Andarage (Migration)

[2020] AATA 4107

Andarage (Migration) [2020] AATA 4107 (10 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kasun Umayanga Silva Andarage
Mrs Sachini Pavithra Gangabada Arachchige

CASE NUMBER:  1808215

HOME AFFAIRS REFERENCE(S):          BCC2018/215579

MEMBER:Kira Raif

DATE:10 September 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 10 September 2020 at 10:08am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – subclass 485 – Graduate Work stream – Australian study requirement – Fitter (General) (ANZSCO 33211) – Diploma of Human Resources Management – qualification not closely related to occupation – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, cl 485.222

CASES
Chawdhury v MIAC [2010] FMCA 275
Kabir v MIAC [2010] FMCA 577
Manik v MIAC [2012] FMCA 149
Talha v MIBP [2015] FCAFC 115
Shafiuzzaman v MIAC [2011] FMCA 874

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 March 2018 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are nationals of Sri Lanka. The first named applicant (‘the applicant’) was born in January 1988. The applicants applied for the visas on 14 January 2018. The delegate refused to grant the visas because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied each of the qualifications used to satisfy the Australian study requirement was closely related to the nominated occupation. The applicants seek review of the delegate’s decision.

3. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

4. The applicants appeared before the Tribunal on 2 September 2020 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. Visa Class VC contains Subclass 485. The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

6. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.221 and 485.222 of Schedule 2 to the Regulations. These require that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made (cl.485.221); and secondly, that each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl.485.222). The issue in the present case is whether the applicant meets those requirements.

   Is the qualification ‘closely related’ to the nominated occupation?

7. The applicants provided to the Tribunal a copy of the primary decision record. The applicant indicated on the application form that he completed the following study in Australia.

   03/17 - 11/17       Diploma of Human Resources Management

   05/16 - 02/17       Cert IV in Human Resources

   06/15 - 05/16       Advanced Diploma of Management

   02/14 - 08/14       Diploma of Management

   01/09 – 07/12      Diploma of Engineering Technology

   07/09 - 12/13       Certificate III in Engineering Mechanical Trade

   01/09 - 07/12       Diploma of Engineering Technology

8. The applicant had nominated the occupation of Fitter (General) (ANZSCO 33211) in his application.

9. The application for the visa was made in January 2018. The only qualification the applicant completed in the 6 months before the application was made is the Diploma of Human Resources Management. The Tribunal finds that the applicant relied on that qualification to meet the Australian study requirement. The Tribunal must be satisfied that the Diploma of Human Resources Management is closely related to the occupation of Fitter (General).

10. In his written submission to the Tribunal of 11 August 2020 the applicant states that his father operates a mechanical workshop and a grinding mill which has a high demand for workers but he cannot expand the business without the assistance of the applicant. The applicant provided to the Tribunal evidence relating to his father’s business. The Tribunal finds that evidence problematic, given that the father has been able to successfully operate the business in the past and, on the applicant’s own evidence, that  business had been operating successfully and the father was able to employ staff in the past. Nevertheless, even if the applicant’s evidence is accepted, the Tribunal does not consider the applicant’s desire to work in his father’s business, and the business needs of his father, to be helpful. The Tribunal must consider the objective standards for the occupation and not the work the applicant believes he will perform in the future.

11. In oral evidence the applicant also stated that his father manages a mechanical workshop in his hometown and he is the only child. He wanted to become a fitter to run his father’s business and in order to succeed in his father’s business, he did the Diploma of Human Resources. The applicant explained that human resources would help him manage, develop and expand a successful business. The applicant also referred to safety and risk assessment, particularly relevant to team operations. The applicant told the Tribunal that he has followed the advice of his supervisor who performs a variety of tasks and not only technical tasks and who recommended for him to do different courses. The applicant states that because of his qualifications, he is given different jobs and he has the confidence of dealing with customers. The Tribunal acknowledges that the applicant, or his manager, may be performing a variety of tasks in his present job but as noted above, the Tribunal must consider the objective standards for the occupation and not the applicant’s specific employment. Similarly, in his post-hearing submission to the Tribunal of 8 September 2020 the applicant outlined the nature of his present employment and provided an explanation of how his past study assists him in his present employment. There is also a declaration from the applicant’s employer relating to the nature of the work. Mr Nichol states that the human resources functions are ‘an intrinsic part for carrying out a successful job’. The Tribunal accepts that the applicant and his present employer may find the knowledge acquired by the applicant from past study useful but the applicant’s present employment may not necessarily reflect the objective standards for the occupation.

