Fumagalli (Migration)

[2021] AATA 739

Fumagalli (Migration) [2021] AATA 739 (17 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Davide Fumagalli

CASE NUMBER:  1928378

HOME AFFAIRS REFERENCE(S):          BCC2019/3491636

MEMBER:Michelle East

DATE:17 March 2021

PLACE OF DECISION:  Perth

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 17 March 2021 at 3:46pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement – qualification closely related to nominated occupation – business management tasks carried out by sole trader/subcontractor skilled tradesman – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 1.15F(1), Schedule 2, cls 485.221, 485.222

CASES
Constantino v MIBP [2013] FCA 1301
MIBP v Dhillon (2014) 227 FCR 525
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 24 September 2019 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 12 July 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.

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 applicant’s qualification of a Certificate IV in Business was closely related to his nominated occupation of Carpenter (ANZSCO 331212).

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

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   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 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?

7. 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.

8. ‘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.

9. The applicant has provided evidence that he has completed a Certificate III in Carpentry from Everthought College of Construction on 25 June 2018 and a Certificate IV in Business from the Australian Institute of Language and Further Education on 20 June 2019.  The applicant also provided a successful skills assessment for the occupation of Carpenter from Trades Recognition Australia (TRA).

10. Based on the evidence provided on the website of the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS), the Tribunal finds that the duration of the Certificate III in Carpentry is 104 weeks.

11. The Certificate IV in Business was a CRICOS registered course although it is no longer registered, as its registration was superseded after the applicant completed the course.  It appears that the course was of 30 weeks duration and taught 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 consistent with the relevant instrument, the Tribunal is not satisfied that relying on his Certificate IV in Business alone would satisfy the ‘Australian study’ requirement in the 6 months immediately preceding the day he made his visa application.

13. The ‘Australian study’ requirement does not require visa applicants to have completed a single course of study of 2 academic years’ duration.  The evidence before the Tribunal is that the applicant completed a Certificate IV in Business of 30 weeks together with a Certificate III in Carpentry with a course duration of 104 weeks.  Accordingly, the Tribunal finds that the registered courses undertaken by the applicant have a total registered duration in excess of the requisite 92 weeks.

14. The Tribunal finds that the qualifications were a result of courses that were completed in a total of at least 16 calendar months and as a result of at least 2 academic years (as specified) study.  The Tribunal finds on the information before it that all instruction for the courses was conducted in English and that the applicant held a number of student visas which authorised study throughout this period.

15. 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?

16. In addition, cl.485.222 requires each qualification used to satisfy that 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).

17. In this case, the applicant nominated the occupation of Carpenter which is a skilled occupation specified in LIN 19/051.  The issue, therefore, is whether the applicant’s qualifications are ‘closely related’ to his skilled nomination.

18. 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 (2014) 227 FCR 525 and Talha v MIBP [2015] FCAFC 115 as well as the Federal Court of Australia in its decision in Constantino v MIBP [2013] FCA 1301. The Tribunal has been guided by these cases in its consideration of the issue presented in the applicant’s case.

19. 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 two things.  Although the words ‘closely related’ do not require an exact correspondence, the relationship must be more than merely complementary.

20. In making the assessment, the Tribunal has considered the nature of the nominated occupation as determined by reference to the Australian and New Zealand Standard Classification of Occupations (ANZSCO) and has read the ANZSCO as a whole with a view to identifying and applying information which is relevant to an understanding of the whole of the requirements of the nominated occupation.

21. The Statement of Results provided for the applicant’s Certificate IV in Business demonstrate his competency in the following units:

    Make a presentation

    Design and develop complex text documents

    Identify risk and apply risk management processes

    Implement and monitor WHS policies, procedures and programs to meet legislative requirements

    Coordinate implementation of customer service strategies

    Address customer needs

    Develop work priorities

    Support the recruitment, selection and induction of staff

    Promote products and services

    Undertake project work

22. The ANZSCO descriptor of Carpenter is listed as ‘Constructs, erects, installs, renovates and repairs structures and fixtures of wood, plywood, wallboard and other materials.’

23. The applicant has submitted that ‘higher level business tasks are carried out by sole trader or subcontractor carpenters who effectively manage their own business, lead a team and liaise directly with all relevant parties and trades.  It is the Applicant’s goal to be a self-employed, subcontractor Carpenter, which is extremely common for this occupation…’

24. The Tribunal accepts that Carpenters frequently work as a sole trader (subcontractor) which requires more than simply having the technical tools to perform their trade.

25. The Tribunal further accepts that Carpenters would be required to prepare documents such as quotes, invoices, project details and scheduling.  Identifying risk and applying risk management processes are also accepted by the Tribunal as relevant to not only Carpenters but also trades in the construction industry.

26. From a business perspective, the Tribunal accepts the need for a Carpenter business owner to be aware of customer service, needs, job priorities and promotion of their product and services.

27. As stated above, the Tribunal accepts that Carpenters frequently operate as sole traders.  It also accepts that more than a knowledge of trade skills is required to do so effectively and safely.

28. The Tribunal therefore finds that the applicant’s Certificate IV in Business has given him the skill set necessary to perform work as a Carpenter sole trader.  Based on this, the Tribunal finds that the applicant’s qualification used to satisfy the Australian study requirement is closely related to his nominated skilled occupation of Carpenter.

29. As each qualification used to satisfy the Australian study requirement is closely related to the nominated skilled occupation, the applicant meets cl.485.222.

30. 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

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

    ·cl.485.222 of Schedule 2 to the Regulations.

    Michelle East
    Member