Liu v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1354
•28 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Liu v Minister for Immigration and Citizenship [2025] FedCFamC2G 1354
File number(s): MLG 3953 of 2020 Judgment of: JUDGE FARY Date of judgment: 28 August 2025 Catchwords: MIGRATION – application for Skilled (Provisional) (Class VC) (Subclass 485) visa – Administrative Review Tribunal not satisfied that the applicant met cl 485.222 of Schedule 2 of the Migration Regulations – affirmed Delegate’s decision to refuse the application – application for judicial review – no meaningful grounds of jurisdictional error asserted – application for judicial review dismissed. Legislation: Australian Constitution s 75(v)
Migration Act 1958 (Cth) s 47(1), s 65(1), s 430, 474, s 476, s 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Div 1 Pt 2 Sch 2
Migration Regulations 1994 (Cth) cll 485.1- 485.612, r 1.15I
Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALR 630
Bhaskar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 320
Carrascalao v Minister for Immigration & Border Protection (2017) 347 ALR 173
Constantino v Minister for Immigration and Border Protection [2013] FCA 1301; (2013) 139 ALD 567
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
ETA067 v The Republic of Nauru (2018) 360 ALR 228
Gehlert v Minister for Immigration and Multicultural Affairs (2024) 305 FCR 172
Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 129
Jabari v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2023) 298 FCR 431
Khan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 10
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321
MIBP v Dhillon [2014] FCAFC 157; (2014) 227 FCR 525
Minister for Immigration & Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643
Minister for Immigration & Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
Oshlack v Richmond River Council (1998) 193 CLR 72
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Savaiinaea v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCAFC 56
Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200
SZTMD v Minister for Immigration & Border Protection [2015] FCA 150
Talhap v Minister for Immigration and Border Protection [2015] 235 FCR 100
Division: Division 2 General Federal Law Number of paragraphs: 112 Date of last submission/s: 14 August 2025 Date of hearing: 18 August 2025 Place: Melbourne Counsel for the Applicant: Ms Zhou Solicitor for the Applicant: Mr Jiang, VSTAR Lawyers and Consultants Solicitor for the First Respondent: Mr Daly, Mills Oakley Solicitor for the Second Respondent: Submitting notice, save as to costs ORDERS
MLG 3953 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SHAO-TIEN LIU
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FARY
DATE OF ORDER:
28 AUGUST 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to "Minister for Immigration and Citizenship".
2.Pursuant to Item 10 of Sch 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), the "Administrative Review Tribunal" be substituted for "Administrative Appeals Tribunal" as the second respondent.
3.The application be dismissed.
4.The applicant pay the first respondent’s costs of and incidental to the proceeding, including any reserved costs, fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Fary
INTRODUCTION
By way of Application filed on 10 November 2020, the applicant (Applicant) seeks judicial review of the decision of the Administrative Review Tribunal (Tribunal) (formerly the Administrative Appeals Tribunal) dated 9 October 2020 (Tribunal’s Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
In the Tribunal’s Decision the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant (Applicant) a Skilled (Provisional) (Class VC) (Subclass 485) visa (Visa) on the basis that the Applicant did not satisfy cl 485.222 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
The hearing of the Application took place at the Melbourne Registry of the Court on 18 August 2025 (Hearing). The Minister was represented by a solicitor. The Applicant was represented by Counsel. At the conclusion of the Hearing, judgment was reserved.[1] These are the reasons for judgment in relation to the Hearing.
[1] Orders made by Judge Fary on 18 August 2025, Order 1.
ISSUE IN DISPUTE
The issue in dispute was whether the Tribunal made a jurisdictional error in determining that it was not satisfied that the Applicant had demonstrated how his skill set that underpinned the qualification was directly transferable to the nominated occupation (Nominated Occupation).
BACKGROUND
The Applicant is a citizen of Taiwan.
From 10 October 2016 to 25 March 2018, the Applicant completed a Certificate III in Painting and Decorating at Della International College.[2]
[2] CB 1-21.
From 30 April 2018 to 29 April 2019, the Applicant completed a Diploma of Building and Construction (Management) at Della International College (Diploma).[3]
[3] CB 1-21.
On 30 May 2019, the Applicant applied for the Visa, the subject of these proceedings.[4]
[4] CB 1-21.
On 31 July 2019, a Delegate of the Minister refused the Visa on the basis that the Applicant failed to satisfy cl 485.222 of the Regulations (Delegate’s Decision).[5]
[5] CB 52-59.
On 21 August 2019, the Applicant sought Review of the Delegate’s Decision before the Tribunal (Review Application).[6]
[6] CB 60-68.
On 24 August 2019, the Tribunal acknowledged receipt of the Review Application.[7]
[7] CB 70-72.
On 23 August 2020, the Applicant submitted an MR5 form appointing a representative (Applicant’s Representative).[8]
[8] CB 79-81
On 15 September 2020, the Applicant was invited to attend a telephone hearing on 7 October 2020.[9]
[9] CB 82-90.
