Bustos (Migration)

[2021] AATA 1133

Bustos (Migration) [2021] AATA 1133 (23 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Edgardo Nicolas Bustos

CASE NUMBER:  1818911

HOME AFFAIRS REFERENCE(S):          BCC2018/1129465

MEMBER:Antonio Dronjic

DATE:23 February 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl.485.221 of Schedule 2 to the Regulations; and

·cl.485.222 of Schedule 2 to the Regulations.

Statement made on 23 February 2021 at 4:48pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Graduate Work) – occupation of Painting Trades Worker – Australian study requirement – two academic years of relevant study – courses closely related to the nominated skilled occupation – decision under review remitted        

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 485.221, 485.222; r 1.15

CASES

Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Chawdhury v MIAC [2010] FMCA 275
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429
Constantino v MIBP [2013] FCA 1301
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767
Kabir v MIAC [2010] FMCA 577
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
MIBP v Dhillon 2014) 227 FCR 525
Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492
Shafiuzzaman v MIAC [2011] FMCA 874
Talha v Minister for Immigration and Border Protection [2015] FCAFC 115
Uddin v MIAC [2010] FCA 1281
Visnumolakala v Minister for Immigration [2006] FMCA 1209

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 20 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 March 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). 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.

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 IV of Building and Construction (Building), is closely related to the applicant’s nominated occupation of Painting Trades Worker ANZSCO 332211.

4. The applicant sought review of the delegate’s decision on 28 June 2018 and with his application submitted a copy of the primary decision record.

5. On 19 February 2021, the applicant’s representative provided submissions and documentary evidence in support of the application. The list of documents is attached to this decision record and marked as Attachment A.

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

8. 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.

9. ‘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.

10. The applicant is seeking to rely on the Certificate IV of Building and Construction (Building), which was completed on 1 December 2017, to meet the Australian study requirement. That is a course that he completed in the 6 months before the visa application was made on 9 March 2018.

11. The CRICOS website confirms that the Certificate IV of Building and Construction (Building) the applicant completed at Holmesglen Institute was registered for 48 weeks and all instruction was in English.

12. 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 his Certificate IV of Building and Construction (Building) alone, the applicant does not satisfy the ‘Australian study requirement’ in the 6 months immediately preceding the day his Subclass 485 visa application was made on 9 March 2018 as required by cl.485.221 of Schedule 2 to the Regulations.

13. The applicant has also provided evidence of completing a Certificate III in Painting and Decorating from 1 February 2016 to 16 December 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 of the courses he completed in Australia to meet the ‘Australian study requirement’.

14. The CRICOS website confirms that the Certificate III in Painting and Decorating was registered for 48 weeks and all instruction was in English. Accordingly, the Tribunal finds that the registered courses undertaken by the applicant at Holmesglen Institute have a total registered duration in excess of 92 weeks and were completed in a total of at least 16 calendar months.

15. Departmental records confirm that during the period 1 February 2016 (when the applicant commenced studies in Australia) and 1 December 2017 (when he completed the Certificate IV of Building and Construction) he was in Australia as the holder of Student visas authorising him to study in Australia.

16. 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 his 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?

17. In addition, cl.485.222 requires the qualification used to satisfy that requirement to be 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).

18. The applicant nominated the skilled occupation of Painting Trades Worker ANZSCO 332211 which is a skilled occupation specified in the relevant legislative instrument. The issue is whether each diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated occupation.

19. 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.

20. 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.

21. 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].

22. 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’.

23. The applicant is seeking to rely on the Certificate IV of Building and Construction (Building), which was completed on 1 December 2017 and the Certificate III in Painting and Decorating, which was completed on 16 December 2016, to meet the Australian study requirement. The Certificate IV of Building and Construction (Building) is a course that he completed in the 6 months before the visa application was made on 9 March 2018.

24. In considering whether the applicant’s Certificate IV of Building and Construction (Building) is closely related to his nominated skilled occupation of Painting Trades Worker, the Tribunal had regard to hierarchies and groupings in ANZSCO of which the occupation forms a part. The Tribunal also considered subjects completed by the applicant during his study for the Certificate IV of Building and Construction (Building) and the Certificate III in Painting and Decorating courses.

