Attuquaye (Migration)

[2021] AATA 1116

Attuquaye (Migration) [2021] AATA 1116 (25 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ethel Naa Kordey Attuquaye

CASE NUMBER:  1818349

HOME AFFAIRS REFERENCE(S):          BCC2018/1595992

MEMBER:Antonio Dronjic

DATE:25 February 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 25 February 2021 at 3:16pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Graduate Work) – occupation of Child Care Centre Manager – Australian study requirement – two academic years of relevant study – qualification closely related to the nominated skilled occupation – Certificate III course not a requirement for position or skills assessment – decision under review affirmed 

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.221, 485.222; r 1.15

CASES

Chawdhury v MIAC [2010] FMCA 275
Constantino v MIBP [2013] FCA 1301
Kabir v MIAC [2010] FMCA 577
MIBP v Dhillon 2014) 227 FCR 525
Shafiuzzaman v MIAC [2011] FMCA 874
Talha v Minister for Immigration and Border Protection [2015] FCAFC 115
Uddin v MIAC [2010] FCA 1281

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 4 June 2018 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 9 April 2018. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) 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).

3. The delegate refused to grant the visa because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the qualification used to satisfy the Australian study requirement, a Certificate III in Aged Care, is closely related to the applicant’s nominated occupation of Child Care Centre Manager ANZSCO Code: 134111.

4. The applicant sought review of the delegate’s decision on 22 June 2018 and with her application submitted:

   ·A copy of the primary decision record; and

   ·A copy of the provisional skills assessment issued by the Trades Recognition Australia (TRA) on 26 May 2018 as evidence of the applicant’s successful skills assessment for the occupation of Child Care Centre Manager - 134111.

5. On 4 February 2021, the Tribunal wrote to the applicant advising her that it had considered the material before it and was unable to make a favourable decision on this material alone and invited the applicant to attend a video hearing on 25 February 2021.

6. On 23 February 2021, the applicant’s representative provided submissions and additional documentary evidence. The list of documents is attached to this decision record and marked as Attachment A.

7. The applicant appeared before the Tribunal on 25 February 2021to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent.

8. The applicant is 28 years of age and citizen of Ghana. She first came to Australia as a holder of a Student visa in July 2015. She was granted another student visa on 6 June 2016 and that visa remained valid until 9 April 2018.

9. The applicant lodged her Subclass 485 Graduate Work stream visa on 9 April 2018 and nominated Child Care Centre Manager as her occupation.

10. In her evidence she confirmed that, prior to lodgement of a Subclass 485 visa, she completed the following courses in Australia:

    ·Diploma of Early Childhood Education and Care completed at Melbourne Polytechnic Pty Ltd between 11 July 2016 and 23 December 2017) with the registered course duration of 83 weeks; and

    ·Certificate III in Aged Care completed at Einstein College of Australia between 25 May 2015 and 19 February 2016 with the registered course duration of 39 weeks).

11. By December 2020, she has completed an Associate Degree of Early Years Studies. She is currently enrolled into Bachelor of Education (Early Years and Primary) at Melbourne Polytechnic and has paid the first instalment for this course.

12. The applicant is and has been working at Aspire Early Education and Kindergarten since November 2019 as a qualified childcare assistant. In January 2020, the applicant was offered a permanent part-time position. When asked by the Tribunal, the applicant stated that completion of a Certificate III in Aged Care was not a requirement for this position.

13. In her evidence, the applicant confirmed that on 26 May 2018, she obtained a provisional skills assessment from TRA for her nominated occupation of Child Care Centre Manager. She conceded that it was not necessary to submit evidence of completing a Certificate III in Aged Care with her provisional skills assessment application to TRA.

14. The Tribunal invited the applicant to explain why, in her opinion, is a Certificate III in Aged Care course closely related to his nominated occupation of a Child Care Centre Manager. She stated that she is unable to explain that. She gave evidence that her student visa was due to cease on 9 April 2018 and that at the time she was not in a financial position to apply for another student visa.

