Chung (Migration)

[2020] AATA 5009

Chung (Migration) [2020] AATA 5009 (11 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sin-Cun Chung

CASE NUMBER:  1838186

HOME AFFAIRS REFERENCE(S):          BCC2018/3206234

MEMBER:Denise Connolly

DATE:11 September 2020

PLACE OF DECISION:  Sydney

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

Statement made on 11 September 2020 at 2:57PM

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) occupation of Motor Mechanic – Australian study requirement – study closely related to the nominated skilled occupation – most recent studies in Business – course completed in the previous 6 months – occupational tasks – supervising and training apprentices – studies related to running a workshop – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.222; rr 1.03, 1.15

CASES

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 Home Affairs on 11 December 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 24 August 2018. Visa Class VC contains Subclass 485. The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by the applicant.

3. 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 she was not satisfied the Diploma of Business used by the applicant to satisfy the Australian study requirement is closely related to his nominated skilled occupation, Motor Mechanic (ANZSCO 321211).

4. The applicant appeared before the Tribunal on 25 August 2020 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   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 includes cl.485.222 of Schedule 2 to the Regulations. It requires 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. The issue in the present case is whether the applicant meets that requirement.

8. When making the visa application on 24 August 2018, the applicant stated that he had completed the following qualifications, all at Baxter Institute, Melbourne:

   a.Diploma of Business in the period 10 November 2017 to 6 August 2018

   b.Certificate IV in Automotive Mechanical Diagnosis in the period 24 March 2017 to 21 October 2017

   c.Certificate III in Light Vehicle Mechanical Technology in the period 13 November 2015 to 3 March 2017.

9. The applicant provided completion letters from Baxter Institute confirming completion of those courses as claimed.

10. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the Certificates III and IV alone cannot be relied on to meet the Australian study requirement because they were both completed more than 6 months prior to the visa application. The applicant therefore must also rely on the Diploma of Business. The Tribunal agrees with this view which is not disputed by the applicant.

11. The delegate compared the applicant’s qualifications to the description of the nominated occupation as set out in the ANZSCO description which states in part as follows:

    UNIT GROUP 3212 MOTOR MECHANICS

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

    Tasks Include:

    odetecting and diagnosing mechanical and electrical faults in engines and parts

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

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

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

    oreassembling engines and parts after being repaired

    otesting and adjusting mechanical parts after being repaired for proper performance

    odiagnosing and testing parts with the assistance of computers

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

    omay respond to vehicle breakdown service calls

12. The delegate noted the ANZSCO description does not refer to business related activities. She was not satisfied the Diploma of Business transcript showed a relationship between the units completed and the tasks required of a motor mechanic. She was not satisfied the skills acquired from the qualification would be used in the occupation. Accordingly she was not satisfied the Diploma of Business qualification used to satisfy the Australian study requirement was closely related to the applicant’s nominated skilled occupation.

13. The representative has provided to the Tribunal a written submission arguing why the Diploma of Business is closely related to the nominated skilled occupation. He refers to an AAT case 1725227 where the Tribunal (differently constituted) remitted a case with similar facts. In that case the member found it would be impractical for a motor mechanic student to scrutinise their Diploma subjects and assess whether each subject is closely related to their occupation before they start the course. The member also found that most motor mechanics will eventually run their own automotive service workshops and will need business operation knowledge. The member was also of the view that there is overlap and interrelationship in the contemporary world where the performance of duties for an occupation requires more knowledge than previously. This Tribunal has taken these arguments into account but, as it explained at the hearing, is not bound by the decisions of other Tribunal members.

14. The representative submitted that, as a fully qualified motor mechanic, the applicant’s employer has assigned him to train apprentices. This is relevant to two subjects of his Diploma of Business; managing workforce planning and managing people performance.

15. The applicant provided a reference from his employer confirming that the applicant guides and supports apprentices. The reference also indicates that the applicant does some administrative work in his role as a mechanic. He has been educated to carry out roadworthy inspections and these involve completing paperwork. He prepares reports on parts and labour, submitted for approval, and warranty and repair reports, and performs other motor mechanic duties which are consistent with those in the ANZSCO description.

16. The applicant provided a copy of his successful Trades Recognition Australia Job Ready Final Assessment Outcome dated 9 April 2020 indicating he was assessed on the basis of his Certificate IV in Automotive Mechanical Diagnosis and his Certificate III in Light Vehicle Mechanical Technology, and his employment for Astoria Honda Brighton in the period August 2018 to March 2020.

17. At the hearing the Tribunal discussed with the applicant the requirements of the law. He acknowledged that he needs to rely on the Diploma of Business to meet the Australian study requirement. He indicated that he did the course because he dreamt of running his own motor mechanic workshop in Australia in the future. He indicated that the qualification may not seem to be related to the nominated occupation but that it is related to running a workshop. The course improved his paperwork skills and mechanics need to complete paperwork accurately and efficiently. The course also improved his skills in dealing with the Parts department.

