Kim (Migration)

[2021] AATA 45

Kim (Migration) [2021] AATA 45 (5 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Chulseung Kim
Mrs Jina Lee
Master Sion Kim
Master Onyu Kim

CASE NUMBER:  1912182

HOME AFFAIRS REFERENCE(S):          BCC2019/1123326

MEMBER:Jennifer Cripps Watts

DATE:5 January 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 5 January 2021 at 11:00am

CATCHWORDS
MIGRATION – Skilled (Provision) (Class VC) visa – Subclass 485 (Temporary Graduate) – course of study closely related to nominated occupation – study package included trade and business qualifications – business qualifications and skills useful and complementary but not directly transferable to trade occupation – study package since renamed by education provider – members of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.15F(1), Schedule 2, cls 485.221, 485.222, 485.311

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 (the delegate) on 6 May 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 6 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 visas because the first named applicant (the applicant) did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant’s course of study, completed in the 6 months immediately before the visa application was made, was closely related to the nominated occupation of Wall and Floor Tiler, Australian and New Zealand Standard Classification of Occupations (ANZSCO) 333411.

4. The first and second-named applicants appeared before the Tribunal on 17 September 2020 to give evidence and present arguments.  The third and fourth-named applicants are their children.  The children did not attend the hearing.  The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision to refuse the visas should be affirmed.

   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 applied for the Subclass 485 visa that is the subject of this review in the nominated skilled occupation of Wall and Floor Tiler, Australian and New Zealand Standard Classification of Occupations (ANZSCO) 333411, ANZSCO Unit Group 3334.

   Does the applicant meet the Australian study requirement?

9. 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.

10. ‘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, as defined in the applicable instrument IMMI 19/085, being the duration of a course registered under the Education Services for Overseas Students Act 2000.

11. In support of the online visa application, the applicant provided evidence of having completed the following study, packaged by TAFE New South Wales, CRICOS provider number 00591E:

    a.Diploma of Business, from 23 July 2018 to 7 December 2018

    b.Certificate IV in New Small Business from 5 February 2018 to 22 June 2018

    c.Certificate III in Wall and Floor Tiling from 30 January 2017 to 8 December 2017

12. The visa application was lodged on 6 March 2019.  The Tribunal is satisfied that the applicant completed a Diploma of Business, packaged by TAFE NSW with the Certificates III/IV, on 7 December 2018, which is in the 6 months immediately before the application was made and:

    ·that it is a registered course as defined in r.1.03 of the Regulations,

    ·that was completed in a total of at least 16 calendar months,

    ·as a result of at least 2 academic years study, specified in Legislative Instrument 09/040 as ‘at least a total of 92 weeks’,

    ·for which all instruction was conducted in English; and

    ·that was undertaken while the applicant held a visa authorising study.

13. 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?

14. 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). The relevant instrument for this purpose is Legislative Instrument IMMI 18/051.  In this case, the applicant nominated the occupation of Wall and Floor Tiler 333411, which is a skilled occupation specified in IMMI 18/051.

15. It was explained at the hearing by the applicant’s migration agent that at the time the applicant commenced the Certificate III in Wall and Floor Tiling, in January 2017, it was packaged by TAFE NSW with the Certificate IV and the Diploma of Business (a total duration of 94 weeks).  The documentary evidence supports this.  He said that he was aware that it later became apparent to the education provider that the diploma was not considered specific enough and was causing issues for some wall and floor tiling international students with their visa applications.  As a result, what used to be called a Diploma of Business at TAFE NSW (packaged with the Certificate III in Wall and Floor Tiling and Certificate IV in New Small Business), has had a name change to a Diploma of Building and Construction (Building), packaged with the Certificates III and IV.  The Tribunal has referred to the CRICOS and confirmed that the Diploma of Building and Construction (Building) is a registered course that is currently listed, code 072913G, with a duration of 100 weeks.

16. The applicant submitted that when he enrolled in the Certificate III in Floor and Wall Tiling (and the certificate IV and diploma), in January 2017, he did so in good faith (to obtain relevant qualifications meeting the Australian study requirement, and in a course closely related to his nominated skilled occupation for the purpose of applying for a visa as a Floor or Wall Tiler when the courses were completed).  He said that he took the trouble to ensure that he enrolled in courses with a reputable education provider.  There is no doubt in the Tribunal’s mind that NSW TAFE is a reputable education provider and it is accepted that the applicant enrolled in the certificate III in Floor and Walling Tiling, Certificate IV in New Small Business and the Diploma of Business, as a package of courses.

