Bhullar (Migration)

[2018] AATA 5744

Bhullar (Migration) [2018] AATA 5744 (7 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaspreet Singh Bhullar

CASE NUMBER:  1730668

HOME AFFAIRS REFERENCE(S):           BCC2017/3146657

MEMBER:Susan Trotter

DATE:7 November 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 07 November 2018 at 4:00pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Motor Mechanic (General) – Australian study requirement – academic duration – Certificate III in Light Vehicle Mechanical Technology – Diploma of Leadership and Management – relation to nominated skilled occupation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 363
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cls 485.221, 485.222

CASES
Chawdhury v MIAC [2010] FMCA 275
Constantino v MIBP [2013] FCA 1301
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kabir v MIAC [2010] FMCA 577
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28 
MIBP v Dhillon (2014) 227 FCR 525
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Shafiuzzaman v MIAC [2011] FMCA 874
Talha v MIBP [2015] FCAFC 115

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 Immigration (the Minister) on 15 November 2017 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 is a 26 year old citizen of India. He first arrived in Australia in December 2014 as the holder of a student visa. He has undertaken various studies in Australia. He applied for the temporary visa the subject of this application, known as a Subclass 485 visa, on 30 August 2017.

3. 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).

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the Diploma of Leadership and Management qualification completed by the applicant is closely related to the applicant’s nominated skilled occupation of Motor Mechanic (General) (ANZSCO Code 321211) as required.

5. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 5 December 2017.

6. The applicant appeared before the Tribunal on 6 November 2018 to give evidence and present arguments.

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

   ISSUES

8. 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.

9. Clause 485.221 provides that the applicant must have satisfied the ‘Australian study requirement’ in the period of six months immediately before the day the application was made.

10. Clause 485.222 provides that each degree, diploma or trade qualification used to satisfy the Australian study requirement must be closely related to the applicant’s nominated skilled occupation.

11. 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 one or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses that:

    (a)  are registered courses; and

    (b)  were completed in a total of at least 16 calendar months; and

    (c)  were completed as a result of a total of at least two academic years study; and

    (d)  for which all instruction was conducted in English; and

    (e)  the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.

12. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see rr.1.03, 1.15F and 2.26AC(6) of the Regulations, and cl.485.111 of Schedule 2 of the Regulations).

13. For the purposes of this case, ‘2 academic years’ is specified by the Minister in IMMI 09/040 to mean at least a total of 92 weeks, being the duration of a course or courses registered under s.9 of the Education Services for Overseas Students Act 2000.

14. It follows that the issues to be determined by the Tribunal are:

    (a)  Did the applicant meet the Australian study requirement in the period of six months immediately before the day of the visa application?

    (b)  Is each degree, diploma or trade qualification relied upon by the applicant to satisfy the Australian study requirement closely related to the applicant’s nominated skilled occupation?

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The applicant listed the following Australian study in his visa application (unedited):

    Cert III in Light Vehicle             New England College  5 Sep 2016 to

    Mechanical Technology           Brisbane  15 Aug 2017

    Diploma of Leadership             Queensland Institute of Commerce                  3 Aug 2015 to

    And Management                   and Technology  1 Aug 2016

    Issue 1 – Did the applicant meet the Australian study requirement in the period of six months immediately before the day of the visa application?

16. The Tribunal first considered whether each of the courses completed by the applicant is a degree, diploma or trade qualification as required by r.1.15F to be taken into account in establishing whether the Australian study requirement is met.

17. Provider Registration and International Student Management System (PRISMS) records confirm that the applicant has completed a Certificate III in Light Vehicle Mechanical Technology and a Diploma of Leadership and Management.

