Ihalawele Gedara (Migration)

[2020] AATA 5085

Ihalawele Gedara (Migration) [2020] AATA 5085 (28 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Srinath Sanjaya Kumarasinghe Ihalawele Gedara

CASE NUMBER:  1913454

HOME AFFAIRS REFERENCE(S):          BCC2019/1265407

MEMBER:Warren Stooke AM

DATE:28 August 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 28 August 2020 at 9:37am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Australian study requirement met – qualification was not closely related to the nominated occupation –decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.15, 1.03, 2.26, Schedule 2, cls 485.221, 485.222

Education Services for Overseas Students Act 2000

CASES

Tobon v Minister for Immigration & Anor (2014) FCCA 2208

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 20 May 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 13 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.

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 the courses of study prior to the application of the 485 visa were not closely related to the occupation of Motor Mechanic (General) - ANZSCO Code 321211.

4. The applicant appeared before the Tribunal on 19 August 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

5. At the commencement of the hearing, the Tribunal confirmed that the applicant had read the delegate’s decision of 20 May 2019 and that he understood the content of the decision. In this regard, the applicant stated that the decision referred to the Advanced Diploma of Leadership and Management and the Diploma of Leadership and Management is not related to his previous course.

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

   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 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.

8. The applicant is a 35 year old from Sri Lanka, who provided evidence that he arrived in Australia in October 2008 and that he has completed the following courses of study:

   a.Certificate III in Automotive – Mechanical from 10/03/2010 to 30/03/2011;

   b.Diploma of Business from 01/04/2011 to 31/05/2011;

   c.Diploma of Management from 01/06/2011 to 30/07/2011;

   d.Certificate IV in Business from 01/09/2011 to 30/03/2012;

   e.Certificate III in Automotive - Electrical Tech from 01/04/2012 to 20/08/2012;

   f.Certificate IV of Automotive Technology from 26/09/2012 to 07/04/2013;

   g.Diploma of Automotive Technology from 14/04/2013 to 30/12/2013;

   h.Diploma of Leadership and Management from 05/02/2018 to 18/02/2018;

   i.Advanced Diploma of Leadership and Management from 15/01/2018 to 13/01/2019.

9. The applicant provided the Department with transcripts for the Diploma of Leadership and Management and the Advanced Diploma of Leadership and Management, which included the following subjects:

   Diploma of Leadership and Management

   ·Develop and use emotional intelligence;

   ·Lead and manage effective workplace relationship;

   ·Manage operational plan;

   ·Lead and manage team effectiveness;

   ·Manage meetings;

   ·Manage an information or knowledge management system;

   ·Develop a workplace learning environment;

   ·Plan and manage the flexible workforce;

   ·Undertake project work;

   ·Manage risk;

   ·Develop a sales plan;

   ·Ensure a safe workplace.

   Advanced Diploma of Leadership and Management

   ·Develop a marketing plan;

   ·Manage finances;

   ·Contribute to organisational development;

   ·Manage knowledge and information;

   ·Provide leadership across the organisation;

   ·Plan and establish compliance management system;

   ·Optimise customer engagement operations;

   ·Define recordkeeping framework;

   ·Lead and manage organisational change;

   ·Develop and implement business plan;

   ·Manage Human Resource strategic planning;

   ·Manage customer engagement information.

10. The applicant provided evidence that he is currently employed at Desire Automotive Hallam, where he has worked since July 2019.

11. The applicant stated that he is employed full-time and is paid a weekly wage of $727.00 (after tax).

12. The applicant provided evidence that his duties include, suspension, servicing work and mechanical repairs and that he also relieves the owner.

13. The applicant stated that the workshop has two employees, which includes himself and a volunteer and that the business does not have enough work at the moment.

14. The Tribunal asked the applicant when he intended to return to Sri Lanka and he responded that he was not sure because of this crisis (Covid-19 Pandemic).

15. The Tribunal asked the applicant how the Diplomas in Leadership and Management are ‘closely related’ to the nominated occupation of Motor Mechanic (General) and the applicant responded: “I just want to run a business and we need a market plan”. The applicant also stated that he needed to keep records and to think about the customer and that it was essential to study these subjects.

16. The applicant provided evidence that he had worked in the automotive sector for 2 years and that he then recalled that he needed leadership skills for a dealership proper job.

17. The applicant stated that he was subject to student visas prior to his application and that he was working under a 457 visa from 2014 to 2016, however, the employer was investigated for underpayment, which led to the withdrawal of sponsorship and he stated that if he learnt more he would be able to go for a dealership.

18. The Tribunal noted to the applicant that temporary visas are intended to provide experience in the trade.

    Does the applicant meet the Australian study requirement?

19. 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.

20. ‘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, the applicant requires the completion of a course(s) registered under the Education Services for Overseas Students Act 2000 (IMMI 09/040).

21. The Tribunal notes that the applicant’s study for the specified qualification for the occupation of Motor Mechanic (General) - ANZSCO Code 321211, has been claimed to include the completion of:

    a.Certificate III in Automotive – Mechanical from 10/03/2010 to 30/03/2011;

    b.Diploma of Business from 01/04/2011 to 31/05/2011;

    c.Diploma of Management from 01/06/2011 to 30/07/2011;

    d.Certificate IV in Business from 01/09/2011 to 30/03/2012;

    e.Certificate III in Automotive - Electrical Tech from 01/04/2012 to 20/08/2012;

    f.Certificate IV of Automotive Technology from 26/09/2012 to 07/04/2013;

    g.Diploma of Automotive Technology from 14/04/2013 to 30/12/2013;

    h.Diploma of Leadership and Management from 05/02/2018 to 18/02/2018;

    i.Advanced Diploma of Leadership and Management from 15/01/2018 to 13/01/2019.

22. The Tribunal finds that these courses were completed within six months prior to lodgement of the application.

23. On this basis, 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 has met cl.485.221.

24. Accordingly, the Tribunal is satisfied that the applicant has met cl.485.221.

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

25. In addition, cl.485.222 requires the qualification used to satisfy that requirement to be 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).

26. In this case, the applicant nominated the occupation of Motor Mechanic (General) - ANZSCO Code 321211, which is a skilled occupation specified in the Legislated Instrument - Skilled visas (IMMI 16/059 Schedule 1, which commenced on 1 July 2016).

27. The evidence provided by the applicant demonstrated to the Tribunal that the primary qualification, as a Motor Mechanic (General), was undertaken by the applicant through completion of the following qualifications:

    ·    Certificate III in Automotive – Mechanical from 10/03/2010 to 30/03/2011;

    ·    Certificate IV of Automotive Technology from 26/09/2012 to 07/04/2013;

    ·    Diploma of Automotive Technology from 14/04/2013 to 30/12/2013;

28. Further, the Tribunal does not accept that the completion of a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management or Diplomas and Certificates in Business and Management are courses of study that are ‘closely related’ to the occupation of Motor Mechanic (General) - ANZSCO Code 321211 provided in the following descriptor for the occupation:

    UNIT GROUP 3212 MOTOR MECHANICS

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

    Motor Vehicle Parts and Accessories Fitters are excluded from this unit group. Motor Vehicle Parts and Accessories Fitters are included in Unit Group 8994 Motor Vehicle Parts and Accessories Fitters.

    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:

    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

    
    Occupations:

    321211 Motor Mechanic (General)
    321212 Diesel Motor Mechanic
    321213 Motorcycle Mechanic
    321214 Small Engine Mechanic

    
    321211 MOTOR MECHANIC (GENERAL)

    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.

    Skill Level: 3

    Specialisations:

    Automatic Transmission Mechanic
    Automotive Airconditioning Mechanic
    Brake Mechanic
    Ground Support Equipment Fitter (Air Force)
    Marine Technician (Navy)
    Vehicle Mechanic (Army)

29. Specifically, the Tribunal finds that the Advanced Diploma of Leadership and Management, which was undertaken immediately prior to application and that comprised 12 subjects, has only one subject that could be potentially identified as ‘closely related’ and as having some application to the trade skill of the occupation and this includes:

    ·     Manage customer engagement information

30. Additionally, the Tribunal finds that the Diploma of Leadership and Management, that comprised 12 subjects, has only two subjects that could be potentially identified as ‘closely related’ and as having any application to the trade skill of the occupation.

    ·Manage risk;

    ·Ensure a safe workplace.

31. On the basis that not more than 8.3 per cent of the content of the Advanced Diploma of Leadership and Management course, undertaken by the applicant, has any potential relationship to the trade of Motor Mechanic (General), the Tribunal finds that this non-automotive course used to support the application not to be ‘closely related’ to the trade occupation of Motor Mechanic (General) - ANZSCO Code 321211.

32. Similarly, on the basis that not more than 16.7 per cent of the content of the Diploma of Leadership and Management course, undertaken by the applicant, has any potential relationship to the trade of Motor Mechanic (General), the Tribunal finds that this non-automotive course used to support the application not to be ‘closely related’ to the trade occupation of Motor Mechanic (General) - ANZSCO Code 321211.

33. Further, the Tribunal acknowledges that the knowledge gained through the study of the a Diplomas of Leadership and Management would be useful to a future business opportunity, however, the applicant does not require such academic training to undertake the trade based skilled occupation of  Motor Mechanic (General) - ANZSCO Code 321211, as the core activities relating to the provision of the trade skill are already contemplated within the core modules provided through the automotive Certificate and Diploma of Technology course undertaken by the applicant. As such, the Tribunal does not accept that the business, leadership and management studies that provide a significant emphasis on business related disciplines is required to exercise the basic trade skills, as a Motor Mechanic (General).

34. The Tribunal, in determining whether the non-automotive Diplomas and Certificate courses undertaken by the applicant are ‘closely related’ to the occupation of Motor Mechanic (General) - ANZSCO Code 321211, is not satisfied, in the broader context of the trade occupation, that the study of Diplomas in Leadership and Management and the prior Business and non-automotive Certificate courses are required. 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.”

35. Further, the Tribunal is guided by Tobon v Minister for Immigration & Anor (2014) FCCA 2208 (26 September 2014) - “That a diploma results in conferring skills, all or a substantial part of which form part of the skill set of the nominated occupation, is sufficient to establish a close relation between the diploma and the nominated skilled occupation. [paragraph 37,39]” In this context, this principle applies in relation to the occupation of Motor Mechanic (General) and the corresponding ANZSCO descriptor, as the Tribunal does not accept that Diplomas in Leadership and Management and the other Business, Management and non-automotive Certificate courses form all or a substantial part  of the skill set of the occupation of Motor Mechanic (General). The Tribunal finds that the applicant’s study for these specified qualifications has not satisfied the Australian study requirement to support the visa application, as the two years of academic study, immediately prior to application for the occupation of Motor Mechanic (General) - ANZSCO Code 321211 relies upon courses of study that are not ‘closely related’.

1. As the qualifications relied upon by the applicant are not all ‘closely related’ to the nominated skilled occupation, the applicant does not meet cl.485.222.

2. 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

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

   Warren Stooke AM
   Member