On 20 September 2020, the Applicant’s Representative wrote to the Tribunal and provided a response to the hearing invitation.[10]
[10] CB 96-100.
On 1 October 2020, the Applicant’s Representative wrote to the Tribunal and provided supporting documents.[11]
[11] CB 101-129.
On 7 October 2020, the Applicant attended the telephone hearing, with the assistance of a Mandarin interpreter.[12]
[12] CB 131.
On 9 October 2020, the Tribunal affirmed the Delegate’s Decision under review.[13]
[13] CB 140-147.
On 12 October 2020, the Applicant was notified of the Tribunal’s Decision.[14]
[14] CB 134-147.
TRIBUNAL’S DECISION
The Tribunal’s Decision is at 140 to 147 of the Court Book.
The Tribunal first outlined the relevant law to the matter and the purpose of the Tribunal in relation to the Review Application: Tribunal’s Decision [9] to [21].
The Tribunal considered reg 1.15(1) of the Regulations in relation to the courses undertaken by the Applicant. The Tribunal was satisfied that the Applicant’s Diploma was conducted in the English language and at an Australian registered institution. The Tribunal accepted that the Applicant satisfied the ‘Australian study requirement’ in the six months immediately preceding the date of the Visa application. The Tribunal found that the Applicant met cl 485.221 of the Regulations.
The Tribunal was not satisfied that the Applicant provided adequate evidence to support his contention that the Diploma was closely related to his Nominated Occupation of Painting Trades Worker. The Tribunal noted it was incumbent upon the Applicant to demonstrate how the Diploma was ‘closely related’ and that he failed to do so. The Tribunal found that the Applicant failed to meet cl 485.222 of the Regulations.
The Tribunal was not satisfied that the Applicant had been assessed during the last three years by a relevant assessing authority as suitable for the Nominated Occupation. The Tribunal noted that the relevant assessing authority was Trades Recognition Australia (TRA). The Applicant applied for a skills assessment to TRA on 30 May 2019. The Applicant indicated to the Tribunal that the COVID-19 pandemic impacted upon his ability to obtain an assessment. However, the Tribunal found that the Applicant had 10 months to secure the required skills assessment, and that he failed to do so. The Applicant provided evidence that his skills had not been assessed by TRA for the Nominated Occupation. The Tribunal found that the Applicant failed to meet cl 485.224(1) of the Regulations.
On the basis of the evidence before the Tribunal, it was found that the Applicant failed to demonstrate how his Diploma was directly transferable to the Nominated Occupation.
PROCEEDINGS IN THIS COURT
On 10 November 2020, the Application was filed in this Court, within 35 days of the date of the Tribunal’s Decision pursuant to s 477 of the Migration Act.
On 16 June 2021, Orders were made by Registrar Carney of this Court for the First Respondent to file and serve the Court Book and any written submissions. For the Applicant to file and serve any amended application and written submissions.
On 21 July 2025, Orders were made by me for Order 2 of the Orders made by Registrar Carney on 16 June 2021 be set aside. For the Applicant to file and serve by 31 July 2025 any amended application, written submissions and further evidence. For the First Respondent to file and serve by 14 August 2025 any amended application, written submissions and further evidence.
On 31 July 2025, an Amended Application was filed in this Court.
This matter was heard on 18 August 2025 for a Final Hearing before me.
The Applicant relied upon the following documents:
(a)The Application filed 10 November 2020;
(b)The Affidavit of the Applicant unsworn and filed 10 November 2020 (Applicant’s Affidavit);
(c)Amended Application filed 31 July 2025;
(d)Outline of Submissions filed 31 July 2025; and
(e)Affidavit of Tao Jiang affirmed on 29 July 2025, filed 31 July 2025.
The Minister relied upon:
(a)The Response, filed 18 January 2021; and
(b)The Minister’s Outline of Submissions filed 14 August 2025.
On 15 August 2025, the parties filed a joint List of Authorities.
Both parties relied on the Court Book.
The Amended Application contains the following ground of review (Ground of Review):
1. The Tribunal erred in its assessment of whether the applicant’s Australian study is “closely related” to his nominated skilled occupation of a painting trades workers for the purposes of cl 485.222 of Migration Regulations 1994 (Cth) (Regulations).
Particulars
a. Tribunal erroneously confined its analysis to a narrow comparison between the applicant’s Australian studies and the prescribed tasks of a painting trades worker – ANZSCO code 332211.
b. The Tribunal should have considered other potentially relevant tasks described in the applicable ANZSCO hierarchy and groupings, including the sub-major group: construction trade workers.
(Words in bold added otherwise as written).
APPLICANT’S SUBMISSIONS
The Applicant submits that the Tribunal fell into jurisdiction error and confined its analysis only to the ANZSCO Unit Group 3322 Painting Trades Workers.
Legislative context
The Applicant submits that he satisfied the ‘Australian study requirement’ in the period of 6 months immediately before the day the application was made as per cl 485.221 and each trade qualification satisfied the Australian study requirement as required by cl 485.222.
