Dilraj Singh (Migration) - [2020] AATA 4931

Dilraj Singh (Migration) [2020] AATA 4931 (9 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Dilraj Singh
CASE NUMBER:  1924857
HOME AFFAIRS REFERENCE(S):          BCC2019/2893608
MEMBER:Warren Stooke AM
DATE:9 October 2020
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
·cl.485.222 of Schedule 2 to the Regulations

Statement made on 9 October 2020 at 5:56pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Painting Trades Worker – Australian study requirement – Diploma of Building and Construction (Building) – qualification ‘closely related’ to nominated occupation – ANZSCO role description – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cls 485.221, 485.222
CASES
Pasula v Minister for Immigration & Anor [2010] FMCA 219
Talha v Minister for Immigration and Border Protection [2015] FCAFC 115
STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 August 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 6 June 2019. 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.
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 completed Diploma of Building and Construction (Building) course was not considered as ‘closely related’ to the nominated occupation of Painting Trades Worker – ANZSCO 332211.
The applicant appeared before the Tribunal on 30 September 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
The applicant stated that he understood that the application was refused because the Department said his courses were not relevant to each other and that the Diploma is more relevant to management than his painting skills.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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 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 preceding 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.
The applicant stated that he arrived in Australia on 9 September 2015 and that he completed the following courses of study:
a.Certificate III in Painting and Decorating at the Western Institute of Technology on 22 October 2017; and
b.Diploma Building and Construction (Building) at the Harwood International College on 27 May 2019
The applicant provided evidence that he was granted a Bridging Visa A, with a health insurance maintenance condition 8501, on 4 June 2019 and that he has a health insurance policy with Allianz.
The applicant provided evidence that he was successfully assessed for his trade skills by Trades Recognition Australia on 21 May 2019.
The applicant provided evidence that he completed an IELTS English language test on 14 October 2017 with an overall test score of 8.0.
The applicant stated that he had been working with a painting company named Melbourne Spectrum Painting since December 2018 and that he had previously worked with Jerry Building Design. In this regard, the applicant stated that he was paid $15.00 per hour with his prior employer and was paid $30.00 per hour with his current employer. In response the Tribunal noted to the applicant and the representative that the wage of $15.00 per hour was less than the minimum wage and that whilst this was not the subject of the matter before the Tribunal the applicant should further address this matter with the appropriate authority [Fair Work Ombudsman].
At this juncture, the Tribunal explained to the applicant the requirements of regulations 485.221 and 485.222 and asked the applicant, if he understood the requirements that had to be met, which the applicant responded he understood.
The Tribunal requested that the applicant explain to the Tribunal why he considers that the Diploma of Building and Construction (Building) is ‘closely related’ to the nominated occupation of painting trades worker and the applicant responded with the following comments regarding the course and the nominated occupation:
a.Painting is part of the building and construction industry and that his future career required more knowledge and skills;
b.The college advised that the Diploma of Building and Construction (Building) is the most closely related to Building and Construction;
c.The course enabled the applicant to:
i.Estimate materials and labour and to then complete the labour and materials cost;
ii.Perform construction safely; on time and how to organise a work order;
iii.Project quality, as given by the owner regarding special materials, for example the painting finish;
iv.Conduct measurements and calculations relevant to the project;
v.Work in confined space and work at heights;
vi.Dispose of waste materials, which included making the paints solid with a compound to effect proper disposal for the environment and that the leftover paints are used at other sites or donated to charities;
vii.Visit to the site prior to commencing the work to prepare a material data sheet.
The applicant confirmed to the Tribunal that he was the holder of a construction industry “whitecard” and that he held a licence to use a scissor lift.
