Antonio Reyes Gonzalez; I am neither a Registered Migration Agent nor a lawyer. I identify myself as a Human Rights Defender in Australia. Let me tell you that I accompanied the Colombian civil architect, Mr. Tobon, to the consultations of three law firms, none of them gave any hope of winning the case, but they charged high sums of money for the interviews. One of those three firms offered to represent him in Court by charging their fees for the sum of $15,000.00 that the applicant could not pay.
The applicant, very disappointed by his unfair immigration experience, asked me for the favor of helping him to prepare his application before the Court, exposing himself to losing his case because of my lack of legal qualifications. Encouraging the applicant, I told him I would do my best to achieve a favorable decision by the judge. This internet article makes me feel confident in my critical thinking abilities and appropriate preparation for the applicant to self-representation before the Court. The arguments put forward were valid, reasonable, logical, and with a moderate tone of voice, we persuaded the Honourable Judge Manousaridis.
I became aware of this internet article because I searched for appropriate information for my next topic at the FCC. Case number: SYG519/2021 - title: AUT21 & ANOR v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR. This legal, judicial review will be 'The Best Interest of the Child.' – Any legal advice from Migration Alliance staff is welcome; the applicant is a single young mother without financial resources to afford lawyer's fees.
http://ramon-a-reyes-g.tripod.com
Immigration blog
it is a great case study to read, i have the exact same situation required your assistance, please