The Applicant contends that he possessed a valid provisional skills assessment for the purposes of cl 485.224(1) and the Tribunal was satisfied that the Applicant met the ‘Australian study requirement’ in the period of six months immediately before the day the application was made.
Jurisdictional error
The Applicant contends that the Tribunal fell into a similar error as found in Talha v MIBP [2015] 235 FCR 100 (Talha) and Bhaskar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 320 (Bhaskar).
Before the Tribunal, the Applicant’s Representative made written submissions that the Applicant’s nominated skills profession is part of the construction industry and provided a copy of the syllabus of the Diploma and the Certificate III cover “common skills for the construction industry”.
At the Tribunal hearing, the Applicant submitted that he explained that the Diploma improved his personal efficiency capabilities; these being inseparable to a painting trades worker. The Applicant also gave evidence before the Tribunal of his knowledge of some occupational health and safety obligations, as well as knowledge of working at heights.
The Tribunal was not satisfied based on the evidence that the Diploma was closely related to the Nominated Occupation of Painting Trades Worker – ANZSCO Code 332211. The Tribunal noted that:
(a)The Applicant failed to provide adequate examples of how each subject in the course has been applied within the worksite;
(b)While there was some explanation from the Applicant about independence from direct instruction from the foreman after completing the course, the evidence presented did not satisfy the test of a causal link; and
(c)The Applicant did not provide sufficient evidence of how management-based subjects within the Diploma relate to the performance of the trade skill.
The Applicant submits that the Tribunal erred in its decision by confining its analysis only to the ANZSCO Unit Group 3322 Painting Trades Workers and failed to consider higher groups within the ANZSCO Code including the Sub-major Group Construction Trades Workers. This includes potentially relevant tasks which may bear upon the assessment of whether the Australian study completed by the Applicant is closely related to the nominated skilled occupation.
The Applicant further submits that the Tribunal adopted an unduly narrow lens when examining the Applicant’s occupation to the whole of his Australian studies. The Applicant contends that the Tribunal’s Decision fell into jurisdiction error of the same kind identified by the Full Court in Talha.
The Applicant’s counsel expanded upon these points in oral submissions, emphasising that what was required was comparison by the Tribunal of the whole of the qualification to the whole of the occupation as held by the Full Court in Talha. She contended that the Tribunal’s Decision did not evidence any intellectual engagement with the task of comparing the whole of the Applicant’s Australian studies with the whole of the tasks comprising the Applicant’s occupation. She pointed out that there was no reference in the Tribunal’s Decision to the major and minor groupings, and that the comparison that the Tribunal undertook at [33] was between the Applicant’s course of study and what he did on the job, rather than his occupation.
RESPONDENT’S SUBMISSIONS
The Minister submits that the Ground of Review fails to demonstrate any jurisdictional error in the Tribunal’s Decision and that the Application should be dismissed.
Ground of Review
The Minister submits that the question of whether a qualification is closely related to a nomination occupation is one for a primary decision-maker to consider, or the Tribunal on review.[15]
[15] Talha v Minister for Immigration and Border Protection [2015] 235 FCR 100 at [53].
The Minister notes the Tribunal considered the Applicant’s full scope of Diploma coursework and undertook a detailed comparison of his qualifications with respect to the whole of his occupation. The Minister contends the Tribunal plainly had regard to the Nominated Occupation and compared the Applicant’s qualifications accordingly.
The Minister submits that further analysis of individual subjects was not required in circumstances where the “whole of the qualification” compared to the “whole of the occupation” indicated that the test of a “close relationship” would not be satisfied.[16]
[16] Constantino v Minister for Immigration and Border Protection [2013] FCA 1301; (2013) 139 ALD 567 at [26]-[27]; Khan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 10.
The Minister notes the Tribunal on various occasions had regard to the evidence provided by the Applicant.[17] The Tribunal found that the Applicant’s Diploma was a course within the building and construction ANZSCO occupational grouping. The Applicant failed to satisfy how this Diploma closely related to the Nominated Occupation, being the position of Painting Trades Worker.[18]
[17] CB 116, 166-168 [9]-[21].
[18] CB 170 [34].
To the extent that the Tribunal did not refer to all groupings in the ANZSCO Code, the Minister submits it ought to be inferred that the absence of any consideration (which is neither apparent nor conceded) was because the Tribunal did not consider them to be material to the decision.[19]
[19] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at 346 at [69].
It was reasonably open for the Tribunal to find that the Diploma was not closely related to the Nominated Occupation.
The Minister submits that the Ground of Review merely expresses disagreement with the Tribunal’s Decision and otherwise seeks impermissible merits review.[20]
[20] Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6.
The Minister expanded on the written submissions by oral submissions made at the Hearing.
PRINCIPLES
General
Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[21]
[21] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (Plaintiff S157/2002).
