485 Visa & Closely Related Course To Nominated Occupation

485 Visa & Closely Related
To apply for a 485 Visa, your qualification must be closely related to your nominated occupation

485 Visa & Closely Related – your qualification(s) must be closely related to your nominated occupation. What does closely related mean when you apply for a Skilled (Provisional) Class VC Subclass 485 (Temporary Graduate) Visa?

If you apply for a 485 visa (click here to learn more about Temporary Graduate 485 visa) after you have completed your Australia studies, your qualification(s) must be closely related to your nominated occupation. This is in addition to satisfying the “Australia study requirement” in the 6 months before you lodge your visa 485 visa application.

Each degree, diploma or trade qualification used to satisfy the “Australia study requirement” must also be closely related to your nominated skilled occupation.

Closely related – what does closely related mean

485 Visa & Closely Related Court Decisions

Court defined the meaning of “closely related”

The term closely related is not defined in the Migration Act 1958 or the Migration Regulations 1994. However, the decision of the Full Court in MIBP v Dhillon (2014) 227 FCR 525 and Talha v MIBP [2015] FCAFC 115 and Constantino v MIBP [2013] FCA 1301 provide guidance on the definition “closely related”.

The above Court decisions explained that for a qualification to be “closely related” to an occupation, the relationship between the skills gained in the qualification and the occupation must be more than mere complementary.

The words “closely related” require and call attention to the connection between 2 things, and do not require an exact correspondence (Dhillon), the relationship must be more than merely complimentary (Constantino).

In making the assessment of closely related when applying for a 485 visa, the nature of the nominated occupation must be determined by reference to the ANZSCO (Australian and New Zealand Standard Classification of Occupations). ANZSCO needs to be read as a whole with a view to identifying and applying information which is relevant to an understanding of the whole of the nominated occupation (Talha).

The Court in Chawdhury v MIAC (2011) FMCA 275; Kabir v MIAC (2010) FMCA 577; Shafiuzzaman v MIAC (2011) FMCA 874) affirmed that objectivity is required when considering the relationship of the 485 visa applicant’s qualification(s) to the ANZSCO definition of the occupation and not proximity of the qualifications or usefulness of the qualifications to the nominated occupation.

Hence, whether a 485 visa applicant’s Australian qualifications are closely related to the nominated occupation and it is critical for the whole of the Australian studies be compared with the whole of the nominated occupation.

485 Visa & Closely Related

Example of 485 Visa & Closely Related

It is no important whether the qualification is useful, complements or has a broader relevance to the occupation. For example, if you have completed a qualification in Commercial Cookery and a Diploma of Business to satisfy the Australia studies requirement, and you applied for a 485 visa nominating your occupation as a Chef (ANZSCO 351311). The Department of Immigration (Department of Home Affairs) must be satisfied that the Diploma of Business is closely related to the nominated occupation of a Chef.

In the case of Joon (Migration) [2019] AATA 2320 (1 April 2019), the 485 visa applicant argued that he studied Commercial Cookery (Certificate III and IV) so that he can be a Chef and he completed a Diploma of Business because later he would like to establish his own business (a restaurant). The Tribunal concluded that his occupation as a Chef must be closely related to his qualification (Diploma of Business) and did not accept that the skills, such as review of administrative systems, meetings management, project work, risk management, marketing or managing business document design, he obtained from his Diploma of Business course form part of the occupation of a Chef. The Tribunal also said that the tasks of a Chef must be consistent with the description for the nominated occupation of a Chef set out in ANZSCO. The Tribunal appreciated that Joon wants to run his own business in the future, the Cookery qualifications allow him to do basic cooking and he needed business skills to be able to run his own restaurant. However, the assessment, by law, relates to the occupation nominated by the 485 visa applicant – that of a Chef – and not an occupation in which he may wish to engage in the future. In the Tribunal’s view, if the 485 visa applicant decides to run his own business in the future, his occupation may be that of a restaurant owner or manager and not that of a Chef.

In Pasula v Minister for Immigration & Anor [2010] FMCA 219 Smith FM said at [23]:

…. the relevance of a qualification for the purposes of Sch. 2 cl. 880.215 of the regulations [“closely related”] must relate to the nominated occupation itself, and not to some different occupational classification which might later be pursued by the visa applicant, and which would then involve use of the two qualifications.

Notwithstanding the above, the Court in Walia v MIBP [2015] FCCA 1949 confirmed that consideration must be given to the whole of the Australian studies and the whole of the nominated occupation. This mean you can argue that the skills you acquired in your qualifications form a meaningful part of the whole of your nominated occupation.

In Joon’s case above, the Tribunal said that there are very few, if any, business responsibilities that form part of the occupation of a Chef. The Tribunal also said that as a Chef, the 485 visa applicant would routinely perform tasks such as marketing, managing meetings, risk management (in the context of a business, rather than running a kitchen), business document design and project management. And the Tribunal concluded that these tasks do not form part of the occupation as a whole or form part of the normal responsibilities of a Chef.

Some skills obtained from another qualification that could be helpful to perform some of the tasks of your nominated occupation is not enough, there must be a close relationship and not merely the usefulness of one to the other for you to be granted a 485 visa if you are relying on qualification(s) obtained that is not closely related to your nominated occupation.

Similarly, a qualification that is complimentary to the nominated occupation may not be closely related to satisfy the grant of the 485 visa. In addition, the skills acquired in a qualification that is useful to a nominated occupation does not meet the statutory test of being “closely related”.

To be granted a 485 visa, you must establish the close relationship between the entire qualification and the nominated occupation. Relying on a few individual units in your qualification and not the qualification as a whole to perform your nominated occupation is not sufficient or the usefulness of 1 unit to the others is also not sufficient as there must be a close relationship between the qualification and the nominated occupation.

In summary, your qualification(s) must include a substantial proportion of study units consistent with the tasks in your nominated occupation as described in the ANZSCO. A few study units that are not directly relevant to your nominated occupation is acceptable as long as a substantial proportion of the skills acquired are consistent with your nominated occupation (see Andrean (Migration) [2019] AATA 3481 (19 June 2019)).

For example, if you are a nurse and you completed a Diploma of Leadership and Management, it is unlikely the skills and knowledge you obtained from the Diploma course will be closely related to your occupation as a nurse. This is because nurses are not required to have leadership and management skills when performing nursing duties and tasks. Similarly, you cannot say that you may require leadership and management skills to apply for a nursing supervisor or manager position even though a Diploma of Leadership and Management qualification may complement your [future] nursing occupation. The skills and knowledge from completing the Diploma of Leadership and Management course must be necessary for you to perform your current occupation and not for a position you plan to apply in the future or a promotion that may or may not happen in the future.

To find out when you can apply for Subclass 485 visa, please click here.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to discuss whether you are able to apply for a 485 visa and your qualification(s) is closely related to your nominated occupation or click here to find answers to your questions or click here to learn when and how to apply for an AAT hearing.

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This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

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