Implications of Tobon v Minister for Immigration & Anor (2014) on Temporary Graduate Visa

The case of Tobon v Minister for Immigration & Anor (2014) deals with the issue of satisfying the criteria for the grant of Temporary Graduate Visa. The court's interpretation of the term 'closely related' has significant implications for students seeking to remain in Australia to work after completing their studies. The decision clarifies that there is no need for a direct match between the subject matter of the course and the nominated occupation, but rather the skills acquired through Australian study should be capable of being used for more than a small part of the skilled occupation.

Read the case Tobon v Minister for Immigration & Anor (2014) FCCA 2208 (26 September
2014), which is attached to this assignment
To
Date
Re: reasons for the court to arrive at the decision and implications of Tobon v Minister for
Immigration & Anor (2014)
Dear Sir,
This case particularly deals with the issue of satisfying the criteria for the grant of "temporary
graduate" (subclass 485) visa. Generally, the question arises, how an applicant seeking visa
under "graduate work stream" can fulfill the criterion of clause 485 of the Migration Regulations
by establishing that the degree, diploma or trade qualification used for satisfying the Australian
study requirement is closely related with the nominated scale application of the applicant. This
question is obviously of high significance for the students who want to remain in Australia to
work, after they have completed the study. Similarly, it has consequences for the students who
want to nominate an occupation in their 485 application that does not correspond exactly or
completely with the courses that they have studied in Australia. Therefore the question arises
regarding the exact meaning of the words "closely related" used in clause 485.222.

In Tobon v Minister for Immigration & Anor1 some answers to these questions can be found in
the wording delivered by Judge Manousaridis of the Federal Circuit Court. After going through
the basic facts of this case, it appears that the applicant had a major challenge and obtained a
Temporary Graduate visa. The applicant had obtained a degree in civil engineering from
National University of Columbia. Thereafter, the applicant came to Australia and started a
diploma course in human resource management. After the completion of the course, the
applicant applied for 485 visa. However, the applicant nominated the occupation as civil
engineer and not as human resource manager.
These were the circumstances when the officer of the department refused application on the
grounds that the course that was taken by the applicant was of human resource management and
it was not "closely related" with the nominated scale occupation of civil engineer. This
conclusion was also supported by the Migration Review Tribunal. Therefore, the refusal of the
application was affirmed. But even if it may appear to be surprising, according to Judge
Manousaridis, the term "closely related" had been misinterpreted by the Tribunal. And while
doing so, a jurisdictional and has been committed by the Tribunal. According to the judge, the
term "closely related" needs to be considered as meaning only that "the skills that are required by
the applicant by undertaking, study or training are the skills that fall within the set of skills
related with carrying out the nominated skilled occupation". Moreover, the court also stated that
it was not necessary that the study allowed the applicant to gain all or even a significant part of
their skill set. Related with nominated occupation or that the degree or diploma achieved by such
course is a prerequisite for being qualified to engage in the skilled occupation.2
1 Tobon v Minister for Immigration & Anor (2014) FCCA 2208
2 Uddin v Minister for Immigration & Citizenship [2010]

In this way, describing the interpretation adopted by the judge, it can be briefly stated by using
the language from the judgment where it was mentioned that "the skills to which the diploma (or
any other politician that has been achieved by Australian education) is related should be capable
of being used for more than a small part of the nominated skilled occupation". In this way the
judge had particularly rejected the interpretation adopted by the tribunal according to which the
meaning of the term "closely related" is that the studies done by the visa applicants should be "on
their own" provide the necessary skills to the applicant that are required for performing its
eastern part of the skilled occupation.3 Therefore the court had rejected the interpretation of the
tribunal that was drawn from the PAM, according to which the skills that have been acquired by
completing the course in Australia should be "directly transferable" to the nominated occupation
due to the reason that the law in itself does not describe the requirement that the skill needs to be
directly transferable.4
In this way, the implications of this decision are that there is no need of having a direct "match"
or "overlap" between the subject matter of the course undertaken by the student in Australia and
the nominated scale of the vision for the purpose of establishing that the applicant is allowed by
the law to qualify for a Temporary Graduate visa.5 In such cases it is only required that the skills
that have been achieved by the student through Australian study should be capable of being used
for more than a small part of skilled occupation.
On the other hand, according to the policy of the department, the major factor in deciding if a
politician is closely related with the nominated skilled occupation is if the skill set underpinning
the qualifications is directly transferable to the nominated occupation, both in terms of subject
3 Prasad v Minister for Immigration & Citizenship [2012] FCA 591
4 Migration Regulations 1994 (Cth)
5 Education Services for Oversear Students Act, 2000 (Cth)

matter and also regarding the level of qualification at which the skills have been obtained. On the
other hand, the court stated that it appears that the Tribunal had applied the terms of the policy
instead of the words of the regulation to which the policy was applicable. Therefore the court
stated that there will be no difficulties in the words of the policy reflected the words of the
regulation or at least they showed a construction of the regulation as declared by the court to be
the correct construction. Therefore the court stated that the words of the policy that was applied
by the tribunal were different from the words used in clause 485.213(b) and as a result, these
words failed to reflect and accepted conception of clause 485.213(b).
Yours faithfully
(Name)

Reference
Prasad v Minister for Immigration & Citizenship [2012] FCA 591
Tobon v Minister for Immigration & Anor (2014) FCCA 2208
Uddin v Minister for Immigration & Citizenship [2010] FCA 1281
Legislation
Education Services for Oversear Students Act, 2000 (Cth)
Migration Regulations 1994 (Cth)