Federal Court (Full Court). Cl 485.222: "Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation". This decision concerned cl 485.213(b), which was drafted in identical terms. Can it be inferred from those provisions "that an assessment of the visa applicant’s skills for his or her nominated skilled application could be based on an assessment of the applicant’s qualifications obtained overseas and need not necessarily include any qualification obtained in Australia"? In reaching its conclusion at , the Tribunal had only considered ANZSCO's occupational description and the minor group in ANZSCO which included that occupation. Was it a jurisdictional error for the Tribunal to ignore the higher ANZSCO levels, namely the sub-major group and the major group?
Cl 485.221 provided that the applicant’s skills for his or her nominated skilled occupation “have been assessed by the relevant assessing authority as suitable for that occupation". Cl 485.221(2) provided that if such an assessment was made on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa, it was a requirement that the qualification was obtained as a result of studying a registered course. That provision is now reflected in cl 485.224.
The Appellant had completed several courses in Australia, including a Diploma of Business, and applied for visa subclass 485 nominating the occupation of Engineering Technologist. The Tribunal found:
47. ... a general business management course is not directed specifically at any industry, including the engineering industry, and prepares its graduates to work in any field. There is nothing in any of the courses completed by the applicant in Australia to suggest a link between these courses and the engineering industry and, more significantly, the occupation of an Engineering Technologist.
The questions to the Federal Court (FCA) were as follows:
Question 1: Can it be inferred from the above provisions "that an assessment of the visa applicant’s skills for his or her nominated skilled application could be based on an assessment of the applicant’s qualifications obtained overseas and need not necessarily include any qualification obtained in Australia"?
Question 2: In reaching its conclusion at , the Tribunal had only considered ANZSCO's occupational description and the minor group in ANZSCO which included that occupation. Was it a jurisdictional error for the Tribunal to ignore the higher ANZSCO levels, namely the sub-major group and the major group?
Question 3: Is it ultimately a matter for the for a court of for an administrative-decision maker to decide whether an applicant's studies are “closely related” to his nominated skilled occupation?
Question 4: Can it be said that, even if the answer to Question 3 is "for an administrative decision maker", it is critical that the whole of an applicant's studies be compared by that decision maker with the whole of the nominated occupation?
Question 5: Can it be said that "the task to be undertaken to determine whether a qualification is “closely related” to a nominated occupation does not require the finding of an exact correspondence between the two"?
Question 6: Can it be said that, although "some of the information contained in the higher groupings [might not be] relevant to individual occupations within the grouping, the fact remains that ... there was relevant information in the higher groupings" which the Tribunal was required to consider?
Question 7: Can it be said that "the ANZSCO Code has only a limited purpose, and is not suited at all to the task of determining whether a person’s Australian study qualifications are “closely related” to a nominated occupation"?
Question 8: The Appellant argued: "the structure of the ANZSCO Code into categories of varying levels of generality of specificity itself assumes that many occupations have some degree of relationship which includes overlapping content. For example, merely because the ANZSCO Code contains a classification for “Engineering Managers” says nothing about whether or not the occupation of an Engineering Technologist includes management tasks. It is sufficient that an Engineering Technologist may be required to perform some managerial tasks, which is a matter for the Tribunal to determine". Can it be said that "the fact that the ANZSCO Code also contains a separate unit group and occupational classification for “Engineering Managers” is not inconsistent with the correct approach to the use of relevant information in higher groupings in the ANZSCO Code?
Question 9: Had "the Tribunal proceeded on the basis that cl 485.213(b) required that the skills obtained from [the Appellant's] Australian studies could be used only for the purpose of his nominated skilled occupation", would that have been a jurisdictional error?
Question 10: PAM3 read (and still reads): "Under policy, the critical factor in determining whether a qualification is closely related to the nominated skilled occupation is whether the skill set/s underpinning the qualification/s are directly transferable to the nominated occupation, in terms of both subject matter and the level of qualification at which those skills were obtained". Was PAM3 supported by the terms of the relevant legislation?
Question 11: Is it correct to proceed on the basis that a course "is closely related to a nominated skilled occupation only if it results in the acquisition of skills that on their own [equip] the visa applicant to perform at least part of the nominated skilled occupation"?
Question 12: Must an administrative decision maker "[proceed] on the basis that, before a [course] can be closely related to a nominated skilled occupation, skills to which the diploma relates must be capable of being used for more than a small part of the nominated skilled occupation"?
Question 13: Can it be said that, although "whether all or a substantial proportion of the acquired skills are nominated skills" may be relevant to determining whether a qualification is “closely related” to a nominated occupation, that is not a necessary part of that determination?
Question 14: Should we "describe the evaluative exercise in cl 485.213(b) as requiring that a decision maker “must” undertake the three steps as set out in  of Tobon"?
The FCA answered those questions as follows:
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