12. A number of authorities confirm that the decision maker is entitled to give substantial weight to the contents of the ANZSCO descriptions (see Manik v MIAC [2012] FMCA 149 and Talha v MIBP [2015] FCAFC 115, which suggests that the nature of the nominated occupation must be determined by reference to ANZSCO). It is necessary for the Tribunal to objectively consider the relationship of the applicant’s qualification to the ANZSCO definition of the occupation rather than relying on the applicant’s own description of what the occupation entails or what he believes he will do in his occupation in the future, by working in his father’s business or otherwise (see Chawdhury v MIAC [2010] FMCA 275 at [12], Kabir v MIAC [2010] FMCA 577 at [70], Shafiuzzaman v MIAC [2011] FMCA 874 at [48]–[67]).

13. ANZSCO provides the following description with respect to the nominated occupation:

    UNIT GROUP 3232 METAL FITTERS AND MACHINISTS
    
    METAL FITTERS AND MACHINISTS fit and assemble fabricated metal parts into products, set up machining tools, production machines and textile machines, and operate machining tools and machines to shape metal stock and castings.

    Tasks Include:

    ·studying drawings and specifications to determine suitable material, method and sequence of operations, and machine settings

    ·fitting fabricated metal parts into products and assembling metal parts and subassemblies to produce machines and equipment

    ·checking fabricated and assembled metal parts for accuracy, clearance and fit using precision measuring instruments

    ·setting guides, stops and other controls on machining tools, setting up prescribed cutting and shaping tools and dies in machines and presses, and setting controls for textile machines

    ·forming metal stock and castings to fine tolerances using machining tools to press, cut, grind, plane, bore and drill metal

    ·cutting, threading, bending and installing hydraulic and pneumatic pipes and lines

    ·preparing pattern mechanisms to control the operation of textile machines used to spin, weave, knit, sew and tuft fabric

    ·diagnosing faults and performing operational maintenance of machines, and overhauling and repairing mechanical parts and fluid power equipment

    ·may erect machines and equipment on-site

    
    Occupations:
    323211 Fitter (General)
    
    
    323211 FITTER (GENERAL)
    
    Fits and assembles metal parts and subassemblies to fabricate production machines and other equipment.

14. In the Tribunal’s view, and contrary to the submission from the applicant and his employer, human resources management does not form any part of the nominated occupation, either by reference to the skill set or by reference to the tasks performed.

15. The applicant claims that health and safety are paramount in his occupation and he has studied how to minimise labour injuries and training in the mechanical courses. The applicant states that the mechanical course taught him how to create parts and the human resources course teaches him how to deliver the parts safely to the society and he could not learn those skills in the mechanical courses. The Tribunal acknowledges that fitters must be aware of health and safety requirements, as the applicant claims, and the Tribunal is prepared to accept that the applicant has learned health and safety as part of his Diploma. However, such a link is nothing more than a link between one aspect of the occupation with one aspect of the course. The close relationship must exist between the course as a whole and the occupation as a whole and not selective areas of one and the other. Any helpfulness of one area of the qualification to one area to the occupation does not establish the close relationship between the two.