15. The Tribunal explained to the applicant that the Tribunal is required to objectively consider whether the qualifications themselves are ‘closely related’ to the nominated occupation having regard to 5 hierarchical levels of ANZSCO and whether the skill sets underpinning the qualifications are directly transferable to the nominated occupation, in terms of both subject matter and the level of qualification at which those skills were obtained.

16. The Tribunal discussed with the applicant tasks performed by Child Care Centre Manager at all ANZSCO hierarchical levels. The Tribunal noted that the applicant submitted a copy of her academic transcripts listing subjects completed for the award of Certificate III in Aged Care and expressed its concerns as to whether any skill sets underpinning the qualifications are directly transferable to the nominated occupation.

17. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. 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 cl.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 before 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.

    Does the applicant meet the Australian study requirement?

19. Under r.1.15F(1) of the Regulations, a person satisfies the ‘Australian study requirement’ if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:

    ·that are registered courses; and

    ·that were completed in a total of at least 16 calendar months; and

    ·that were completed as a result of a total of at least 2 academic years study; and

    ·for which all instruction was conducted in English; and

    ·that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.

20. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see rr.1.03, 1.15F and 2.26AC(6), and cl.485.111). ‘Completed’, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award (r.1.15F(2)). For the purposes of this case, one ‘academic year’ is at least a total of 46 weeks, being the duration of a course registered under the Education Services for Overseas Students Act 2000.

21. The applicant is seeking to rely on Diploma of Early Childhood Education and Care, which was completed on 23 December 2017, to meet the Australian study requirement. That is a course that she completed in the 6 months before the visa application was made on 9 April 2018.

22. The CRICOS website confirms that the Diploma of Early Childhood Education and Care the applicant completed at Melbourne Polytechnic was registered for 83 weeks and all instruction was in English.

23. As the requirement for a Subclass 485 visa is that the applicant must have completed at least 2 academic years of study – that is, at least 92 weeks of study consistent with the relevant instrument – the Tribunal finds that, relying on her Diploma of Early Childhood Education and Care alone, the applicant does not satisfy the ‘Australian study requirement’ in the 6 months immediately preceding the day her Subclass 485 visa application was made on 9 April 2018 as required by cl.485.221 of Schedule 2 to the Regulations.

24. The applicant has also provided evidence of completing a Certificate III in Aged Care from 25 May 2015 to 19 February 2016. The ‘Australian study requirement’ does not require visa applicants to have completed a single course of study of 2 academic years’ duration. Accordingly, it is necessary to consider whether the applicant can rely on all the courses she completed in Australia to meet the ‘Australian study requirement’.

25. The CRICOS website confirms that the Certificate III in Aged Care was registered for 39 weeks and all instruction was in English. Accordingly, the Tribunal finds that the registered courses undertaken by the applicant have a total registered duration in excess of 92 weeks and were completed in a total of at least 16 calendar months.

26. Departmental records confirm that during the period 25 May 2015 (when the applicant commenced Certificate III in Aged Care course) and 23 December 2017 (when she completed Diploma of Early Childhood Education and Care) she was in Australia as the holder of Student visas authorising her to study in Australia.

27. Based on the evidence outlined above, the Tribunal finds that the applicant satisfies the ‘Australian study requirement’ in the 6 months immediately preceding the date of her Subclass 485 visa application. Therefore, he meets cl.485.221 of Schedule 2 to the Regulations.

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

28. In addition, cl.485.222 requires each qualification used to satisfy that requirement is closely related to the applicant’s nominated skilled occupation. An occupation is a ‘skilled occupation’ if: it is specified by the Minister as a skilled occupation; and, if a number of points are specified in the instrument as being available — for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation (rr.1.03 and 1.15I).

29. The applicant nominated the skilled occupation of Child Care Centre Manager which is a skilled occupation specified in the relevant legislative instrument. The issue is whether each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated occupation.

30. The term ‘closely related’ is not defined in the Regulations. However, the term has been considered by the Full Federal Court of Australia in the decisions of MIBP v Dhillon[1] and Talha v MIBP[2] as well as the Federal Court of Australia in its decision in Constantino v MIBP.[3] Accordingly, the Tribunal has been guided by these cases in its consideration of the issue presented in the applicant’s case.

    [1] (2014) 227 FCR 525.