18. The Tribunal noted that the course is essentially focused on managing a business and appears to be generic in nature. The applicant indicated that it provided him with skills in leading apprentices and in teamwork. He indicated he supervises apprentices and the course gave him skills in ensuring a safe environment. He also learned about managing risk and workforce planning. The applicant indicated that he needs to assess how many people are needed to complete a job and advise the supervisor. He manages the apprentices’ performance. As the team leader he needs to identify what they should do. The course was helpful in developing skills for those duties.

19. The Tribunal raised its concern that the applicant was describing the duties of a supervisor or manager. It noted that the applicant had in fact nominated the occupation Motor Mechanic, which when considering the ANZSCO description, does not appear to be a managerial occupation but rather, is mechanical and technical in nature. The applicant indicated that he does need to manage people performance in his role as a Motor Mechanic.

20. The applicant told the Tribunal that he intends to run his own workshop and the Diploma is highly relevant to this ambition. He understands that the Diploma is not directly related to the actual nominated occupation but it will give him tools to improve his ability to run a workshop. He believes the course helped him in his daily duties and this is reflected in his supervisor’s decision to make him a team leader. He indicated that his supervisor advised him that he was happy to hear that he had completed a Diploma of Business.

21. The applicant also indicated that the Diploma of Business will assist him to become a Licensed Vehicle Tester and this is relevant to the 8^th task set out in the ANZSCO description “may inspect vehicles and issue roadworthiness certificates or detail work required to achieve roadworthiness”.

22. The representative indicated that the Tribunal does not need to strictly apply the ANZSCO description. He noted however that the 8^th duty is related to units undertaken in the Diploma. The representative also indicated that the Diploma of Business, as a whole, provides skills to complete the Licence Vehicle Tester course which the applicant intends to do. He indicated that the description of Motor Mechanic in ANZSCO only addresses the duties related to repairing cars; it does not include the paperwork responsibilities.

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

23. Clause 485.222 requires that each qualification used to satisfy the Australian study 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).

24. The Tribunal finds the applicant must rely on the Diploma of Business to meet the Australian study requirement because it was the only qualification completed within 6 months of the visa application. The applicant does not dispute this.

25. The Tribunal accepts that the Diploma of Business will assist the applicant to run his own motor mechanic workshop in the future. While it accepts this it notes the nominated occupation is Motor Mechanic, not business manager. The Tribunal must consider the nominated occupation and not the applicant’s occupational ambitions. It has considered the Tribunal’s views on this issue in AAT case 1725227 but has formed a different view as, having regard to the ANZSCO description, it is not satisfied motor mechanics need business operation knowledge.

26. The Tribunal has taken into account the applicant’s evidence that he must supervise apprentices, workforce plan, ensure safety and manage time, paperwork and clients. It notes however that the ANZSCO description does not include tasks of this nature, which are essentially supervisory and/managerial tasks. The Tribunal relies on the reasoning in Talha v MIBP [2015] FCAFC 115 which emphasises the significance of ANZSCO in evaluating whether there is a close relationship between a qualification and the nominated occupation. Having considered the relevant ANZSCO description set out above, when considered as a whole, the Tribunal is not satisfied that management and supervision are significant features of the nominated occupation. The relevant ANZSCO description indicates that the duties of a Motor Mechanic are essentially mechanical and technical in nature, focused on repairing, maintaining and testing motor vehicle and other internal combustion engines and related mechanical components. The Tribunal accepts there may be some paperwork involved but it is not satisfied, when considered as a whole, this is a significant feature of the occupation.

27. The Tribunal has considered the submission that the Diploma of Business provides skills to complete the Licence Vehicle Tester course. It notes inspecting vehicles and issuing roadworthiness certificates is one task of the occupation. It notes however that the Court in Tahla held there is a fundamental requirement that in conducting the evaluative exercise, consideration must be given to the whole of the Australian qualification and the whole of the nominated skilled occupation. In comparing the whole of the qualification with the whole of the nominated occupation, the Tribunal is not satisfied the Diploma of Business Management is closely related to the nominated skilled occupation of Motor Mechanic.

28. The Tribunal accepts that the applicant’s Certificate IV in Automotive Mechanical Diagnosis and his Certificate III in Light Vehicle Mechanical Technology are closely related to the nominated skilled occupation. However neither of those courses was completed within 6 months of the visa application so, as found above, the applicant must rely on the Diploma of Business to satisfy the Australian study requirement. Having considered all the evidence before it, the Tribunal is not satisfied that the Diploma of Business is closely related to the nominated occupation of Motor Mechanic.

29. The Tribunal is not satisfied that each of the qualifications used to satisfy the Australian study requirement is closely related to the nominated occupation. The Tribunal is therefore not satisfied the applicant meets cl.485.222.

30. 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

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

    Denise Connolly
    Member