关于immdiately before 的理解
The expression ‘immediately before’ has the effect that the Australian study requirement must be satisfied, at the latest, on the day before the application for the visa is made. It cannot be satisfied on the same day that the application is made: Mahohoma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2206 per Kendall J (at [51]).
如果签证申请和完成是同一天，是不能满足immidiately before 的要求的。
关于完成课程的理解 最新的判例是Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1311
其中Para 28 引用 Venkatesan v Minister for Immigration [2008] FMCA 409; (2008) 216 FLR 356;
- In my view, the proper meaning to be ascribed to the item is that you complete the academic requirements for a course when you achieve the necessary results or credits to enable you to be awarded the relevant degree or diploma.
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It is clear beyond doubt that the Applicant had already completed and relevantly passed the relevant proportions of his course that gave rise to his credits well before August 2006.
17. To adopt what I hope is a commonsense approach, there was nothing more for the Applicant to do of an academic nature after 2 August 2006. What was required, admittedly, were certain steps, but they were purely administrative steps that did not require any form of academic effort by Mr Venkatesan nor any evaluation of any such effort by the university.
(b) Sapkota v Minister for Immigration and Citizenship [2012] FCA 981; and
Ultimately, Cowdroy J held that the appellant had completed his course before 31 October 2008, referring to Venkatesan with approval and reasoning that there were two necessary elements to the achievement of academic results (at [23]-[24]):
23 The Court considers that the definition of completion in reg 1.15F of the Regulations does not extend the date of completion to the date of the formal conferral of the degree at a graduation ceremony. A period of time elapses after the final grades for the course are awarded and the graduation ceremony when a number of administrative steps (e.g. finalising transcripts, testamurs, assigning students to graduation ceremonies which are only held periodically) are taken by the university without any academic effort on the part of the applicant. It seems that the date of completion would not extend to this period either.
24 However, the date at which one is taken to have ‘achieved the necessary results’ is also not the date of submission of the final piece of assessment. There are two necessary elements to achievement of academic results. One part is the student submitting all relevant items for assessment to the education provider. The second part is the education provider assessing these items and determining for itself whether the student has in fact achieved the academic result and awarding a result. The second part is essential. A student has no legal right to the award of a qualification unless a university decides for itself that the requisite requirements have been satisfied: see Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 at [96].
(Emphasis added.)
30 His Honour continued (at [25]-[26]):
25 In the timeline between a student completing the final piece of assessment of a course of study and the education institution conferring the relevant award, there comes a point when the education institution satisfies itself that the requirements have been met. That point is reached where the result of assessment for the final course or item of assessment which the student is required to complete as part of the course of study has been made publicly available, assuming that the result of the final piece of assessment meets the institution’s requirements for progression through the course. The publication of such result is in effect a statement from the institution that the student has completed all of the necessary components for the degree to be awarded. Accordingly the Court reaches the same conclusion as Burchardt FM in Venkatesan at [17].
关于485 closely related 的理解
很多485的拒签都是由于移民官认为申请人的2个课程不closely related 不满足485.213(b) each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation的要求。志杰移民认为最近的一个法院判例 Tobon v Minister for Immigration & Anor [2014] FCCA 2208 (26 September 2014) 可以帮助大家解决这个方面的疑惑，也是以后解决此类拒签问题的利器。在讨论 diploma of HR 和 civil engineer 是否相关的问题上 Manousaridis 法官判决移民局和MRT败诉， 他是这么理解这个问题的 第一… This implies that the Tribunal construed cl.485.213(b) as requiring that the skills, or at least a substantial proportion of the skills for which a diploma is awarded are skills that can only be used in the nominated skilled occupation.On my reading of cl.485.213(b), there is no warrant for such a construction… 也就是申请所学的课程并没有要求大多数应用于提名专业上。
第二 PAM 关于这个定义不符合法律要求 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…those words do not reflect an accepted construction of cl.485.213(b)..
第三 如果这个课程的大部分内容和提名专业的ANZSCO定义某一技能对应就可以认为紧密相关 。If all or a substantial part of a diploma results in skills that form part of the skill set of the nominated skilled occupation, cl.485.213(b) would be satisfied…That a diploma results in conferring skills, all or a substantial part of which form part of the skill set of the nominated occupation, is sufficient to establish a close relation between the diploma and the nominated skilled occupation…
这个法院判例已经被最新Talha v MIBP [2015] FCAFC 115的判例取代
Talha 说的是
As guided by the Court in Talha, when evaluating whether a qualification is ‘closely related’ to the nominated occupation, the Tribunal is required to consider the whole of the applicant’s studies and the whole of the nominated skilled occupation. 判断学历是否和提名职业紧密相关，必须进行全面的比较。
全面比较的意思是 regard to all relevant information (including tasks) in the whole of the ANZSCO groupings. 考虑整个的ANZSCO minor group的信息。包括ANZSCO的所有层级的信息都可以考虑。
As per Talha para 22
- It is important to understand the structure of the ANZSCO Code. It is divided into five “hierarchical levels”. Jobs are described at the most detailed level of classification as “occupations”. “Occupations” are then grouped together at a higher level of granularity to form “unit groups”, which in turn are grouped into “minor groups”. Minor groups are then aggregated to form “sub-major groups”, which in turn are aggregated at the highest level of granularity to form “major groups”. Significantly, in many cases, differing tasks are described at various levels of the hierarchy.
在Talha 的判例中，就认为diploma of business 是和ET的职业提名紧密相关的，就是参考了ANZSCO minor group 的信息。
比如在最近的一个案例中考虑graduate diploma of business 是否和提名职业business analyst 紧密相关
https://jade.io/article/1064607
AAT 考虑了ANZSCO major group 和 sub group 里的信息才做出graduate diploma of business 和 business 紧密相关的结论。
- Of course, it is ultimately a matter for the primary decision-maker and, on a statutory review, the Tribunal, to decide whether Mr Talha’s Australian studies are “closely related” to his nominated skilled occupation. But in carrying out the evaluative exercise it is critical that the whole of Mr Talha’s Australian studies be compared with the whole of his nominated occupation, as established in previous decisions of the Court, including Dhillon at [20] per Allsop CJ, Murphy and Pagone J, Constantino at [26] per Jacobson J and Bhanot at [29] per Perry J. As the Full Court stated in Dhillonat [20]:
The words “closely related” are not specifically defined in the Regulations or the relevant statutes but require, and call attention to, the connection between two things. 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 but it does require “that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists”: Constantino v Minister for Immigration and Border Protection [2013] FCA 1301, [26]. That is what the Tribunal did. The Tribunal informed itself about the nature of the skilled occupation of pastry cook by considering the Australian Standard Classification of Occupations (ASCO) and compared that with the course content submitted by Mr Dhillon for the units undertaken by him in the business management course completed at the Nova Institute. At [91] the Tribunal considered that the requirement of a qualification being “closely related” to the nominated occupation required that the relationship between the skills gained in the qualification were more than merely complementary to the occupation or that the skills could be used in that occupation. The Tribunal did not ask itself an incorrect question when determining whether the qualifications relied upon by Mr Dhillon were closely related to his nominated profession of pastry cook (see Bhanot v Minister for Immigration and Border Protection [2014] FCA 848, [21], [24], [38]) and on the materials its finding was open to the Tribunal.