    [2] [2015] FCAFC 115, Griffiths, Mortimer and Beach JJ.

    [3] [2013] FCA 1301, Jacobson J.

31. The leading authorities on the issue of whether a qualification used to satisfy the Australian study requirement is ‘closely related’ to the applicant’s nominated skilled occupation establish that:

    ·While the words ‘closely related’ are not defined in legislation they do require and call attention to the connection between 2 things. And, although the words ‘closely related’ do not require an exact correspondence,[4] the relationship must be more than merely complementary.[5]

    ·In making the assessment, the nature of the nominated occupation must be determined by reference to the Australian and New Zealand Standard Classification of Occupations (ANZSCO) and, further, ANZSCO needs to be read as a whole with a view to identifying and applying information which is relevant to an understanding of the whole of the nominated occupation (emphasis added).[6]

    ·It is appropriate to objectively consider the relationship of the applicant’s qualification (or, in this case, qualifications) to the ANZSCO definition of the occupation rather than relying on the applicant’s own description of what the occupation entails, or the applicant’s own view of the proximity of the qualifications to the nominated occupation.[7]

    [4] MIBP v Dhillon (2014) 227 FCR 525 at [20]. See also Constantino v MIBP [2013] FCA 1301, Jacobson J at [33] quoting with approval Prasad v MIAC [2012] FCA 591, Logan J at [33].

    [5] Uddin v MIAC [2010] FCA 1281, North J at [10]–[12]; Constantino v MIBP [2013] FCA 1301, Jacobson J; and, MIBP v Dhillon (2014) 227 FCR 525, Griffiths, Mortimer and Beach JJ at [20].

    [6] Talha v MIBP [2015] FCAFC 115, Griffiths, Mortimer and Beach JJ at [56].

    [7] Chawdhury v MIAC [2010] FMCA 275, Raphael FM at [12]. See also Kabir v MIAC [2010] FMCA 577, Scarlett FM at [70], Shafiuzzaman v MIAC [2011] FMCA 874, Nicholls FM at [48]–[67] where the Court held that the Tribunal was correct in applying an objective test instead of a subjective test by the applicant that the term ‘closely related’ should be read as ‘complementary’ or ‘useful’ to the nominated occupation.

32. It is ultimately a matter for the decision-maker (that is, the Tribunal) to decide whether an applicant’s Australian qualifications are ‘closely related’ to the nominated skilled occupation[8] and, in carrying out the evaluative exercise, it is critical that the whole of the Australian studies be compared with the whole of the nominated occupation.[9]

    [8] Talha v MIBP [2015] FCAFC 115, Griffiths, Mortimer and Beach JJ, at [53].

    [9] Ibid at [53] endorsing MIBP v Dhillon (2014) 227 FCR 525 at [20] and Constantino v MIBP [2013] FCA 1301, Jacobson J at [26].

33. The Full Federal Court’s decision in Talha v MIBP referred to above notes that ANZSCO comprises a system of 5 hierarchies for classifying occupations. At the lowest level of this hierarchy, ANZSCO has a list of ‘Occupations’. The next level of hierarchy is known as a ‘Unit Group’. The next step up the ladder of the ANZSCO hierarchy is known as a ‘Minor Group’. Minor Groups are then aggregated to form ‘Sub-Major Groups’ which, in turn, step up and are aggregated at the highest level to form ‘Major Groups’.

34. The Tribunal accepts that the Diploma of Early Childhood Education and Care the applicant completed on 23 December 2017 is qualification ‘closely related’ to the nominated skilled occupation.

35. In considering whether the applicant’s Certificate III in Aged Care is closely related to her nominated skilled occupation of Child Care Centre Manager, the Tribunal had regard to hierarchies and groupings in ANZSCO of which the occupation forms part. The Tribunal also considered subjects completed by the applicant during her study for the Certificate III in Aged Care course. The Tribunal discussed this issue with the applicant at the hearing.