18. Regulation 2.26AC(6) provides as follows:

    degree means a formal educational qualification, under the Australian Qualifications Framework, awarded by an Australian educational institution as a degree or a postgraduate diploma for which:

    (a)  the entry level to the course leading to the qualification is:

    (i)   in the case of a bachelor’s degree — satisfactory completion of year 12 in the Australian school system or of equivalent schooling; and

    (ii)   in the case of a master’s degree — satisfactory completion of a bachelor’s degree awarded at an Australian tertiary educational institution or of an equivalent award; and

    (iii)  in the case of a doctoral degree — satisfactory completion of a bachelor’s degree awarded with honours, or a master’s degree, at an Australian tertiary educational institution or of an equivalent award; and

    (iv)  in the case of a postgraduate diploma — satisfactory completion of a bachelor’s degree or diploma awarded at an Australian tertiary educational institution or of an equivalent award; and

    (b)  in the case of a bachelor’s degree, not less than 3 years of full-time study, or the equivalent period of part-time study, is required.

    diploma means:

    (a)  an associate diploma, or a diploma, within the meaning of the Register of Australian Tertiary Education (as current on 1 July 1999), that is awarded by a body authorised to award diplomas of those kinds; or

    (b)  a diploma, or an advanced diploma, under the Australian Qualifications Framework, that is awarded by a body authorised to award diplomas of those kinds.

    …

    trade qualification means:

    (a)  an Australian trade qualification obtained as a result of the completion of:

    (i)   an indentured apprenticeship; or

    (ii)   a training contract;

    that is required by State or Territory industrial training legislation or a relevant Federal, State or Territory industrial award and involves:

    (iii)  part-time formal training at a technical college or a college of technical and further education; and

    (iv)  employment within the meaning of:

    (A)  an industrial award under a law of the Commonwealth or of a State or Territory; or

    (B)  a law of a State or Territory dealing with commercial or industrial training; or

    (b)  a qualification, under the Australian Qualifications Framework, of at least the Certificate III level for a skilled occupation in Major Group IV in the ASCO; or

    (c)  a qualification, under the Australian Qualifications Framework, of at least the Certificate III level for a skilled occupation in Major Group 3 in ANZSCO.

19. The Tribunal is satisfied and finds that pursuant to r.2.26AC(6), the Diploma of Leadership and Management is a diploma under the Australian Qualification Framework that has been awarded by a body authorised to award diplomas of that kind and can be taken into account. Further the Tribunal is satisfied that the Certificate III in Light Vehicle Mechanical Technology is a trade qualification as defined by r.2.26AC(6)(c) and can be taken into account.

20. Having regard to all evidence and material before it, including the Australian Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) records and PRISMS records, the Tribunal finds that the Diploma of Leadership and Management course and the Certificate III in Light Vehicle Mechanical Technology are registered courses, being courses of education provided by institutions that are registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the courses to overseas students. The Tribunal therefore finds that r.1.15F(1)(a) is met.

21. Based on the evidence before the Tribunal, these courses were studied by the applicant for a total of at least 16 calendar months. The Tribunal therefore finds that r.1.15F(1)(b) is met.

22. CRICOS records show that the academic duration of the Diploma of Leadership and Management is 52 weeks and the academic duration of the Certificate III in Light Vehicle Mechanical Technology was 52 weeks. These courses together were therefore of an academic duration of 104 weeks in total (that is, over 92 weeks and at least two academic years). Further, the Tribunal is satisfied on the evidence before it that all instruction was in English for the courses. The Tribunal is therefore satisfied and finds that the requirements of r.1.15F(1)(c) and r.1.15F(1)(d) are met in relation to these two courses together.

23. Based on records from the Department of Home Affairs (the Department), the Tribunal is satisfied that the applicant held a Subclass 573 (Higher Education Sector) visa authorising study throughout the period of study of both courses. The Tribunal therefore finds that r.1.15F(1)(e) is met.

24. As paragraphs (a) to (e) of r.1.15F are met, the Tribunal finds that the applicant meets the Australian study requirement. In considering whether that requirement was met in the six months immediately preceding the date of the visa application, the Tribunal notes that the Department’s policy guidelines contained in its Procedures Advice Manual (PAM3) states as follows in relation to the Australian study requirement under the Graduate Work stream:

    When must the study have been undertaken

    …

    ·if the applicant is claiming to satisfy the Australian study requirement on the basis of having completed more than one eligible qualification, they must have met the academic requirements for the award of their most recently completed qualification at some time in the 6 months immediately before the day the VC-485 application was made.

