Kaur (Migration)

Kaur (Migration) [2022] AATA 2988 (26 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Satnam Kaur
Mr Gurinderjit Singh
CASE NUMBER:  1922457
HOME AFFAIRS REFERENCE(S):          BCC2019/2946874
MEMBER:Warren Stooke AM
DATE:26 July 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criterion 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 26 July 2022 at 12:15pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – courses closely related to skilled occupation – occupation of Carpenter – Australian study requirement – studies in Building and Construction (Building) – courses completed within 6 months before visa application – continuity of study that supports the occupation – decision under review remitted
LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.111, 485.221, 485.222, 485.311; rr 1.03, 1.15
CASES
Bhanot v Minister for Immigration and Border Protection [2014] FCA 848
Constantino v Minister for Immigration and Border Protection [2013] FCA 1301
Talha v Minister for Immigration and Border Protection [2015] FCAFC 115 (25 August 2015)
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 12 August 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 10 June 2019. Visa Class VC contains Subclass 485 (Temporary Graduate). 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 visas on the basis that the first named applicant (the applicant) did not satisfy cl 485.221 of Schedule 2 to the Regulations because the Certificate IV in Building and Construction (Building) was not considered as closely related to the nominated occupation of Carpenter – ANZSCO Code: 331212.
The applicants appeared before the Tribunal on 19 July 2022 to give evidence and present arguments.
The applicant stated that she had received and read the delegate’s decision concerning her visa application and provided a copy of the decision to the Tribunal with her application for review by the Tribunal.
The applicant stated that she understood her visa application was refused because her course of study was not closely related to her carpentry.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Clause 485.221 requires the applicant to hold a qualification or qualifications of a kind specified by the Minister, conferred or awarded by an educational institution specified by the Minister, for which the applicant’s study must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made. The issue in the present case is whether the applicant meets those requirements.
The applicant is a 39 year old from India, who was granted a Bridging Visa A on 10 June 2019 that became effective on 9 July 2019 upon the cessation of her Student Visa. The Bridging Visa contains condition 8501 to maintain health insurance.
The applicant provided evidence that she has 2 children residing in India, a 13 year old daughter and 10 year old son, whom she visited in March-April 2022.
The applicant provided evidence of health insurance with IMAN that commenced on 10 July 2019 at a cost of $226.23 per month.
The applicant provided evidence of an AFP Police check that was confirmed as satisfying a non-disclosed criminal record dated 7 July 2019.
The applicant provided evidence of undertaking an English language PTE test on 2 May 2019 with a score of 50.
The applicant provided evidence from Trades Recognition Australia for the nominated occupation of Carpenter – ANZSCO Code: 331212, which was declared as successful on 7 August 2019.
The applicant provided evidence of completion of the following courses of study:
a.Certificate III in Carpentry undertaken at Della International College - CRICOS 091404D from 26 January 2017 to 22 February 2019.
b.Certificate IV of Building and Construction (Building) undertaken at Australian Industrial Systems Institute - CRICOS 02838D from 9 July 2018 to 6 April 2019.
The applicant provided evidence that she is currently working in the domestic building industry, as a carpenter, for Dream Homes in Adelaide and was employed in June with this company on a part-time basis of 20 hours per week. The applicant stated that she earns $29.00 per hour.
The applicant provided evidence that the following modules were completed in the Certificate IV of Building and Construction (Building) course:
a.Plan small business finances
b.Undertake small business planning
c.Manage small business finances
d.Apply building codes and standards to the construction process for low rise building projects
e.Manage work occupational health and safety in the building and construction workplace
f.Select, prepare and administer a construction contract
g.Identify and produce estimated costs for building and construction projects
h.Produce labour and material schedules for ordering
i.Select, procure and store construction materials for building and construction projects
j.Plan building or construction work
k.Conduct on-site supervision of building and construction projects
l.Apply legal requirements to building and construction projects
m.Apply structural principles to residential and commercial constructions
n.Apply structural principles to residential and commercial constructions
o.Read and interpret plans and specifications
p.Prepare to work safely in the construction industry
The applicant provided evidence that she possesses a ‘White Card’ that permits work in the construction industry.
The applicant stated that she regularly attends ‘tool-box’ meetings with the project management and other trades.
The applicant provided evidence that she has undertaken courses to work at heights and that OHS is the first priority on the job site, including the wearing of PPE (Gloves and glasses) and the use of nail guns.
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 regs 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 (reg 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: LIN 19/085.
The applicant completed a Certificate III in Carpentry at Della International College - CRICOS 02716C and course 091404D from 26 January 2017 to 22 February 2019; and a Certificate IV of Building and Construction (Building) at the Australian Industrial Systems Institute - CRICOS 02838D from 9 July 2018 to 6 April 2019. As such, the Tribunal is satisfied that the courses undertaken have met r.1.03 of the Regulations.