36. The applicant’s nominated occupation forms part of a broader Unit Group 1341. The only occupation listed in this Unit Group is Child Care Centre Manager (ANZSCO 134111). Full details in relation to Unit Group 1341 are extracted in Attachment B to this decision. The ANZSCO description for Unit Group 1341 states that tasks of Child Care Centre Manager include:

    ·     formulating policies and plans for the operation of childcare, health, welfare and educational establishments, and setting standards and objectives

    ·     developing and implementing programs and services to meet the needs of clients

    ·     directing and coordinating the allocation of resources

    ·     liaising with parents, boards, funding bodies, the community and educational institutions to discuss areas of cooperation and coordination

    ·     directing administrative operations such as budget planning, report preparation, monitoring and controlling expenditure, and student admissions

    ·     selecting, developing and managing the performance of staff

    ·     preparing, or arranging for the preparation of, reports, budgets and forecasts

    ·     representing the organisation in negotiations, and at conventions, seminars, public hearings and forums

37. Having identified information in ANZSCO in relation to the occupation of Child Care Centre Manager, the Tribunal has considered the applicant’s studies in the Certificate III in Aged Care.

38. According to the academic transcript for her Certificate III in Aged Care provided by the applicant, the subjects undertaken were:

    ·     Support older people to maintain their independence

    ·     Work effectively with older people

    ·     Provide support to people living with dementia

    ·     Work within a relevant legal and ethical framework

    ·     Work effectively in the community sector

    ·     Provide support and care relating to loss and grief

    ·     Provide support to meet personal care needs

    ·     Participate in the implementation of individualised plans

    ·     Support individual health and emotional well being

    ·     Deliver care services using a palliative approach

    ·     Follow WHS safety procedures for direct are work

    ·     Provides First Aid

    ·     Recognise healthy body systems in a health care context

    ·     Assist with client movement

39. Based on the evidence before it, the Tribunal is not satisfied that subjects completed by the applicant during her study for the Certificate III in Aged Care are closely related to the above listed tasks in Unit Group 1341 or any of the other ANZSCO hierarchies tasks related to this occupation.

40. The Tribunal has considered the evidence provided, including the documentary evidence, submissions and the oral evidence given by the applicant at the hearing.

41. The Tribunal considered all 5 ANZSCO hierarchies for classifying occupations and tasks enlisted under each of these ANZSCO hierarchies. The Tribunal considered the applicant’s academic transcript for the Certificate III in Aged Care and the subjects undertaken during study as well as compared the whole of the Australian studies with the whole of the nominated occupation. Having carefully considered all the evidence, the Tribunal does not accept that the applicant’s Certificate III in Aged Care is closely related to her nominated occupation of Child Care Centre Manager as claimed.

42. As the Tribunal has found that the applicant’s Certificate III in Aged Care qualification is not closely related to her nominated skilled occupation it follows that she does not meet cl.485.222 to the Regulations.

43. Based on 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

44. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Antonio Dronjic
    Member

    
    

    Attachment A – Document List

    ·Submission/cover letter from Marilyn Arcega-Lariosa (Solicitor, Arcega-Lariosa Migration Services)

    ·Testamur of Ethel Naa Kordey Attuquaye for the qualification ‘CHC30212 Certificate III in Aged Care’ from Einstein College of Australia (04/03/2016)

    ·Record of results of Ethel Naa Kordey Attuquaye for the qualification ‘CHC30212 Certificate III in Aged Care’ from Einstein College of Australia (04/03/2016)

    ·Letter from Melissa Smith (Program Lead – Education, School of Health and Education, Melbourne Polytechnic) (02/01/2018)

    ·Testamur of Ethel Naa Kordey Attuquaye for the qualification ‘Diploma of Early Childhood Education and Care CHC50113’ from Melbourne Polytechnic (15/12/2017)

    ·Statement of results of Ethel Naa Kordey Attuquaye for the qualification ‘CHC50113 Diploma of Early Childhood Education and Care’ from Melbourne Polytechnic

    ·Practical placement agreement between Ethel Attuquaye, Community Kids, and Melbourne Polytechnic (01/03/2017)

    ·Practical placement agreement between Ethel Attuquaye, Goodstart, and Melbourne Polytechnic (08/11/2016)

    ·Practical placement agreement between Ethel Attuquaye, Goodstart West Melton, and Melbourne Polytechnic (13/7/2017)