25. The applicant’s most recently completed qualification was the Certificate III in Light Vehicle Mechanical Technology, which the Tribunal has found is an eligible qualification. Based on the documentary evidence before it, the Tribunal is satisfied and finds that the applicant completed that qualification on 15 August 2017, that is, within the period of six months immediately before the day of the visa application, 30 August 2017.

26. Therefore cl.485.221 is met.

    Issue 2 – Is each such degree, diploma or trade qualification closely related to the applicant’s nominated skilled occupation?

27. An occupation is a ‘skilled occupation’ if it is 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.[1]

    [1] Regulations 1.03 and 1.15l

28. The applicant nominated the skilled occupation of Motor Mechanic (General), which is a skilled occupation specified in the relevant instrument, IMMI 17/072.

29. The term ‘closely related’ is not defined in the Regulations. However, the term has been considered in the decisions of MIBP v Dhillon (2014) 227 FCR 525 (Dhillon) and Talha v MIBP [2015] FCAFC 115 (Talha) as well as in Constantino v MIBP [2013] FCA 1301 (Constantino). Accordingly, the Tribunal has been guided by these cases in its consideration of this issue.

30. 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:

    (a)  While the words ‘closely related’ are not defined in the legislation, they do require and call attention to the connection between two things, and although the words ‘closely related’ do not require an exact correspondence (Dhillon), the relationship must be more than merely complementary (Constantino).

    (b)  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, the ‘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) (Talha).

    (c)  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 or usefulness of the qualifications to the nominated occupation. (Chawdhury v MIAC [2010] FMCA 275, Kabir v MIAC [2010] FMCA 577 and Shafiuzzaman v MIAC [2011] FMCA 874).

    (d)  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 (Talha) 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. (Talha, Dhillon and Constantino).

31. In making the assessment, the Tribunal has considered the nature of the nominated occupation as determined by reference to the ANZSCO and has read the ANZSCO as a whole with a view to identifying and applying information which is relevant to an understanding of the whole of the requirements of the nominated occupation.

32. The Tribunal has proceeded on the basis of objectively considering the relationship of the applicant's qualifications to the ANZSCO tasks for the occupation. The Tribunal has considered whether the applicant's Australian qualifications are ‘closely related’ to the nominated skilled occupation by carrying out an evaluative exercise of the whole of the Australian studies undertaken by the applicant compared with the whole of the nominated occupation.

33. The Full Federal Court's decision in Talha notes that the ANZSCO comprises a system of five hierarchies for classifying occupations. At the lowest level of this hierarchy, the 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. ANZSCO Unit Group 3212 Motor Mechanic (General) states the following in relation to this nominated occupation:

    UNIT GROUP 3212 MOTOR MECHANICS

    MOTOR MECHANICS repair, maintain and test motor vehicle and other internal combustion engines and related mechanical components.

    Motor Vehicle Parts and Accessories Fitters are excluded from this unit group. Motor Vehicle Parts and Accessories Fitters are included in Unit Group 8994 Motor Vehicle Parts and Accessories Fitters.

    Indicative Skill Level:

    Most occupations in this unit 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)

    In New Zealand:

    NZ Register Level 4 qualification (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.

    Registration or licensing may be required.

    Tasks Include:

    ·detecting and diagnosing mechanical and electrical faults in engines and parts

    ·dismantling and removing engine assemblies, transmissions, steering mechanisms and other components, and checking parts

    ·repairing and replacing worn and defective parts and reassembling mechanical components, and referring to service manuals as needed

    ·performing scheduled maintenance services, such as oil changes, lubrications and engine tune-ups, to achieve smoother running of vehicles and ensure compliance with pollution regulations

    ·reassembling engines and parts after being repaired

    ·testing and adjusting mechanical parts after being repaired for proper performance

    ·diagnosing and testing parts with the assistance of computers

    ·may inspect vehicles and issue roadworthiness certificates or detail work required to achieve roadworthiness

    ·may respond to vehicle breakdown service calls

    Occupations:

    321211 Motor Mechanic (General)

    321212 Diesel Motor Mechanic

    321213 Motorcycle Mechanic

    321214 Small Engine Mechanic

    321211 MOTOR MECHANIC (GENERAL)

    Alternative Title: Automotive Light Mechanic

    Maintains, tests and repairs petrol engines and the mechanical parts of lightweight motor vehicles such as transmissions, suspension, steering and brakes. Registration or licensing may be required.