The applicant provided the Tribunal with a transcript for the Diploma of Building and Construction (Building) course from the Harwood International College, that included the following subjects of study:
·BSBOHS504B Apply principles of OHS risk management
·BSBPMG505A Manage Project quality
·BSBPMG508A Manage Risk
·CPCCBC4001A Apply building codes and standards to the construction process for low rise building projects
·CPCCBC4003A Select and prepare a construction contract
·CPCCBC4004A Identify and produce estimated costs for building and construction projects
·CPCCBC4010B Apply structural principles to residential low rise constructions
·CPCCBC4013A Prepare and evaluate tender documentation
·CPCCBC5001B Apply building codes and standards to the construction process for medium rise building projects
·CPCCBC5002A Monitor costing systems on medium rise building and construction projects
·CPCCBC5003A Supervise the planning of on-site medium rise building or construction work
·CPCCBC5006B Apply site surveys and set-out procedures to medium rise building projects
·CPCCBC5007B Administer the legal obligations of a building or contraction contractor
·CPCCBC5009A Identify services layout and connection methods to medium rise construction projects
·CPCCBC5010B Manage construction work
·CPCCBC5011A Manage environmental management practices and processes in building and construction
·CPCCBC5012A Manage the application and monitoring of energy conservation and management practices and processes
·CPCCBC5018A Apply structural principles to the construction of medium rise buildings
The Representative provided a further explanation of the relationship between the Diploma of Building and Construction (Building) course undertaken by the applicant and the nominated occupation, in the following submission:
“BSBOHS504B Apply principles of OHS Risk Management:
This unit describes the performance outcomes, skills and knowledge required to use a generic approach to identify hazards, and to assess and control occupational health and safety (OHS) risks. It also includes conceptual models for understanding the nature of hazards.
Even though this unit applies to individuals with managerial responsibility for providing a systematic approach to hazard identification, risk assessment and risk control, with the emphasis on elimination or, where this is not possible, minimisation of risk. It also includes conceptual models for understanding the nature of hazards which is applicable given the OHS hazard and risks within the construction industry.
Painting Trades workers need to be vigilant and adhere to occupational health and safety hazards particularly as multiple trades work are conducted at a construction side including electrical and structural work and associated debris etc as such having this knowledge helps minimise OHS risk even at the basic level and provides foresight to avoid potential hazards.
CPCCBC4001A Apply building codes and standards to the construction processes for low rise building projects:
This unit of competency specifies the outcomes required to access, interpret and apply relevant building codes and standards applicable to the construction processes of residential and low-rise commercial buildings.
This unit helps a Painting Trades Worker ensure their work practices meet the required standards.
CPCCBC4003A Select and Prepare Construction Contract:
This unit of competency specifies the outcomes required to select and prepare appropriate construction contracts, including the sections, clauses, and conditions for low rise construction projects. The ability to interpret complex documents, communicate clearly and succinctly and negotiate is essential skills.
Painting Trades Workers do not need to initiate contracts except for when they are operating as a business function, however having the ability and the skill to read and interpret relevant parts of the contract including an understanding of the minimum obligations or adhering to timelines and cost estimation functions is relevant to their skill set.
CPCCBC4004A Identify and produce estimated costs for building and construction projects:
This unit of competency specifies the outcomes required to establish the estimated costs associated with the acquisition of materials and labour on building and construction sites, together with the application of relevant overhead costs and margins. Knowledge of physical resource and supplier identification, assessment of the availability of and requirements for skilled labour and application of appropriate codes, regulations and approvals gaining processes is essential.
This unit provides with necessary skills for cost estimation and integration of the various trades within the particular construction site or project.
CPCCBC4013A Prepare and evaluate tender documentation:
This unit of competency specifies the outcomes required to evaluate contract specifications and information and to prepare tender documents associated with projects in the building and construction industries.
Knowledge of tender preparation and interpretation of project demands and requirements and the capability to bring together a body of diverse information are essential. How to find the information and present it in a manner that meets organisational needs in short timeframes is important, as is the ability to manage time effectively.
For example, a Painting Trades Worker visit the site, prepare the safety material data sheet, calculate the amount of materials to be used and associated cost of the materials and provides estimate of time and thus assist in working out the labour costs and material costs for the painting aspect of the tender documentation preparation.
CPCCBC5001B Apply building codes and standards to the construction process for medium rise building projects:
This unit of competency specifies the outcomes required to access, interpret and apply relevant building codes and standards applicable to the construction processes of medium rise commercial and wide span buildings.
The Painting Trades Worker is responsible to ensure compliance with building codes and standards in the construction industry when conducting their work and having the ability to understand the relevant industry codes and standards is relevant to their skill even though not at an advanced level as that required of other construction professionals.
CPCCBC5002A Monitor costing systems on medium rise building and construction projects:
This unit of competency specifies the outcomes required to monitor building or construction costing systems. The processes and practices involved in supervising and monitoring costing systems result in the ongoing maintenance of cost control and the production of expenditure schedules and other arrangements, which ensure contracts or projects remain on budget.
In order to achieve the outcomes for this unit, knowledge of relevant legislation, codes and standards, industry estimating and costing systems, and financial principles is required.