“The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.” The court neither consider the merits of the decision nor remakes it.[22] The critical question is whether the decision maker has acted in breach of an express or implied condition of the decision-making authority which results conferred by statute such that the purported exercise of that authority lacks the legal force attributed to it by the statute.[23]
[22] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 per Allson CJ, Besanko and O’Callaghan JJ at [17].
[23] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 (LPDT) at [2].
The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[24] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include “misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness”.[25] Different kinds of error may overlap.[26] The categories are not closed.[27]
[24] Plaintiff S157/2002.
[25] LPDT at [3].
[26] Yusuf (2001) at [82].
[27] LPDT at [3].
In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a “realistic possibility” that the decision that was made “could” have been different, but for the error.[28] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[29] It has been described as an “undemanding” standard.[30]
[28] LPDT at [7].
[29] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].
[30] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ at [33].
Skilled (Provisional) Visa (Class VC) (Subclass 485)
Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations) has been satisfied, and to refuse to grant the visa, if not satisfied.
The Skilled (Provisional) Visa (Class VC) (Subclass 485) visa, post-vocational education work stream, is for international students who have recently graduated with an associate degree, diploma or trade qualification relevant to an occupation Australia needs and it allows them to live, study and work in Australia temporarily.
The criteria that the Applicant was required to satisfy for the grant of a Skilled (Provisional) Visa (Class VC) (Subclass 485) are set out in cl 485.1 to 485.612 in Schedule 2 of the Regulations.
CONSIDERATION
The sole Ground of Review is that:
The Tribunal erred in its assessment of whether the applicant’s Australian study is “closely related” to his nominated skilled occupation of a painting trades workers for the purposes of cl 485.222 of Migration Regulations 1994 (Cth) (Regulations).
For the purpose of the Temporary Graduate Visa (Subclass 485), clause 485.221 required that the Applicant satisfied the ‘Australian study requirement’ in the period of 6 months immediately before the day the Visa application was made.
Clause 485.22 sets out the criteria for the post-vocational education work stream.
Clause 485.222 provided that each degree, diploma or trade qualification used to satisfy the ‘Australian study requirement’ is closely related to the applicant’s nominated skilled occupation.
Regulation 1.15I of the Regulations provides:
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 occupation.
2. Without limiting subregulation (1), the Minister may specify in the instrument any matter in relation to an occupation, or to a class of persons to which the instrument relates, including:
a. that an occupation is a skilled occupation for a class of persons;
b. that an occupation is a skilled occupation for a person who is nominated by a State or Territory government agency.
The relevant Ministerial Instrument for the purposes of sub-regulation 1.15I is Legislative Instrument IMMI 16/059 (“IMMI 16/059”) by which the Minister has specified the Australian and New Zealand Standard Classification of Occupations (ANZSCO) Code.
The Department’s Procedures Advice Manual 3 (PAM3), provides for matters which delegates of the Minister and the Tribunal should take into account, if relevant, in deciding the question posed by cl 485.222. Item 3.7.2[31] of PAM3 includes the statement:
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 are directly transferable to the nominated occupation, in terms of both subject matter and the level of qualification at which those skills were obtained.
[31] The Tribunal Decision contains an apparently erroneous reference to Item 19.
In MIBP v Dhillon,[32] the Full Court of the Federal Court explained the phrase “closely related” as used in cl 485.222:[33]
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… to other potentially relevant tasks in the ANZSCO Code relating to the Major Group or the Minor Group under which the relevant occupation is found. The relevant error was described as the Tribunal having “regard to too narrow a description of the relevant tasks identified in the ANZSCO Code relating to the applicant’s nominated skilled occupation.
[32] [2014] FCAFC 157; (2014) 227 FCR 525.
[33] At [20].
In Talha, the Full Court explained the significance of the ANZCO Code and its hierarchical structure as follows:[34]
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.
[34] At [22].
The appellant in Talha submitted that the Tribunal ought to have taken into account not only the tasks enumerated specifically in relation to the ANZSCO occupation code “233914 Engineering Technologist”, but also the more general range of tasks described at the higher level category groupings relevant to that occupation of “Minor Group 233 Engineering Professionals” and “Unit Group 2339 Other Engineering Professionals”, which included managerial tasks in addition to technical skills.
The Full Court agreed with the appellant and found that the Tribunal “adopted an unduly narrow and legally erroneous approach to its task”[35] and made a jurisdictional error by confining its approach to the weighing up of the relevant applicant’s Australian studies against the tasks of the lower-level occupation only, and by not taking into account other potentially relevant tasks in the higher hierarchies and groupings of the ANZSCO Code.
[35] At [52]. See also Bhaskar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 320.
Returning to the present case, the “degree, diploma or trade qualification” used by the Applicant to satisfy the ‘Australian study requirement’ was the Diploma of Building and Construction (Management). The Applicant’s nominated skilled occupation was “Painting Trades Worker – ANZSCO: 332211”. Therefore, the critical question for the purpose of cl 485.222 was whether the skills underpinning the Diploma were “closely related to” the nominated skilled occupation of “Painting Trades Worker” having regard to potentially relevant tasks in both higher and low level groupings of the ANZSCO Code.