Further, the courses undertaken (as defined: r.2.26AC(6)) were completed in the 6 months immediately before the application for the visa was made with a minimum of 92 weeks of study.
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 finds that the applicant’s study for the specified qualification satisfied the Australian study requirement in the 6 months immediately before the date of the visa application.
Accordingly, cl 485.221(3) is met.
Is the qualification ‘closely related’ to the nominated occupation?
The evidence provided by the applicant demonstrated that the primary qualification, as a Carpenter, was undertaken by the applicant prior to further studies toward a Certificate IV of Building and Construction (Building) with a specific focus on enhancing the applicant’s knowledge toward the application of her trade skill in the workplace. In this regard, the Tribunal is satisfied that the Australian Industrial Systems Institute (CRICOS 02838D) is an accredited institution for the purposes of IMMI 13/031.
Further, the Tribunal is satisfied that the completion of the Certificate IV of Building and Construction (Building), that included the following subjects underpins the scope of work performed by the applicant in the application of her Carpentry skills:
a.Apply building codes and standards to the construction process for low rise building projects
b.Manage work occupational health and safety in the building and construction workplace
c.Identify and produce estimated costs for building and construction projects
d.Produce labour and material schedules for ordering
e.Select, procure and store construction materials for building and construction projects
f.Plan building or construction work
g.Conduct on-site supervision of building and construction projects
h.Apply legal requirements to building and construction projects
i.Apply structural principles to residential and commercial constructions
j.Apply structural principles to residential and commercial constructions
k.Read and interpret plans and specifications
l.Prepare to work safely in the construction industry
The Tribunal is not satisfied that the following subjects included in the Certificate IV of Building and Construction (Building) are ‘closely related’ to the nominated occupation of Carpenter – ANZSCO 331212:
a.Plan small business finances
b.Undertake small business planning
c.Manage small business finances
d.Select, prepare and administer a construction contract
Further, on the basis of the evidence provided by the applicant, the Tribunal accepts that the Certificate IV of Building and Construction (Building) undertaken by the applicant was closely related to the occupation of Carpenter: ANZSCO Code 331212, which sets out the duties in the following general descriptor:
UNIT GROUP 3312 CARPENTERS AND JOINERS
CARPENTERS AND JOINERS construct, erect, install, renovate and repair structures and fixtures made of wood, plywood, wallboard and other materials, and cut, shape and fit timber parts to form structures and fittings.
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:
ostudying drawings and specifications to determine materials required, dimensions and installation procedures
oordering and selecting timbers and materials, and preparing layouts
ocutting materials, and assembling and nailing cut and shaped parts
oerecting framework and roof framing, laying sub-flooring and floorboards and verifying trueness of structures
onailing fascia panels, sheathing roofs, and fitting exterior wall cladding and door and window frames
oassembling prepared wood to form structures and fittings ready to install
ocutting wood joints
omay construct concrete formwork
omay repair existing fittings
omay work with plastic laminates, perspex and metals
Occupations:
331211 Carpenter and Joiner
331212 Carpenter
331213 Joiner
331212 CARPENTER
Constructs, erects, installs, renovates and repairs structures and fixtures of wood, plywood, wallboard and other materials. Registration or licensing may be required.
Skill Level: 3
Specialisations:
Fixing Carpenter
Formwork Carpenter
Prop and Scenery Maker
The Tribunal is satisfied on the evidence that the applicant has maintained a continuity of study that supports her occupation as a Carpenter: ANZSCO Code 331212 and that the substantive majority of the subjects undertaken by the applicant, at 75 per cent, in the Certificate IV of Building and Construction (Building) were ‘closely related’ for the purposes of the ANZSCO: 331212. In particular, the Carpenter: ANZSCO Code 331212 qualification enables the applicant to perform her work within a high-end carpentry trade building environment, at a competent level.
The Tribunal finds that the applicant’s study for the specified qualification for the occupation of Carpenter: ANZSCO Code 331212, is supported by the attainment of both a Certificate III in Carpentry and the Certificate IV of Building and Construction (Building) on the basis of the evidence provided to the Tribunal concerning the subject matter of the qualification. In this regard, the Tribunal accepts that 75 per cent of the individual subjects undertaken in the Certificate IV of Building and Construction (Building) have provided the applicant with specific knowledge relevant to the performance of her trade, including safety and risk management; interfacing with other trades groups within a single site building or construction zone; knowledge pertaining to compliance with legislative requirements within the industry; operational planning and material budgeting, costing and delivering quality to the customer in the execution of the trade work.
The Tribunal, in determining whether the course undertaken by the applicant is ‘closely related’ to the descriptor for a Carpenter: ANZSCO Code 331212, is satisfied that the course of study undertaken by the applicant, in the broader context of the carpentry trade 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.”
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.
Further, on the basis that the primary applicant has met the requirements for the grant of a 485 visa, it follows that the secondary applicant, as a member of the family unit of the primary applicant, has met cl.485.311 for the grant of a 485 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

[2022] AATA 2988

26 July 2022

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