    Skill Level: 3

    Specialisations:

    Automatic Transmission Mechanic

    Automotive Airconditioning Mechanic

    Brake Mechanic

    Ground Support Equipment Fitter (Air Force)

    Roadside Mechanic

    Vehicle Mechanic (Army)

35. The Tribunal accepts that the Certificate III in Light Vehicle Mechanical Technology course is a qualification closely related to the nominated skilled occupation of Motor Mechanic (General).

36. The Statement of Results for the Diploma of Leadership and Management completed by the applicant shows the following subjects were completed by the applicant towards that course:

    Manage Quality Customer Service
    Manage People Performance
    Facilitate Continuous Improvement
    Manage Workforce Planning
    Develop and Use Emotional Intelligence
    Manage Risk
    Lead and Manager Effective Workplace Relationships
    Lead and Manage Team Effectiveness
    Manage Operational Plan
    Manage Budgets and Financial Plans
    Support the Recruitment, Selection and Induction of Staff
    Ensure a Safe Workplace

37. Having identified the description and tasks information in ANZSCO in relation to the occupation of Motor Mechanic (General), including having had regard to the tasks described in Unit Group 3212, the Tribunal also had regard to the higher hierarchies of which Unit Group 3212 forms a part, that is Minor Group 321 Automotive Electricians and Mechanics, Sub-Major Group 32 Automotive and Engineering Trades Workers and Major Group 3 Technicians and Trades Workers.

1. The Tribunal also took into account the Full Federal Court’s observations on that approach in Talha and, as already noted, the need to compare the whole of the visa applicant’s studies against the whole of the nominated occupation.

2. Consistent with the approach suggested by the Court in Talha, the Tribunal also considered the tasks described for Unit Group 3212 Motor Mechanics, as well as Minor Group 321 Automotive Electricians and Mechanics, Sub-Major Group 32 Automotive and Engineering Trades Workers Major Group 3 Technicians and Trades Workers, of which Unit Group 3212 Motor Mechanics forms part, as outlined above.

3. The Tribunal has considered the actual subjects studied in the Diploma of Leadership and Management course by the applicant, including by reference to the Statement of Results provided by the applicant to the Department and as regards the tasks described for 321211 Motor Mechanic (General), Unit Group 3212 Motor Mechanics, Minor Group 321 Automotive Electricians and Mechanics, Sub-Major Group 32 Automotive and Engineering Trades Workers and Major Group 3 Technicians and Trades Workers

