In a recent case the Federal Court was asked if the Appellant, a subclass 485 visa applicant, had to satisfy cl 485.222 to Schedule 2 of the Migration Regulations 1994 (Cth), which read as follows: “Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation”. Did the Tribunal make an error in finding that a Diploma of Marketing was not closely related to the nominated occupation of chef? The court said NO.
The reason the court found so was the requirements set out in the authorities of the court, which states the nature of the skilled occupation of chef, and compared that with the unit courses of the appellant’s Advanced Diploma of Marketing. It is difficult to detect any error in the observation that some of the tasks identified in the ANZSCO definition of “chef” are broad and do not directly relate to the unit courses outlined by the appellant. The marketing course was complementary to, but not closely related to, that of the occupation of a chef. In this sense the Tribunal directly addressed the issue which is the primary concern of the appellant and, in doing so, applied the correct test to ascertain whether the course and the appellant’s occupation as a chef were closely related. There was no error in the manner in which it made that comparison. It is further difficult to detect any error in the observation that the marketing qualification was generic, in that it would apply to nearly all occupations. Indeed this appeared to be acknowledged by the appellant before this Court. As the authorities set out above make clear, the fact that the course of study is complementary to the nominated profession is insufficient and the Tribunal made no error in concluding as such.
Indeed, the Tribunal’s decision in the present case is analogous to that under consideration in Dhillon. In that case the Tribunal found that Mr Dhillon had not satisfied the requirement under reg 886.211 because the business management qualification he obtained was not “closely related” to his nominated skilled occupation of pastry cook. That decision was affirmed in the FCC and the Federal Court.
In the circumstances the appellant has not identified any error in the reasons of the Tribunal which the FCC had failed to detect. The finding that the tasks of a chef were not closely related to the course work undertaken in the Diploma of Marketing was open on the evidence which the Tribunal had before it. Its findings of fact were supported by probative evidence.
So if you or anyone you know has had a visa refused on these grounds, make an appointment with a Master Migration Lawyer.
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