16. The applicant states in his written submission to the Tribunal that after studying in Australia, he was exposed to various courses and he took courses first to qualify in mechanics and then management in order to fulfil his plan to take over his father’s business. The Tribunal accepts that the applicant may wish to run a business in the future. The applicant refers to the Departmental policy and states that a person who holds a mechanical qualification and wants to start his own business would require an HR qualification. However, the assessment required by the legislation relates to the occupation nominated by the applicant – that of a fitter– and not an occupation in which the applicant may wish to engage in the future. As Smith FM stated in Pasula at [23]:

    … the relevance of a qualification for the purposes of Sch.2 cl.880.215 of the regulations 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. If PAM3 suggested otherwise, then it would be giving advice flawed by error of law.

17. In the Tribunal’s view, if the applicant decides to run his own business in the future, or manage his father’s business, his occupation may be that of a business owner, supervisor or manager and not that of a fitter. To the extent that the Departmental policy suggests otherwise, the Tribunal is of the view that such a policy is not consistent with the requirements of the legislation.

18. The applicant sets out the work performed by human resources practitioners and states that in his work in the mechanical field, he will need to have an understanding of how “HR side work”, minimise injuries and create a healthy environment for workers. The applicant states that he would need to go through labour related issues as his father has no knowledge of such matters and that would help him expand and improve his father’s business. As noted above, the Tribunal does not consider that such responsibilities form part of the work of a fitter and it is the objective criteria for the occupation, rather than the applicant’s own expectations, that are relevant here. 

19. The applicant states that in a small business, he would be required to manage the business and manage staff and do other tasks and in a small business like his father’s, they cannot hire different professionals to do other sides of business operations. The applicant gave an example of his current employment where the technical officer must also perform other tasks within a small business and he claims that to expand the business he will need to carry out different tasks and not only the technical tasks. The applicant’s arguments are based, essentially, on the operations of a small business. However, the Tribunal does not consider that its consideration can be so limited to a particular type of operations. The applicant’s expectations and circumstances may be different to the expectations and circumstances and job description of a person working in a different environment. The law must be applied consistently irrespective of the applicant’s personal circumstances or the nature of his particular employment, so that the occupation of a fitter working in a small business cannot be different to the occupation of a fitter working in a large company that is able to employ different professionals. By applying the objective description of the occupation, such as that set out in ANZSCO, the legislative requirements will apply consistently irrespective of one’s working environment.

20. The Tribunal accepts that small businesses may have certain limitations however, as noted above, the Tribunal must consider the objective standards for the occupation. If the applicant performs other tasks in the business, such as accounting, marketing, human resource management or management in general, these may incorporate different occupations and not the occupation of a fitter. If the applicant performs human resource management in a small business, that would relate to the occupation of a human resource consultant. If the applicant performs marketing responsibilities in a small business, that may involve the occupation of a marketing manager. These are not the tasks performed by a fitter. While the Tribunal acknowledges the applicant’s evidence that a small business may not have the opportunity to hire different professionals and business owners require to be multi-skilled, this is not what the objective standards for the occupation are.

21. The applicant told the Tribunal that departmental policy allows hairdressers to complete a management course which is considered to be closely related. It is not clear how any link between a management course and the occupation of a hairdresser (and the Tribunal is not convinced that a close relationship exists between the two) helps the applicant in establishing the close relationship between the occupation of a fitter and a human resources management qualification. The applicant compares entirely different occupations and courses and the Tribunal does not consider such comparisons to be valid. The Tribunal must consider the applicant’s own qualifications and the nominated occupation and not a hypothetical situation with very limited link to the applicant’s situation.

22. Having considered the entirety of the applicant’s claims, the Tribunal is not satisfied that the Diploma of Human Resources Management is closely related to the occupation of a Fitter. The Tribunal is not satisfied the applicant meets cl. 485.222 and the second named applicant does not meet the secondary criteria for visa grant. There is no evidence that the second named applicant meets the primary criteria for the grant of the visa. In particular, there is no evidence that she has nominated a skilled occupation or had obtained the relevant skills assessment. The Tribunal is not satisfied the secondary applicant meets the primary criteria for the grant of the visa.

    Conclusion

23. On the basis of the above findings, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

24. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

    Kira Raif
    Senior Member