4. For ease of reference, they are set out side by side below:

Description	Tasks	Subjects
321211 Motor Mechanic (General)	Maintains, tests and repairs petrol engines and the mechanical parts of lightweight motor vehicles such as transmissions, suspension, steering and brakes. Registration or licensing may be required.	Manage Quality Customer Service Manage People Performance Facilitate Continuous Improvement Manage Workforce Planning Develop and Use Emotional Intelligence Manage Risk Lead and Manage Effective Workplace Relationships Lead and Manage Team Effectiveness Manage Operational Plan Manage Budgets and Financial Plans Support the Recruitment, Selection and Induction of Staff Ensure a Safe Workplace
Unit Group 3212 Motor Mechanics	·     detecting and diagnosing mechanical and electrical faults in engines and parts ·     dismantling and removing engine assemblies, transmissions, steering mechanisms and other components, and checking parts ·     repairing and replacing worn and defective parts and reassembling mechanical components, and referring to service manuals as needed ·     performing scheduled maintenance services, such as oil changes, lubrications and engine tune-ups, to achieve smoother running of vehicles and ensure compliance with pollution regulations ·     reassembling engines and parts after being repaired ·     testing and adjusting mechanical parts after being repaired for proper performance ·     diagnosing and testing parts with the assistance of computers ·     may inspect vehicles and issue roadworthiness certificates or detail work required to achieve roadworthiness ·     may respond to vehicle breakdown service calls
Minor Group 321 Automotive Electricians and Mec	o    diagnosing electrical and mechanical faults in motor vehicles and small engines o    dismantling engines and electrical systems o    repairing and replacing worn and defective parts o    installing electrical equipment and electronic components in motor vehicles o    testing and adjusting electrical and mechanical systems and parts after repair for proper performance o    performing scheduled maintenance on motor vehicles
Sub-Major Group 32 Automotive and Engineering Trades Workers	o    diagnosing electrical and mechanical faults in motor vehicles and aircraft o    dismantling engines and electrical systems, and removing damaged panels and interior trim o    repairing and replacing worn and defective parts o    painting repaired vehicle surfaces o    constructing, modifying, painting and upholstering prototype and specialised vehicle bodies o    marking and cutting out metal stock o    shaping stock using hand and machine tools o    shaping metal in moulds o    joining stock and components by welding, soldering, brazing, riveting, bolting, screwing and gluing o    fitting and testing components, and applying protective and decorative finishes to metal products
Major Group 3 Technicians and Trades Workers	o    carrying out tests and experiments, and providing technical support to Health Professionals, Natural and Physical Science Professionals and Engineering Professionals o    providing technical support to users of computer hardware and software o    fabricating, repairing and maintaining metal, wood, glass and textile products o    repairing and maintaining motor vehicles, aircraft, marine craft and electrical and electronic machines and equipment o    constructing, repairing, fitting-out and finishing buildings and other structures o    operating printing and binding equipment o    preparing and cooking food o    shearing, caring for, training and grooming animals, and assisting Veterinarians o    propagating and cultivating plants, and establishing and maintaining turf surfaces for sporting events o    cutting and styling hair o    operating chemical, gas, petroleum and power generation equipment o    providing technical assistance for the production, recording and broadcasting of artistic performances

1. The Tribunal has also taken into account the prehearing written submissions received from the applicant in relation to the Diploma of Management and Leadership as follows (unedited):

   I am writing to provide specifics regarding relevancy of my studies to the nominated occupation of Motor Mechanic (ANZSCO Skill level 3 – 321211). During my stay in Australia, I have completed Diploma of Leadership and Management and Certificate III in Light Vehicle Mechanical Technology.

   I enrolled and completed Diploma of Leadership and Management because I wanted to enhance my skills and knowledge that are expected from a leader to manage a team and / or projects within an organization or to successfully manage own business of this course has:

   ·helped me to develop strategies to manage organisational systems and to ensure that the products and services are delivered and maintained to standards as agreed by the organisation to the customers;

   ·provided knowledge to manage team that is required to allocate work according to employee’s capability and experience, to conduct performance review, reward excellence and provide feedback;

   ·facilitated continuous improvement by motivating to continuously improve my skills according to the business;

   ·helped me to learn the skills of making business policies and the procedures to follow so that there is no disarray to the employee for their roles and for the mission and vision of the business;

   ·developed emotional intelligence required to establish strategic direction of the organization, enhance competitiveness and describing the mission and vision of the organization, analyze and interpretation of relevant markets, assessment of the organization and analysis of the organization’s potential competitors;

   ·helped me as an individual to implement and understand the change in business unit, program and the project area;

   ·provided knowledge on how to manage workplace relationship, manage business budgets and do the financially planning accordingly,

   ·helped me acquire skills required for recruitment, selection and induction of new employees;

   ·given knowledge on how to ensure workplace safety is adhered all the time within the business / organization;

   ·And helped me build the operational plan.

   …

   The explanation on above skills and knowledge gained through Diploma of Leadership and Management and Certificate III in Light Vehicle Mechanical Technology highlights why it is important to have leadership besides trade skills to survive in automotive industry. To start up a new business, which is my long term plan and goal, it is essential for the professional to run everything from serving customers to preparing budgeting, financial plans, payrolls, meetings, work priorities, communicating with clients and employees, and marketing; and this is often a difficult requirement for anyone.

   Automotive is a very vast field and due to globalization people are becoming more advanced by keeping themselves up to date with new innovations, technology and techniques. As there is a huge competition in the automotive industry, I have learnt the techniques to continuously improve my skills so that I can manage the business and match the competition in the market.