    ·Letter from Australian Government, Department of Education and Training to Ethel Attuquaye (26/05/2018)

    ·Statement of results of Ethel Naa Kordey Attuquaye for the qualification ‘HEFEADEYS Associate Agree of Early Years Studies’ from Melbourne Polytechnic (10/02/2021)

    ·Letter from Eloise Thomson (Head of Program, Bachelor of Education (Early Years) (09/02/2021)

    ·Tax invoice/receipt from Melbourne Polytechnic to Ethel Naa Kordey Attuquaye (15/12/2020)

    ·Melbourne Polytechnic: High Education Enrolment Summary for Miss Ethel Attuquaye (16/02/2021)

    ·1220.0 – ANZSCO – Australian and New Zealand Standard Classification of Occupants, 2013, Version 1.3 for:

    oMinor Group 421 Child Carers

    oUnit Group 4231 Aged and Disabled Carers

    ·Goodstart Early Learning pay advice/slip to Ethel Attuquaye for the periods:

    o15/01/2018 – 21/01/2018

    o08/01/2018 – 14/01/2018

    o12/06/2017 – 18/06/2017

    o12/06/2017 – 18/06/2017

    o12/06/2017 – 18/06/2017

    o26/06/2017 – 02/07/2017

    o10/07/2017 – 16/07/2017

    o29/01/2018 – 04/02/2018

    ·Australian Government, Australian Tax Office income statement of Ethel Attuquaye (employer: Guardian Community Early Learning Centres Pty Ltd, period: 01/07/2019 – 10/02/2020)

    ·Australian Government, Australian Tax Office income statement of Ethel Attuquaye (employer: Guardian Community Early Learning Centres Pty Ltd, period: 01/07/2018 – 27/06/2019

    ·Australian Government, Australian Tax Office income statement of Ethel Attuquaye (employer: Guardian Community Early Learning Centres Pty Ltd, period: 01/07/2019 – 10/02/2020)

    ·Australian Government, Australian Tax Office income statement of Ethel Attuquaye (employer: G8 Education Limited, period: 01/07/2019 – 06/10/2019)

    ·Australian Government, Australian Tax Office income statement of Ethel Attuquaye (employer: Atherstone Early Learning Centre Pty Ltd, period: 02/09/2019 – 30/06/2020

    ·Australian Government, Australian Tax Office income statement of Ethel Attuquaye (employer: Atherstone Early Learning Centre Pty Ltd, period: 02/09/2019 – 30/06/2020)

    ·Australian Government, Australian Tax Office income statement of Ethel Attuquaye (employer: Mayfield Childcare Ltd, period: 29/10/2019 – 30/06/2020)

    ·Australian Government, Australian Tax Office income statement of Ethel Attuquaye (employer: Mayfield Childcare Ltd, period: 29/10/2019 – 30/06/2020)

    ·Australian Government, Australian Tax Office income statement of Ethel Attuquaye (employer: Goodstart Early Learning Ltd, period: 01/07/2019 – 30/06/2020)

    ·

    Attachment B

    UNIT GROUP 1341 CHILD CARE CENTRE MANAGERS 

    
    CHILD CARE CENTRE MANAGERS plan, organise, direct, control and coordinate the activities of childcare centres and services including physical and human resources.

    Indicative Skill Level:
    In Australia and New Zealand: 

    Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

    
    Tasks Include:

    developing and implementing programs to enhance the physical, social, emotional and intellectual development of young children
    providing care for children in before-school, after-school, day, and vacation care centres
    directing and supervising Child Carers in providing care and supervision for young children
    ensuring the centre is a safe area for children, staff and visitors
    complying with relevant government requirements and standards
    liaising with parents
    maintaining records and accounts for the centre
    recruiting staff and coordinating professional development

    
    Occupation:

    134111 Child Care Centre Manager

    
    134111 CHILD CARE CENTRE MANAGER

    
    Alternative Titles:

    Child Care Centre Director
    Child Care Coordinator

    
    Plans, organises, directs, controls and coordinates the activities of a childcare centre or service including physical and human resources.
    Skill Level: 1