Setiya v MICMSMA

Jarrett J of the Federal Court of Australia considered an application by Mr Setiya, a citizen of India, for a subclass 485 visa in the Graduate Work stream. Mr Setiya had applied for the visa on the basis of his employment as a "Chef". The primary criteria for the grant of this visa, as set out in clause 485.221 and 485.222 of the Migration Regulations, required the applicant to have satisfied the Australian study requirement in the six months prior to his application, and for each qualification used to satisfy this requirement to be closely related to his nominated skilled occupation.

The legal issues before the Court were whether Mr Setiya had satisfied the Australian study requirement and whether his qualifications were closely related to his nominated occupation as a Chef. Mr Setiya had provided several qualifications, including a Certificate IV in Commercial Cookery, and had also completed a Diploma of Hospitality Management after his visa application and the initial delegate's decision, but before the second respondent's decision. The definition of the Australian study requirement in regulation 1.15F stipulated that a person must have completed one or more registered degrees, diplomas, or trade qualifications from an Australian educational institution, completed over at least 16 calendar months and involving at least two academic years of study, with all instruction in English, undertaken while holding a visa authorising study in Australia.

Jarrett J reasoned that the second respondent's finding that Mr Setiya did not meet the criteria for the grant of the visa was plainly open to it on the evidence. The Court noted that the Diploma of Hospitality Management was completed after the visa application and the delegate's decision, and that Mr Setiya had not relied on this qualification. The Court found that the applicant's arguments did not add to previous grounds and did not reveal jurisdictional error.

Consequently, the application was dismissed, and Mr Setiya was ordered to pay the first respondent's costs in a fixed amount.