The Applicant contends that the Tribunal committed jurisdictional error by:
(a)Erroneously confining its analysis to a narrow comparison between the Applicant’s Australian studies and the prescribed tasks of a Painting Trades Worker – ANZSCO code 332211; or
(b)Failing to consider other potentially relevant tasks described in the applicable ANZSCO hierarchy and groupings, including the sub-major group: construction trade workers.
In short, the Applicant contends that that Tribunal made the same error identified in Talha.
An orthodox approach to the question of whether the Diploma is “closely related” to the nominated skilled occupation would start with the syllabus of the Diploma course and identification of the tasks relevant to “Painting Trades Worker” at all levels. The next step would involve a comparison between the whole of the skill set underpinning the syllabus and the whole of the relevant tasks by reference to the question of whether the skill set is directly transferrable to the Nominated Occupation, in terms of both subject matter and level of qualification at which those skills were obtained.[36]
[36] See PAM3 item 3.7.2.
The ANZSCO Code is divided into five “hierarchical levels”. They are:
(a)Major Group 3 Technical Trades Workers (level 5);
(b)Sub-Major Group 33 Construction Trades Workers (level 4);
(c)Minor Group 332 Floor Finishers and Painting Trades Workers (level 3);
(d)Unit Grouping 3322 Painting Trades Worker (level 2); and
(e)Occupation (332211 Painting Trades Worker) (level 1).
Major Group 3 Technical Trades Workers (level 5) provides:
TECHNICIANS AND TRADES WORKERS perform a variety of skilled tasks, applying broad or indepth technical, trade or industry specific knowledge, often in support of scientific, engineering, building and manufacturing activities.
Indicative Skill Level:
Most occupations in this major group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma, or at least three years of experience (ANZSCO Skill Level 2); or
AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV or at least three years of relevant experience (ANZSCO Skill Level 3)
…
In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
• carrying out tests and experiments, and providing technical support to Health Professionals
• Natural and Physical Science Professionals and Engineering Professionals
• providing technical support to users of computer hardware and software
• fabricating, repairing and maintaining metal, wood, glass and textile products
• repairing and maintaining motor vehicles, aircraft, marine craft and electrical and electronic machines and equipment
• constructing, repairing, fitting-out and finishing buildings and other structures
• operating printing and binding equipment
• preparing and cooking food
• shearing, caring for, training and grooming animals, and assisting Veterinarians
• propagating and cultivating plants, and establishing and maintaining turf surfaces for
• sporting events
• cutting and styling hair
• operating chemical, gas, petroleum and power generation equipment
• providing technical assistance for the production, recording and broadcasting of artistic performances
(Emphasis added)
Sub-Major Group 33 Construction Trades Workers (level 4) provides:
CONSTRUCTION TRADES WORKERS construct and repair buildings and other structures, apply final finishes such as plaster, painting and flooring, make and install glass products, and provide plumbing, drainage and mechanical services.
Indicative Skill Level:
Most occupations in this sub-major group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)
…
At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
• studying drawings and plans, and estimating quantities of materials required laying bricks and blocks, spreading mortar between joints, and removing excess mortar
• erecting frameworks, roof frames, roofs and walls
• laying flooring, carpets and tiles
• painting and wallpapering surfaces
• applying plaster and cement coatings to walls
• building and installing fittings
• making and installing glass products
• installing plumbing and drainage systems, guttering and other rainwater systems
• installing gas appliances and air conditioning piping and ducting
(Emphasis added)
Minor Group 332 Floor Finishers and Painting Trades Workers (level 3) provides:
Tasks Include:
• measuring areas to be covered and consulting plans to estimate quantities of floor covering materials required
• preparing surfaces by removing old floor coverings, paint and wallpaper, fixing woodwork, filling holes and cracks, smoothing and sealing surfaces, and removing baseboard trims
• measuring, cutting and fixing underlay materials
• laying underlay and covering materials on floors, matching patterns, cutting shapes around fixtures and trimming edges
• selecting and preparing paints to required colours by mixing portions of pigment, oil, thinning and drying additives
• applying paints, varnishes and stains to surfaces using brushes, rollers and sprays, and hanging wallpaper
(Emphasis added)
Unit Grouping 3322 Painting Trades Worker (level 2) provides:
Tasks Include:
• erecting scaffolding and ladders, and placing drop sheets to protect adjacent areas from paint splattering
• preparing surfaces by removing old paint and wallpaper, fixing woodwork, filling holes and cracks, and smoothing and sealing surfaces
• selecting and preparing paints to required colours by mixing portions of pigment, oil, and thinning and drying additives
• applying paints, varnishes and stains to surfaces using brushes, rollers and sprays
• hanging wallpaper, matching patterns and trimming edges
• cleaning equipment and work areas
• may repair windows and replace glass in wooden and metal frames
• may lay and repair wall and floor tiles
Occupation (332211 Painting Trades Worker) (level 1) provides:
Applies paint, varnish, wallpaper and other finishes to protect, maintain and decorate surfaces of buildings and structures. Registration or licensing may be required.
