Bustos (Migration)

Case [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…

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Bustos (Migration) [2021] AATA 1133
Case
[2021] AATA 1133
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Skilled (Provisional) (Class VC) visa, Subclass 485, Graduate Work stream, made by an applicant whose nominated occupation was Painting Trades Worker. The core of the dispute concerned whether the applicant had satisfied the Australian study requirement and whether their completed qualifications were closely related to their nominated skilled occupation, as stipulated by clauses 485.221 and 485.222 of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine if the applicant met the criteria for the Subclass 485 visa, specifically focusing on the 'Australian study requirement' and the 'closely related' nature of their qualifications to the nominated occupation. The Australian study requirement, as defined by regulation 1.15F(1), necessitates the completion of registered courses totalling at least two academic years of study, undertaken in Australia while holding a study-authorised visa, with all instruction in English. An academic year is defined as at least 46 weeks.

The Tribunal found that the applicant's Certificate IV of Building and Construction (Building), completed in December 2017, did not, on its own, satisfy the requirement of at least two academic years (92 weeks) of study. However, upon considering further material, including a Statement of Academic Completion for a Certificate III in Painting and Decorating, the Tribunal concluded that the applicant did meet both the Australian study requirement under cl.485.221 and the requirement that their qualifications be closely related to the nominated occupation under cl.485.222. Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant had met these specified criteria.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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? 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. ‘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. 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. 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. 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.

Decision

Reasons for decision

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 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 DronjicMemberAttachment 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 BUNIT 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 tilesOccupation: 332211 Painting Trades Worker332211 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

Ratio Decidendi

Legal Principle Established

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