Faisal (Migration)

[2018] AATA 5348

Faisal (Migration) [2018] AATA 5348 (30 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Faisal

CASE NUMBER:  1712592

HOME AFFAIRS REFERENCE(S):           BCC2017/1616498

MEMBER:Jennifer Cripps Watts

DATE:30 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 30 October 2018 at 1:34pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Motor Mechanic (General) – Australian study requirement – Diploma of Leadership and Management – qualification closely related to nominated skilled occupation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 485.221, 485.222, 485.231

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 and Border Protection on 25 May 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 applied for the visa on 5 May 2017. 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.485.231 of Schedule 2 to the Regulations because the delegate was not satisfied that the qualifications were completed in the last 6 months ending immediately before the day the visa application was made and that the qualifications were closely related to the nominated occupation of Motor Mechanic (General) ANZSCO 321211. Therefore the applicant did not meet cl.485.221 and did not meet cl.485.222.

4. The applicant appeared before the Tribunal on 30 October 2018 to give evidence and present arguments.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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). He must meet both.

7. The applicant is a citizen of Pakistan.  He gave evidence at the hearing that he first came to Australia as a student in 2012.  He commenced work with White Horse Auto Care, employed under the Vehicle Repair Award (according to his payslips) in 2017.  In a reference from the owner of the business, Mr Syed Shafiq Rehman, dated 22 October 2018, it is stated that the applicant works a supervisor at White Horse Auto Care.

8. The applicant lodged his 485 Graduate Work stream visa (that was refused and is the subject of this review) on 5 May 2017 and declared his nominated skill as Motor Mechanic (General) ANZSCO 321211.  He provided evidence of having completed the following courses in support of the application:

   a.Diploma of Leadership and Management, 11/01/2016 to 08/01/2017

   b.Certificate IV in Business, 18/05/2015 to 15/11/2015

   c.Certificate IV Automotive Mechanical Diagnosis, 10/11/2014 to 10/05/2015

   d.Diploma of Automotive Management, 01/12/2013 to 14/09/2014

   e.Certificate III Automotive Mechanical Technology, 01/12/2012 to 15/12/2013

9. It is accepted that the three automotive courses above, the last of which was completed in 2015, are closely related to the nominated skill of Motor Mechanic (General).  The applicant is seeking to rely on the Diploma of Leadership and Management, which was completed on 8 January 2017, to meet the Australian study requirements.  That is, a course that he completed in the 6 months before the visa application was made on 5 May 2017.

10. The Tribunal has considered all the evidence provided, including the documentary evidence and the oral evidence given by the applicant at the hearing.  It was discussed with the applicant what duties he performs in his job.  He said that he considers the management or business qualifications that he has are useful to him in his current job where he performs management and supervisory duties and also to his goal of some day running his own automotive business.  Effectively, together with the automotive qualifications and experience, he contends the business qualifications (together with his automotive qualifications) will enhance his prospects of future career success.  The Tribunal accepts this is likely to be the case if he follows through on his plan to open his own automotive business. 

11. The ANZSCO description for the nominated occupation of Motor Mechanic (General) is as follows:

    ‘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.

    Tasks Include:

    odetecting and diagnosing 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’

12. On the evidence before it, the Tribunal accepts that the applicant performs these duties as part of his current position at White Horse Auto Care.  However, he is employed as a supervisor at White Horse Auto Care in Burwood, Victoria, (on his own oral evidence and the written reference he provided from the owner of the business) and he also gave evidence that he supervises and manages staff.  There is no reference to managing or supervising staff being part of the ANZSCO description for the nominated occupation of Motor Mechanic (General). 

13. While it may be the case that business skills would be useful to have to run or manage a motor mechanic business, or to work as a supervisor of mechanics or trainee mechanic or automotive workers, Departmental policy gives guidance on what the critical factor is in determining whether a qualification is closely related to the nomination skilled occupation.  Closely related is not defined, but, relevantly, it is stated in PAM3 that:

    ‘Under policy, circumstances of a qualification not being closely related to the nominated occupation include where:

    oThe qualification is not related to the nominated skilled occupation … (where) the level at which the skills were obtained is inconsistent with the level at which the applicant is skilled to work’.

14. An example that is included in PAM3 is where an:

    o‘…applicant met the Australian study requirement on the basis of having a Certificate III in Carpentry completed one year prior and later studied a Diploma of Business and completed it within 6 months of lodgement. They nominate ‘carpenter’ for their nominated occupation and use their Certificate III in Carpentry to satisfy the skills requirement.  Their skills assessment does not give recognition to their business qualifications.  As the Diploma of Business does not assist the applicant to obtain an entry level Carpenter position, it cannot be considered as ‘closely related’ to the nominated occupation.’

15. While the qualification in Leadership and Management in relation to the applicant in this review is a qualification that is regarded by him as relevant or useful in terms of doing his current job as a supervisor motor mechanic and may also be relevant to his future career aspirations, it is not relevant for the purpose of him meeting the closely related criterion for the grant of the visa for the nominated occupation.  That is, the Leadership and Management qualification would not assist an applicant to get a job as a Motor Mechanic (General). 

16. Clause 485.222 requires the qualification, relevantly that of Diploma in Leadership and Management which was completed within the 6 months prior to application, to be closely related to the applicant’s nominated skilled occupation.

17. In this case, the applicant nominated the skilled occupation of Motor Mechanic (General) ANZSCO 321211.

18. As the Tribunal is not satisfied that the applicant’s qualification is closely related to the nominated skilled occupation, the applicant does not meet cl.485.222.

19. 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

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

    Jennifer Cripps Watts
    Member