The evidence before the Tribunal of the skill set underpinning the Diploma included the Applicant’s statement of results which recorded the following:
Unit Code Description – Unit of Competency Result BSBCUS501 Manage quality customer service C BSBFIM501A Manage budgets and financial plans C BSBHRM402A Recruit, select and induct staff C BSBITU402 Develop and use complex spreadsheets C BSBITU404 Produce complex desktop published documents C BSBMGT515A Manage operational plan C BSBOHS504B Apply principles of OHS risk management C BSBRSK501 Manage risk C BSBSLS502 Lead and manage a sales team C BSBWOR501 Manage personal work priorities and professional development C BSBWOR502B Ensure team effectiveness C BSBWRT401 Write complex documents C
The Tribunal also had before it a copy of the syllabus of the Certificate III in Painting and Decorating and the Diploma, both of which set out an “Employability Skills Summary” comprising a list of “Employability skill[s]” and the corresponding “Industry/enterprise requirements for this occupation…”.[37] The Diploma “is designed to meet the needs of senior managers within building and construction firms”.[38]
[37] CB 106.
[38] CB 108.
The Tribunal’s central reasoning was that the Applicant had not provided “adequate evidence” to support the contention that the Diploma was “closely related to” the Nominated Occupation of Painting Trades Worker for the following reasons:[39]
a. The applicant predominantly asserted that the Diploma course provided him with knowledge, improved efficiency and capability without providing adequate and specific examples as to how each subject in the course has been applied within the worksite to achieve that outcome. As such, the applicant has not satisfied the Tribunal of the correlation between the content of the Diploma in Building and Construction (Management) course and the nominated occupation of painting trades worker, as being ‘closely related’;
b. The applicant made reference to planning and as having independence from direct instruction from the foreman after completing the course. Whilst this may be an important personal development, the evidence did not explain how the content of the course provided this outcome and how the Diploma in Building and Construction (Management) course was ‘closely related’; and
c. Whilst the subjects included in the Diploma of Building and Construction (Management) course may be construed, prima face, as including management based disciplines that are not ‘closely related’ to the trade skills of the nominated occupation of Painting Trades Worker, the applicant has not provided the Tribunal with sufficient evidence that helps identify, how these subjects within the Diploma course, relate to the performance of the trade skill. As such, there is a lack of depth in the evidence for the Tribunal to find how the practical and theoretical skills learned in the Diploma course are ‘closely related’ to the nominated occupation.
[39] CB 144-145 [33].
At paragraph [34], the Tribunal stated:[40]
In this context, the Tribunal finds that the Diploma of Building and Construction (Management), as a course acknowledged to be within the building and construction occupational grouping, within ANZSCO, that it is incumbent upon the applicant to demonstrate how the course is ‘closely related’ to the nominated occupation, which in this case has not been done.
[40] CB 145 [34].
The reasoning, particularly at [33c],[41] indicated that the Tribunal viewed the Diploma as focusing, as its name suggested, on management based disciplines. Despite that, The Tribunal indicated that it was open to evidence establishing a relevant connection. The Tribunal was not satisfied that the Diploma syllabus provided evidence of that connection.
[41] CB 144-145 [33c].
The Applicant contends that the Tribunal erred by failing to consider the connection between the skill set underpinning the Diploma and the “higher level” groupings in the ANZSCO Code.
It is true that the Tribunal Decision does not make that comparison in terms, but that does not necessarily mean that it did not occur. The following authorities explain the court’s approach when assessing whether a decision maker’s reasons reveal jurisdictional error.
In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, the Full Court of the Federal Court (Kenny, Griffiths and Mortimer JJ) stated:[42]
The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made ... Representing as it does what the Tribunal itself considered important and material, what is present – and what is absent – from the reasons may in a given case enable a Court on review to find jurisdictional error ...
... The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.
(Emphasis added)
[42] At [49]–[50].
In Minister for Immigration and Citizenship v SZRKT,[43] Robertson J held[44] that the question of whether a failure to consider evidence gives rise to jurisdictional error:
… is a case specific inquiry and it is not one which should be analysed by reference to fixed categories or formulas, to the effect that a decision within a category or formula is always or is never affected by jurisdictional error… the fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error.
(Emphasis added)
[43] [2013] FCA 317.
[44] At [77] and [111].
In Minister for Immigration and Multicultural Affairs v Yusuf,[45] McHugh, Gummow and Hayne JJ[46] held[47] that s 430 of the Migration Act obliged the Tribunal to set out findings on material questions of fact to the conclusion it reached. It does not require the Tribunal to make findings on any and every matter of fact objectively material to the decision which it was required to make.
[45] (2001) 2006 CLR 323.
[46] With whom Gleeson CJ agreed.
[47] At [69].