25. The applicant’s nominated occupation forms part of a broader Unit Group 3322. The only occupation listed in this Unit Group is Painting Trades Worker (ANZSCO 332211). Full details in relation to Unit Group 3322 are extracted in Attachment B to this decision. The ANZSCO description for Unit Group 3322 states that tasks of Painting Trades Workers 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.

26. The Tribunal considered the Department’s latest policy contained in the Procedures Advice Manual (PAM3) related to Australian study requirement. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[10] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[11] Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point.

    [10] See Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

    [11]    See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209; Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492 at [55].

27. According to the Department’s policy at 3.8.1:

    For the Subclass 485 visa in the Graduate Work stream, each degree, diploma, or trade qualification used to satisfy the Australian study requirement must be closely related to the applicant’s nominated skilled occupation. When weighing up whether a qualification is closely related to a nominated occupation, departmental officers must not confine themselves to looking at entry level tasks; whole of career opportunities must be considered. For example, studying a Diploma or Advanced Diploma of Hospitality Management (following completion of a Certificate IV in Commercial Cookery) may be appropriate for persons aspiring to work as a chef at management level.

    Under policy, the following qualifications are deemed acceptable for all nominated occupations to meet the definition of ‘closely related’:

    Leadership
    Management
    Business
    Project Management
    Building and Construction (for trades qualifications)
    Building and Construction – Management (for trades qualifications)

28. The applicant submitted and the Tribunal accepts that the departmental policy indicates that the qualifications in building and construction are deemed acceptable for satisfying the definition of ‘closely related’ for trade qualifications.

29. 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 IV of Building and Construction (Building) and the Certificate III in Painting and Decorating 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 is satisfied that the applicant’s Certificate III in Painting and Decorating and Certificate IV of Building and Construction (Building) are closely related to his nominated occupation of Painting Trades Worker as claimed.

30. Based on the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.221 and cl.485.222. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

31. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·cl.485.221 of Schedule 2 to the Regulations; and

    ·cl.485.222 of Schedule 2 to the Regulations.

    Antonio Dronjic
    Member

    
    

    Attachment A

    ·Job Outlook summary of ‘Painting Trades Workers’ (ANZSCO ID 3322)

    ·Screen shot of Holmesglen website

    ·Jora Australia summary of ‘Painting Trades Workers’

    ·Letter from Josian Berard (Education Manager – Department of Applied Building Technology, Holmesglen) (29/8/2019)

    ·Statement of Academic Completion for Certificate III in Painting And Decorating – CPC30611, from Holmesglen (6/01/2017)

    ·Cover letter/submission to the Tribunal from Juan G Rincon (Rincon and Associates) (16/02/2021)

    ·Statement of Academic Completion for Certificate IV In Building and Construction (Building – CPC40110), from Holmesglen (12/12/2017)

    ·Cover letter/submission to the Department of Home Affairs from Juan G Rincon (Rincon and Associates) (06/05/2018)

    ·Australian Government, Department of Jobs and Small Business summary of ANZSCO 3322 – 11 Painting Trades Worker (Victoria, August 2017)

    ·Email submission/cover letter addressed to the Registrar from Juan Rincon (19/2/2021)

    Attachment B

    UNIT GROUP 3322 PAINTING TRADES WORKERS

    PAINTING TRADES WORKERS apply paint, varnish, wallpaper and other finishes to protect, maintain and decorate surfaces of buildings and structures.

    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:

    NZQF 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:

    oerecting scaffolding and ladders, and placing drop sheets to protect adjacent areas from paint splattering

    opreparing surfaces by removing old paint and wallpaper, fixing woodwork, filling holes and cracks, and smoothing and sealing surfaces

    oselecting and preparing paints to required colours by mixing portions of pigment, oil, and thinning and drying additives

    oapplying paints, varnishes and stains to surfaces using brushes, rollers and sprays

    ohanging wallpaper, matching patterns and trimming edges

    ocleaning equipment and work areas

    omay repair windows and replace glass in wooden and metal frames

    omay lay and repair wall and floor tiles

    Occupation:

    332211 Painting Trades Worker

    
    332211 PAINTING TRADES WORKER

    Applies paint, varnish, wallpaper and other finishes to protect, maintain and decorate surfaces of buildings and structures. Registration or licensing may be required.

    Skill Level: 3
    Specialisation:

    Paperhanger