Full Court Explains Meaning of Term "Closely Related" for 485 Visas

Would you agree that there are occasions when trying to work your way through the Act and Regulations to determine whether a client meets the eligibility criteria for a certain kind of visa is enough to make your eyes go out of focus, your head spin, and prompt you either to want to have a nap or go out for an early lunch and not come back to work until you have had several drinks?

Well, if so, you are not alone – even the courts have been known to remark upon the complexity of the migration legislation!!!

A decision of the Full Court that was handed toward the end of August, Talha v Minister for Immigration and Border Protection, (2015) FCAFC 115 (25 August 2015) illustrates how difficult it can sometimes be to figure out whether the criteria for grant of a visa can be satisfied.

The case involved an application for a “Skilled (Provisional)” (subclass 485) visa, which of course is one of the primary “stepping stones” for overseas students who wish to remain in Australia following the completion of their studies to gain entry to the work force. 

The key question in the case was whether the coursework which the applicant had undertaken in Australia could be considered to be “closely related” to the skilled occupation that the applicant had “nominated” (identified) in his application.  At the time that this case arose, clause 485.213(a) of Schedule 2 of the Regulations required that the applicant must have satisfied the “Australian study requirement” within 6 months of the time of making the application, and clause 485.213(b) specified that each degree, diploma or trade qualification that was relied upon to satisfy the Australian study requirement must be “closely related” to the nominated skilled occupation. (These same requirements of a Subclass 485 visa remain in force, but they now appear at different clauses being clauses 485.221 and 485.222, respectively).

The question of whether the applicant’s study in Australia was “closely related” to his nominated occupation unfolded in the following manner in the Talha case:  The applicant had completed a number of certificate and diploma courses in “business” studies in Australia.  Although Engineers Australia had assessed him as meeting the qualifications for a “Telecommunications Engineer”, the occupation that the applicant had nominated on his application was as an “Engineering Technologist”.   The applicant had claimed in his application that the business courses that he had taken were “closely related” to the nominated occupation of “Engineering Technologist” on the basis that “the market was looking for professionals who had combined knowledge and skills consisting of technical knowledge and business/management skills”.

In the first instance, the Department refused the visa application on the basis that the applicant’s coursework in Australia was not “closely related” to the occupation of Engineering Technologist. This refusal was affirmed by the Migration Review Tribunal. An application for judicial review was then made to the Federal Circuit Court, where it was contended that the MRT had committed jurisdictional error by confining its attention to whether the studies “matched” the description of the specific occupation of “Engineering Technologist” as described in the Australian and New Zealand Standard Classification of Occupations”  (“ANZSCO Code”), and by failing to consider whether the applicant’s studies were “closely related” to the tasks described for engineering professionals in other parts of the Code. 

The Federal Circuit Court had held that the MRT did not commit jurisdictional error by limiting its consideration to whether the business studies that had been undertaken by the applicant were closely related to the occupation of Engineering Technologist, without taking account other relevant parts of the Code. However, the Full Court rejected that interpretation.

As discussed in the Full Court’s judgment, the ANZSCO Code is comprised of a system of hierarchies. At the lowest level of this hierarchy, ANZSCO includes a list of “occupations” that fall within the classification of “Engineering Technologist”. The next level of this hierarchy is what is known as a “unit group”, known as “other Engineering Professionals”. The “occupation” of Engineering Technologist is included in this “unit group”. The next step up the ladder of the ANZSCO hierarchy is what is known as a “minor group” – in the particular circumstances of this case, that “minor group” included “Engineering Professionals”.  ANZSCO also has two further “steps” up the hierarchy – “sub-major groups” (which in this case included “Design, Engineering, Science and Transport Professionals”) and a “major group” which included “professionals”, including “engineering” professionals.

As it turned out in this case, the Full Court found that the description in the ANZSCO Code of the “tasks” for the “minor group” of Engineering Professionals included items of “work” that could be considered “on their face” to have a relationship to the business courses that the applicant had studied in Australia  (for example, “tasks” such as “organizing and managing project labour and the delivery of plan and equipment” and “estimating total costs and preparing detailed cost plans and estimates as tools for budgetary control”.

The Full Court ruled that the MRT had fallen into jurisdictional error by limiting its inquiry to considering whether the business courses were related to the occupation that the applicant had nominated (Engineering Technologist) and not examining whether the tasks higher on the “hierarchy” within which the occupation of Engineering Technologist was classified under ANZSCO.  As the Court put it, the assessment that is required to determine whether a nominated occupation is “closely related” to an applicant’s Australian studies must have regard to “the whole of (the) Australian studies compared with the whole of the nominated occupation”.  Or, as it was put in the case of Contantino v Minister for Immigration and Border Protection (2013 FCA 1301, a case which was “cited with approval” in Talha: the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists”.

In short, the Talha decision instructs us that when the question of whether an applicant’s Australian studies are “closely related” to the occupation that is nominated on a subclass 485 application, it is necessary to look to the entirety of the ANZSCO Code, and not just the part of the Code that describes the specific nominated occupation.  If some of the “tasks” that are described “higher up the hierarchy” of ANZSCO  - for example, in the task descriptions listed in the “minor group” or “sub-major group” within which the occupation falls are relevant to an applicant’s course of Australian studies, a finding may be made that the studies are “closely related” to the occupation.

I hope that this post has clarified what might appear to be a confusing and opaque topic. However, if you still “need a drink” after reading this article, I have recently discovered that there are some really “cool bars” near my office by reading an article in the New York Times Travel section!! I’ll be happy to meet you there after work – your shout!!

Source: Migration Alliance Posted by Michael Ephraim Arch on Monday, 12 October 2015 in General

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