In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs,[48] French, Sackville and Hely JJ stated:[49]
It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
(Emphasis added)
[48] (2003) 75 ALR 630.
[49] At [46] and [47].
In ETA067 v The Republic of Nauru,[50] Bell, Keane and Gordon JJ stated that:[51]
The absence of an express reference to evidence in a tribunal's reasons does not necessarily mean that the evidence (or an issue raised by it) was not considered by that tribunal. That is especially so when regard is had to the content of the obligation to give reasons, which, here, included referring to the findings on any "material questions of fact" and setting out the evidence on which the findings are based. There was no obligation on the Tribunal to refer in its reasons to every piece of evidence presented to it.
Further, there is a distinction between an omission indicating that a tribunal did not consider evidence (or an issue raised by it) to be material to an applicant's claims, and an omission indicating that a tribunal failed to consider a matter that is material: including one that is an essential integer to an applicant's claim or that would be dispositive of the review.
(Footnotes omitted)
[50] (2018) 360 ALR 228.
[51] At [13] and [14].
In Jabari v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs,[52] the Court summarised the relevant principles:
A conclusion that the decision-maker ‘has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof’: Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [48] .
What is required is the reality of consideration by the decision-maker, the Court on judicial review being required to assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the relevant matter: Minister for Immigration & Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [45] (Rares and Robertson JJ).
The onus lies on the appellant to establish on the balance of probabilities that a relevant matter was not considered, taking into account that the reasons of the Tribunal must be read fairly and not in an unduly critical manner: Savaiinaea v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCAFC 56 at [73] (Collier, Perry and Anastassiou JJ).
Although the likely effect that any separation from Mr Jabari would have had on his children was a mandatory consideration because of Direction 90, not because it was among his representations, the representations nevertheless remain relevant. The requisite degree of consideration is affected by the centrality, to the issues, of the matter with which it is said the decision-maker did not engage, and the prominence the matter assumed in the representations: Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [37(1)] (Reeves, O’Callaghan and Thawley JJ). It is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46] . The fundamental question is the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error: Minister for Immigration & Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111] (Robertson J).
Whether or not a matter has been considered can be a matter of inference drawn from the reasons as a whole. For example, there may be material that is so obviously relevant that it is unthinkable that the Tribunal would not have referred to it if it had actually considered it: SZTMD v Minister for Immigration & Border Protection [2015] FCA 150 at [19] (Perram J). On the other hand, the inference that a failure to set out reasoning in relation to a matter signifies a failure to consider it should not be drawn too readily where the reasons are otherwise comprehensive and the issue has at least been identified at some point: Applicant WAEE at [47].
[52] (2023) 298 FCR 431.
Before returning to the facts of the present case, I note that in Talha the fact that the Tribunal had not taken into account the “higher level” groupings was “evident” from the terms of the Tribunal’s decision,[53] including reasons which denied the relevance of a general business management course even though the “higher level” groupings included management tasks.
[53] See esp. at [51].
By contrast, it is not “evident” that in reaching its conclusion in the present case that the Tribunal “only took into account the tasks performed by” a Painting Trades Worker as described in Unit Grouping 3322 Painting Trades Worker. Unlike Talha, the tasks set out in the “higher level” groupings (at levels 5, 4 and 3) that have relevance to the Nominated Occupation (Painting Trades Worker) appear to be broadly similar to the tasks within the lower level groupings (at levels 1 and 2), including the level 1 grouping: “Applies paint, varnish, wallpaper and other finishes to protect, maintain and decorate surfaces of buildings and structures”.
The tasks with apparent relevance from the “higher level” groupings are:
(a)“maintaining metal, wood, glass and textile products”;
(b)“finishing buildings and other structures”;
(c)“painting and wallpapering surfaces”;
(d)“preparing surfaces by removing old floor coverings, paint and wallpaper, fixing woodwork, filling holes and cracks, smoothing and sealing surfaces, and removing baseboard trims”;
(e)“studying drawings and plans, and estimating quantities of materials required”;
(f)“selecting and preparing paints to required colours by mixing portions of pigment, oil, thinning and drying additives”; and
(g)“applying paints, varnishes and stains to surfaces using brushes, rollers and sprays, and hanging wallpaper”.
To the extent that there are differences between the higher level task descriptions and the lower level ones, save for the instance referred to below, those differences are unlikely to have had any any material bearing on the exercise of comparison between the skill set underpinning the Diploma and the tasks comprising the Applicant’s occupation.
The Applicant also contended that the comparison that the Tribunal undertook[54] was between the Applicant’s course of study and what he did on the job, rather than his occupation. While that is true of the analysis at [33a] and [33b],[55] Tribunal’s focus on what the Applicant did in his job was a direct response to the submissions that were being made.
[54] CB 144-145 [33].
[55] CB 144-145 [33a]-[33b].
The Tribunal’s comment[56] indicated that it was considering “how these subjects relate to the performance of the trade skill” even though it considered prima facie that “management based disciplines” are not closely related to the Nominated Occupation. Again, this serves to distinguish the present case from Talha, where management disciplines were part of the “higher level” groupings that the Tribunal failed to consider.
[56] CB 144-145 [33c].
The correspondence between the tasks as described at a higher level (levels 5, 4 and 3) and those described at a lower level (levels 1 and 2) also bears upon the question of whether the court should infer that the Tribunal failed to have reference to the “higher level” tasks because of the absence of reference to them. In a case where the “higher level” tasks were substantially different than those at the lower level (for example, management), there would be more reason to expect an express reference to them. Here, there is no apparent substantial difference between most of the lower level tasks and the higher level ones.
The Applicant has singled out the learning outcome “analysing, evaluating and interpreting complex and technical documents, including drawings and plans, and preparing project expenditure schedules”, and contends that this has “self evident” relevance to the task of “the capacity to studying drawings and plans, and estimating quantities of materials required” (one of the tasks identified at Sub-Major Group 33 Construction Trades Workers). The question is whether, having regard to the principles set out above, the absence of reference to this learning outcome, or specific reference to other learning outcomes or tasks, means that the Tribunal ignored or overlooked them. While the Tribunal’s Decision at paragraphs [33] to [34][57] does not expressly address that question, those paragraphs indicate that the Tribunal’s analysis extended beyond the narrow compass of the tasks identified in the level 1 and 2 descriptions, which is some indication of the Tribunal was adopting a broader approach.
[57] CB 144-145 [33]-[34].
The Tribunal’s finding that “there is a lack of depth in the evidence for the Tribunal to find how the practical and theoretical skills learned in the Diploma course are “closely related” to the nominated occupation”[58] was one that was open to it on the material before it.
[58] CB 145 [33c].
On balance, and placing due regard to the limited apparent relevance of the learning outcomes referred to in the Diploma curriculum, I am not satisfied that the Tribunal had no regard to it when reaching its conclusion[59] that it was not satisfied that:
the applicant has demonstrated how the skill set underpinning the qualification is directly transferable to the nominated occupation of an ordinary painting trades worker and although they are skills that may be considered as complementary to fulfilling the role, they are not on the evidence presented, something that underpins the role of a painting trades worker.
[59] CB 147 [44].
Some support for the conclusion that the Tribunal had regard to the whole of the Nominated Occupation can be drawn from the statement in the Tribunal’s Decision that it was “guided by the decision” [60] in Talha at [53], where the Full Court expressly addresses the requirement that the Tribunal have regard to “higher level” tasks. The reference to Talha in the Tribunal’s Decision is evidence that its approach was informed by that decision, even though the Tribunal did not set out the whole of the analysis referred to by the Full Court in that case.
[60] CB 146 [41].
Having regard to the whole of the Tribunal’s Decision, the apparent similarity between the “higher level” tasks and the “lower level” tasks, and the reference to Talha, I am not satisfied that the Tribunal fell into jurisdictional error by erroneously confining its analysis to a narrow comparison between the Applicant’s Australian studies and the prescribed tasks of a Painting Trades Worker – ANZSCO code 332211 or by failing to consider other potentially relevant tasks described in the applicable ANZSCO hierarchy and groupings, including the sub-major group: construction trade workers.
Finally, it is relevant to note that the ANZSCO Code that was submitted to the Tribunal by the Applicant and that is reproduced in the Court Book, was only a partial reproduction of the ANZSCO Code. It unhelpfully started at Unit Group 3322 Painting Trades Workers. The document did not include the “higher levels” (i.e. levels 5, 4 or 3), which the Applicant now claims were erroneously excluded from consideration.
Nevertheless, the ANZSCO Code has the force of a legislative instrument by the Minister’s specification of it pursuant to reg 1.15I of the Regulations. A complete copy of that instrument would not necessarily have been kept on the Tribunal’s file. I do not regard the absence of a complete copy in the Court Book (and inferentially Tribunal file) as supporting the contention that the Tribunal failed to have regard to the whole of the ANZSCO Code.
I am not satisfied that jurisdictional error is made out by reference to the sole Ground of Review.
CONCLUSION
As the Applicant has not established that the Tribunal made a jurisdictional error the Application must be dismissed. It is also appropriate to correct the name of the Minister and the Tribunal to reflect the current designations.
Costs
At the end of each party’s submissions, I invited them to make submissions as to costs in the event that the Application succeeded or was dismissed. In the event that the Application was dismissed, the Minister sought costs in the sum of $8,371.30 being the scale amount.[61] I am satisfied that costs ought to follow the event,[62] and that it is appropriate to make an Order in that amount having regard to the scale and the extent of work undertaken as evidenced by the Court file.[63]
[61] See Division 1 of Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Compare Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 129.
[62] Compare Oshlack v Richmond River Council (1998) 193 CLR 72.
[63] Compare Gehlert v Minister for Immigration and Multicultural Affairs (2024) 305 FCR 172.
I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary. Associate:
Dated: 28 August 2025
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