This skill set is related to the skill set of Preparing and evaluating tender documentation as once the cost estimation is finalised, it is also important for the construction site workers to ensure wastage is minimised to ensure cost estimates do not fail. Additionally, appropriate feedback including shortcomings of estimates or wastage needs to be reviewed to ensure future estimates or wastage are more efficiently planned and appropriate steps are taken to minimise wastage.
CPCCBC5003A Supervise the planning of on-site medium rise building or construction work:
This unit of competency specifies the outcomes required to supervise the planning process and organisation of on-site building or construction work projects up to and including medium rise commercial and wide span buildings.
Supervision of painting trades workers are conducted by the primary or supervising Painting Trades workers who is ultimately responsible for the painting aspect of the work and supervisors other Painting Trades Workers and apprentices. This function relates to the plans being followed and projects complete on time within the various sites.
CPCCBC5004A Supervise and apply quality standards to the selection of building and construction materials:
This unit of competency specifies the outcomes required to supervise the systems through which materials are selected, acquired and stored on site for building or construction work up to and including medium rise projects. It ensures the delivery to the site of materials that meet contract specifications and service requirements for commercial projects.
To achieve the outcomes for this unit, knowledge of relevant building construction materials and technologies, environmental effects on materials and testing procedures is required.
A Painting Trades Worker selects appropriate material for the painting aspect of the project or construction site. They also need to ensure the cost estimates do not fail and wastage is minimised.
CPCCBC5005A Select and manage building and construction contractors:
This unit of competency specifies the outcomes required to select and manage building and construction contractors.
It covers the processes and practices involved in supervising the systems through which the selection and management of subcontract resources occurs within the organisation, and through which subcontracting needs are identified and quantified.
A Painting Trades Worker is instrumental in the estimation function depending the site as their input will help determine number of team members required and the type of experience required (example commercial low rise or residential medium rise).
CPCCBC5009A Identify services layout and connection methods to medium size construction projects:
This unit of competency specifies the outcomes required to identify drawings, specifications and requirements for services in a range of medium rise and wide span commercial projects.
It requires an ability to identify and evaluate differing methods and services in accordance with building regulations and standards
A Painting Trades Worker is instrumental in the estimation function depending the site as their input will help determine number of team members required and the type of experience required (example commercial low rise or residential medium rise).
CPCCBC5010B Manage construction work:
This unit of competency specifies the outcomes required to manage construction work and/or projects, which may involve fulfilling single or multi-site commercial contractual obligations.
To successfully manage construction projects requires knowledge of relevant industry legislation, codes, standards, methods, procedures and practices as well as the ability to communicate effectively with others.
The Painting Trades workers do not manage the entire construction and still need to manage their aspect of the construction work primarily painting such as managing materials, managing team members and managing time to ensure project timeliness standards are completed as scheduled.
CPCCBC5018A Apply structural principles to the construction of medium rise buildings:
This unit of competency specifies the outcomes required to apply structural principles to the building of medium rise buildings. The design and construction of medium rise buildings require the input of a range of skilled professionals, including architects and engineers. The building and construction professional plays a significant role within this project team and requires the ability to communicate effectively with building design professionals and develop sound and safe practices in relation to structural procedures on site.
Painting Trades Workers benefit having knowledge of the above given that skill set relating to site safety and quality control measures are maintained during residential and commercial projects.
As outlined above, most of the units completed within the Diploma of Building and Construction (Building) are highly relevant whilst some are compatible given the Construction industry and contributes to his skill set and employability.
Additionally, Mr Singh holds a “White Card” and works in areas of heights and confined spaces. He has also acquired knowledge of associated legislation and needs to adhere to all regulatory obligations in conducting his work various construction sites.
Mr Singh also maintains knowledge of waste management and needs to ensure any wastage is disposed properly or handed over safely for example follow procedure when donating left over paint to charities. He is aware of types of paint and products that are environment friendly. His approach is to look at the overall big picture and conduct his work in a manner that is environment friendly and reflects good work ethics.
Mr Singh is a highly skilled worker, and he has developed his skills both at the job but also through his qualifications which contributes to his skill set and his value as an employee.
As outlined above, Mr Singh has skills and experience as a Painting Trades Workers and has studied the Certificate III in Painting and Decorating and the Diploma of Building and Construction (Building) which is highly relevant to his field as they both relate to Construction industry. Both courses relate to Construction industry and is a natural combination of courses to secure more senior and higher paying positions within the Construction industry (example senior supervising Painter Trades Person or Estimator for painting contracts) or to include any specialist field of work within a related construction context. The Australian Study requirements allows for a combination of qualifications to be used to meet the “Australian Study requirement”.
