Federal Court. The decision in Constantino from 2013 was to the effect that the whole of the qualification is to be compared with the whole of the occupation for the purpose of cl 485.222 of Schedule 2 to the Migration Regulations 1994 (Cth)? Can it be said that "descending into an analysis of some of the subjects undertaken in order to find a relationship in part is not required, if the comparison undertaken of the two 'wholes' indicates the test of close relationship would not be satisfied in any event"?
Item 1229(3)(k) of Schedule 1 to the Migration Regulations 1994 (Cth) provided as follows (emphasis added):
(k) An applicant seeking to satisfy the primary criteria for the grant of a Subclass 485 (Temporary Graduate) visa in the Graduate Work stream must nominate a skilled occupation for the applicant that is specified by the Minister in an instrument in writing for this paragraph.
Clause 485.222 of Schedule 2 to the Regulations provided as follows (emphasis added):
Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant's nominated skilled occupation.
'Skilled occupation' was defined as follows in r 1.15I of the Regulations (emphasis added):
Skilled occupation
(1) A skilled occupation, in relation to a person, means an occupation of a kind:
(a) that is specified by the Minister in an instrument in writing to be a skilled occupation; and
(b) if a number of points are specified in the instrument as being available - for which the number of points are available; and
(c) that is applicable to the person in accordance with the specification of the occupatio
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Is the phrase 'nominated skilled occupation' in cl 485.222 to be read having regard to Item 1229(3)(k) and r 1.15I?
Question 2: The decision in Constantino v Minister for Immigration and Border Protection [2013] FCA 1301 is to the effect that the whole of the qualification is to be compared with the whole of the occupation for the purpose of cl 485.222? Can it be said that "descending into an analysis of some of the subjects undertaken in order to find a relationship in part is not required, if the comparison undertaken of the two 'wholes' indicates the test of close relationship would not be satisfied in any event"?
Question 3: Can it be said that, where a ground of judicial review agitated for the first time on appeal has some merit, "it is often appropriate to extend some latitude to a self-represented litigant, even where no explanation is provided by an appellant"?
The FCA answered those questions as follows: