Gondara (Migration)

Gondara (Migration) [2020] AATA 4599 (6 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jagdeep Singh Gondara
CASE NUMBER:  1912913
HOME AFFAIRS REFERENCE(S):          BCC2019/1149679
MEMBER:Warren Stooke AM
DATE:6 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 06 October 2020 at 4:59pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 – Australian study requirement – Painting Trades Worker – ANZSCO 332211 – Diploma of Building and Construction was not seen as related to his previous course – units from his Certificate III related to painting – course completed with registered provider – two courses undertaken at least 16 calendar months from 29 August 2016 to 9 February 2019 – qualifications gained result of at least 2 academic years at Australian Institution – decision under review remitted
LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, r 1.15F; Schedule 2, cls 485.221, 485.222
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 7 May 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 7 March 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 29 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 his Diploma of Building and Construction was not seen as related to his previous course and that his application was refused due to irrelevancy.
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 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 applicant stated that he is currently working with Decon Painting and Son, as a sub-contractor and that he commenced work with this business 2 weeks ago. It was also stated, by the applicant, that he previously worked with Kinbybrer Painting from 10 March 2019 until June 2020.
The applicant provided evidence that he holds an ABN: 59285237966 and that he is paid $30.00 per hour.
The applicant stated that the units from his Certificate III matches with the Diploma course, where they are both related to the field of painting, including OHS and application of the Australian standards and that all units of the Diploma course are related to the occupation.
The applicant was granted a Bridging Visa A on 7 March 2019, which is subject to condition 8501 to maintain health insurance. In this regard, the applicant submitted evidence of health insurance with BUPA that was commenced on 7 March 2019.
The applicant provided evidence that he undertook a Pearson English language test on 17 November 2018 and achieved a score of 52 overall.
The applicant provided evidence that he was provided with a successful skills assessment by Trades Recognition Australia on 15 November 2018.
The applicant provided evidence of the following completed courses of study under Australian qualifications:
oCertificate III in Painting and Decorating from 29 August 2016 to 17 November 2017;
oDiploma of Building and Construction (Building) from 20 November 2017 to 9 February 2019.
The applicant provided the Tribunal with a transcript for the Diploma of Building and Construction (Building) course, 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
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: (IMMI 09/040).
The Tribunal is satisfied that the courses of instruction were conducted in the English language and at an Australian registered institution, with the last course of study, the Diploma of Building and Construction (Building), being completed within six months of the application for the grant of a Subclass 485 (Temporary Graduate) visa.
The Tribunal is satisfied that Australian Industrial Systems Institute is a registered provider with a CRICOS Code: 02836D for the provision of Certificate III in Painting and Decorating and the Diploma of Building and Construction (Building) courses.
The Tribunal is satisfied that the applicant completed in accordance with r.1.15F(2)) the two courses of study in a total of at least 16 calendar months from 29 August 2016 to 9 February 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 Australian Industrial Systems Institute is an accredited institution for the purposes of IMMI 13/031.
Further, the Tribunal accepts that the Diploma of Building and Construction (Building) undertaken by the applicant was directly related to the occupation of Painting Trades Worker – ANZSCO 332211, which sets out the duties 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.”
Further, 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, 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, including 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.
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

[2020] AATA 4599

6 October 2020

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