Painting Trades workers relates to the Construction Industry as a whole and the Diploma in Building and Construction is the natural progression in the area given there is no Diploma in Painting similar to the occupation of “Chefs” as pointed out earlier.
Diploma of Building and Construction (Building) CPC50210 is different to Diploma of Building and Construction (Management) CPC50308 and the course he has completed is highly relevant to Mr Dilraj Singh’s skill set as a Painting Trades Worker and therefore closely related to his nominated occupation.
I hereby request that the Tribunal consider all our previous submissions, the information and evidence provided at the Hearing, the above outlined information on units and submissions and consider Mr Dilraj Singh’ review application”
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 Tribunal is satisfied that the courses of instruction were conducted in the English language and at Australian registered institutions, with the last course of study, the Diploma Building and Construction (Building), being completed within six months of the application for the grant of a Subclass 485 (Temporary Graduate) visa.
The Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application. Therefore, the applicant meets cl.485.221.
The Tribunal is satisfied that Harwood International College – CRICOS Code: 03234B provides a registered course for the Diploma Building and Construction (Building).
The Tribunal is satisfied that the applicant completed in accordance with r.1.15F(2)) an assortment of courses of study in a total of at least 16 calendar months with completion of the Certificate III in Painting and Decorating at the Western Institute of Technology on 22 October 2017 and the Diploma Building and Construction (Building) at the Harwood International College on 27 May 2019 and that the qualifications gained were as a result of at least 2 academic years (as specified) study undertaken at an Australian Institution in the English language, whilst the holder of a Student visa.
The Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application. Therefore, the applicant meets cl.485.221.
Is the qualification ‘closely related’ to the nominated occupation?
The evidence provided by the applicant demonstrated that the primary qualification, as a Painter and Decorator, was undertaken by the applicant prior to further studies toward a Diploma of Building and Construction (Building) with a specific focus on enhancing the applicant’s knowledge toward the application of his trade skill in the workplace. In this regard, the Tribunal is satisfied that the Western Institute of Technology and the Harwood International College are accredited institutions for the purposes of IMMI 13/031.
Further, the Tribunal accepts that the Diploma of Building and Construction (Building) undertaken by the applicant as ‘closely related’ to the occupation of Painting Trades Worker – ANZSCO 332211, which has duties as set out in the following general descriptor:
“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:
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:
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.”
The Tribunal is satisfied that the completion of the Diploma of Building and Construction (Building) course, underpins the scope of work performed by the applicant in his application of his Painting Trade Worker skills.
The Tribunal is satisfied that the applicant has maintained a continuity of study that supports his occupation as a Painting Trades Worker – ANZSCO 332211 and that the substantial content of the studies undertaken by the applicant were ‘closely related’ for the purposes of the ANZSCO: 332211. In particular, the Diploma of Building and Construction (Building) qualification enables the applicant to perform his work within a high-end painting and decorating trade in a construction environment, at a professional level. In this regard, the Tribunal identified that the following subjects undertaken with the Diploma of Building and Construction (Building) to be closely related to the trade of Painting Trades Worker:
·CPCCOHS2001A Apply OHS requirements, policies and procedures in the construction industry
·BSBOHS504B Apply principles of OHS risk management
·BSBPMG505A Manage Project quality
·BSBPMG508A Manage Risk
·CPCCBC4001A Apply building codes and standards to the construction process for low rise building projects
·CPCCBC4004A Identify and produce estimated costs for building and construction projects
·CPCCBC4010B Apply structural principles to residential low rise constructions
·CPCCBC4012B Read and interpret plans and specifications
·CPCCBC5001B Apply building codes and standards to the construction process for medium rise building projects
·CPCCBC5002A Monitor costing systems on medium rise building and construction projects
·CPCCBC5009A Identify services layout and connection methods to medium rise construction projects
·CPCCBC5010B Manage construction work
·CPCCBC5011A Manage environmental management practices and processes in building and construction
·CPCCBC5018A Apply structural principles to the construction of medium rise buildings
The Tribunal is not satisfied that the following subjects, based upon the applied skills evidence in this case, which are managerial and not trade based from the evidence, are closely related to the occupation of Painting Trades Worker – ANZSCO 332211:
·CPCCBC4003A Select and prepare a construction contract
·CPCCBC4013A Prepare and evaluate tender documentation
·CPCCBC5007B Administer the legal obligations of a building or contruction contractor
·CPCCBC5003A Supervise the planning of on-site medium rise building or construction work
Overall, the Tribunal is satisfied that almost 80 per cent of the subjects included in this applicant’s Diploma of Building and Construction (Building) course are closely related to the nominated occupation of Painting Trades Worker – ANZSCO 332211.