   There are many challenges in automotive industry including managing risks, maintaining workplace safety, managing operational plans, leading team, recruiting new mechanics and managing financial plan. I have gained skills to manage / overcome these challenges through my previous study in Diploma of Leadership and Management.

   I can strongly say that all these necessary skills which I have learnt after studying “Diploma of Leadership and Management”, will help me in running my automotive business successfully which is my dream.

   From all the above I have explained how my Certificate III in Light Vehicle Mechanical Technology is related with Diploma of Leadership and Management.

2. The Tribunal discussed a number of matters with the applicant at hearing, including that the issue to be determined is not whether the Certificate III in Light Vehicle Mechanical Technology is related to the Diploma of Leadership and Management nor whether the Diploma of Leadership and Management will be of assistance to him with his future aspirations of running an automotive business, but rather whether of the Diploma of Management and Leadership is ‘closely related’ to the nominated skilled occupation of Motor Mechanic (General).

3. The applicant told the Tribunal that if you look at the complete course of the Diploma of Leadership and Management you can see it is easy to open a business but not easy to run a business. He stated that he can use the skills from the Diploma of Leadership and Management in his occupation as a motor mechanic. The Tribunal asked the applicant how it is that he says the skills from the Diploma of Leadership and Management qualification are closely related to the nominated skilled occupation of Motor Mechanic (General). The applicant responded that if he starts working as a motor mechanic he will work properly and he will get promoted to a manager and lead a team, and he will then manage the finances and use those skills, by way of example. The Tribunal discussed with the applicant that the requirement is that the qualification is closely related to the nominated skilled occupation not to a positon he may obtain if he is promoted to manager or similar. The applicant said if he is the only one that is working as a motor mechanic then the skills from the Diploma of Leadership and Management course would help him dealing with customers. The Tribunal noted the applicant’s evidence and indicated that it may accept that the course is related to the nominated skilled occupation and may assist in that occupation but may not be satisfied that it is closely related as required. The applicant said he did the course because he felt it would be of assistance to his future goals and his future job. The Tribunal again discussed with the applicant that the requirement in the legislation is not that the qualification be closely related to his future goals and his future job but that it be closely related to the nominated skilled occupation.

4. The applicant told the Tribunal that he has been told by his agent that his agent had another client in similar circumstances had who been granted the visa and he would be able to get this information and provide it to the Tribunal. The Tribunal discussed with the applicant that it was not able to comment on other cases and could not take into account what the Department may have decided in relation to another applicant, but was confined to deciding his matter based on his circumstances and the application of the law. The applicant confirmed that he had provided all information relevant to his circumstances to the Tribunal.

5. Although the applicant did not specifically request an adjournment, the Tribunal has considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide information about another applicant for the same visa.

6. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.

7. However, as discussed with the applicant at hearing, the circumstances of another applicant are not relevant to the applicant’s visa application. In circumstances where the applicant confirmed to the Tribunal that he had provided all relevant information to the Tribunal, the Tribunal decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review.

8. The Tribunal accepts that the subjects covered in the Diploma of Leadership and Management course would be helpful generally in all employment situations, including a managerial position, and including if running an automotive business, the applicant’s goal. However, from analysing the Diploma of Leadership and Management qualification (including consideration of the subjects making up that course and the applicant’s evidence and submissions in relation to that course) and the relevant tasks for the whole of the occupation of Motor Mechanic (General), the Tribunal is not satisfied that the Diploma of Leadership and Management qualification is closely related to the occupation of Motor Mechanic (General).

9. It follows that cl.485.222 is not met in relation to the Diploma of Leadership and Management qualification undertaken by the applicant.

   Conclusion

10. In conclusion therefore, the Tribunal is only satisfied that the Certificate III in Light Vehicle Mechanical Technology is closely related to the nominated skilled occupation of Motor Mechanic (General) and not the Diploma of Leadership and Management qualification. Clause 485.222 is therefore only met in relation to the Certificate III in Light Vehicle Mechanical Technology. As that course does not have an academic duration of 92 weeks, that is two academic years, this qualification, without the Diploma of Leadership and Management, mean that cl.485.221 cannot be met.

11. 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

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

    Susan Trotter
    Member