On this basis, the Tribunal is satisfied that the major and substantial content of the course undertaken by the applicant is closely related to the nominated occupation.
The Tribunal, in determining whether the course undertaken by the applicant is ‘closely related’ to the descriptor for a Painting Trades Worker – ANZSCO 332211, is satisfied that the course of study undertaken by the applicant, in the broader context of the painting trades worker occupation can be viewed as ‘closely related’. In this regard, the Tribunal is guided by the decision of the Full Court in Talha v Minister for Immigration and Border Protection [2015] FCAFC 115 (25 August 2015) (Griffiths, Mortimer and Beach JJ), which includes the following:
“[53] Of course, it is ultimately a matter for the primary decision-maker and, on a statutory review, the Tribunal, to decide whether Mr Talha’s Australian studies are “closely related” to his nominated skilled occupation. But in carrying out the evaluative exercise it is critical that the whole of Mr Talha’s Australian studies be compared with the whole of his nominated occupation, as established in previous decisions of the Court, including Dhillon at [20] per Allsop CJ, Murphy and Pagone J, Constantino at [26] per Jacobson J and Bhanot at [29] per Perry J. As the Full Court stated in Dhillon at [20]:
The words “closely related” are not specifically defined in the Regulations or the relevant statutes but require, and call attention to, the connection between two things. The task to be undertaken to determine whether a qualification is “closely related” to a nominated occupation does not require the finding of an exact correspondence between the two but it does require “that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists”: Constantino v Minister for Immigration and Border Protection [2013] FCA 1301, [26]. That is what the Tribunal did. The Tribunal informed itself about the nature of the skilled occupation of pastry cook by considering the Australian Standard Classification of Occupations (ASCO) and compared that with the course content submitted by Mr Dhillon for the units undertaken by him in the business management course completed at the Nova Institute. At [91] the Tribunal considered that the requirement of a qualification being “closely related” to the nominated occupation required that the relationship between the skills gained in the qualification were more than merely complementary to the occupation or that the skills could be used in that occupation. The Tribunal did not ask itself an incorrect question when determining whether the qualifications relied upon by Mr Dhillon were closely related to his nominated profession of pastry cook (see Bhanot v Minister for Immigration and Border Protection [2014] FCA 848, [21], [24], [38]) and on the materials its finding was open to the Tribunal.

(Emphasis added).
The point of distinction between Dhillon and this proceeding is that the Tribunal here did not properly construe and apply the relevant parts of the ANZSCO Code which related to Mr Talha’s nominated skill occupation.”
The Tribunal finds that the applicant’s study for the specified qualification for the occupation of Painting Trades Worker – ANZSCO 332211, is supported by the attainment of both a Certificate III in Painting and Decorating and a Diploma of Building and Construction (Building) on the basis of the evidence provided to the Tribunal concerning the subject matters of both qualifications. In this regard, the Tribunal accepts that almost 80 per cent of the individual subjects undertaken in the Diploma of Building and Construction (Building) have provided the applicant with specific knowledge relevant to the performance of his trade, as supported by the applicant’s evidence. This includes: safety and risk management; interfacing with other trades groups within a single site construction zone; knowledge pertaining to compliance with legislative requirements within the industry; operational planning and invoicing, costing and financially controlling the execution of trade work.
The Tribunal notes that in Pasula v Minister for Immigration & Anor [2010] FMCA 219 - Smith FM said at [23]:
…. the relevance of a qualification for the purposes of Sch. 2 cl. 880.215 of the regulations [“closely related”] must relate to the nominated occupation itself, and not to some different occupational classification which might later be pursued by the visa applicant, and which would then involve use of the two qualifications.
As the applicant’s qualification is closely related to the nominated skilled occupation, the applicant meets cl.485.222.
Accordingly, cl.485.222 is met.
On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.221 and 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 criterion for a Subclass 485 visa:
·cl.485.221 of Schedule 2 to the Regulations; and
·cl.485.222 of Schedule 2 to the Regulations.
Warren Stooke AM
Member