17. The Tribunal has accepted that the courses were packaged for the purposes of the Australian study requirement, with the package of courses over a period of 2 academic years, from January 2017 to December 2018.  However, even though the three courses can be packaged by the educational institution for the purposes of the Australian study requirement, each of the courses relied on must be closely related to the nominated skilled occupation.  

18. The Tribunal has had regard to the ANZSCO, to assess whether the applicant’s qualifications, each of them individually, is closely related to the nominated skill occupation.  That is, whether a substantial proportion of the acquired skills (from his study) align with the nominated skills for a floor and wall tiler.

19. In the ANZSCO, it is included that the occupation of Floor or Wall Tiler, in Unit Group 3334, includes these tasks:

    • examining plans, measuring and marking surfaces and laying out work
    • preparing wall and floor surfaces by removing old tiles, grout and adhesive, filling holes and cracks, and cleaning surfaces
    • spreading adhesive onto prepared surfaces and tiles, and setting tiles in position
    • using tile-cutting tools to cut and shape tiles needed for edges and corners, and around objects such as fittings and pipes
    • ensuring tiles are correctly aligned and spaced
    • grouting tiles, and cleaning and removing excess grout
    • applying waterproofing systems
    • may lay floors of granolithic, terrazzo, cement or similar composition
    • may lay coloured tiles in patterns to create mosaics

    Is the Certificate III in Floor and Wall Tiling closely related?

20. From January to December 2017, the applicant undertook and completed the Certificate III in Floor and Wall Tiling.  The applicant provided a copy of his academic transcript which includes units of study including using tools and equipment, reading plans, handling materials, preparing surfaces, fixing tiles, repairing walls, declaration and mosaic tiling, and tiling curved surface and swimming pools. 

21. The Tribunal is satisfied that all the units of study in the certificate III course align with those indicated as usual tasks and duties for a floor and wall tiler in the ANZSCO and that the Certificate III in Floor and Wall Tiling is therefore closely related to the nominated skilled occupation.

    Are the Certificate IV in New Small Business and Diploma of Business each closely related?

22. Referring to documents provided by the applicant, including Confirmations of Enrolment, in 2018, the applicant’s second year at TAFE NSW, he completed the certificate IV in June and the diploma in December (around 6 months each).

23. The documentary evidence, the applicant’s oral evidence and other relevant matters, such as information in the ANZSCO, have been considered carefully with reference to the question of whether the Tribunal can be satisfied that the acquired skills in each of the certificate IV and diploma contains a substantial proportion of acquired skills that underpin, or are directly transferable to, the usual tasks and duties for the nominated skilled occupation.

24. A copy of the units of study for each of the certificate IV and diploma courses has been provided by the applicant.  While the Tribunal was mindful that the tasks and duties in the ANZSCO for a floor and wall tiler as set out above is not an exhaustive list, it is confined to, essentially, preparing plans and surfaces, measuring, cutting, shaping, waterproofing and laying tiles.  There is no reference, explicitly or even implicitly in the Tribunal’s view, to a floor and wall tiler undertaking tasks with the types of skills the applicant has acquired from the certificate IV and diploma qualifications.  This is not to say that the business, management, health and safety, marketing and other skills acquired are not useful.  However, for the skills to be closely related to the nominated skilled occupation they must be more than merely complementary or useful, in this case for a floor and wall tiler.

25. On the evidence provided, the Certificate IV in New Small Business completed by the applicant in June 2018 included the following units of study, completed by the applicant in June 2018:

    a.Coordinate implementation of customer service strategies

    b.Address customer needs

    c.Report on financial activity

    d.Promote innovation in a team environment

    e.Establish legal and risk management requirements of a small business

    f.Plan small business finances

    g.Market the small business

    h.Undertake small business planning

    i.Implement and monitor environmentally sustainable work practices

    j.Implement and monitor WHS policies, procedures and programs

26. The Diploma of Business completed by the applicant on 15 December 2018 included:

    a.Manage budgets and financial plans

    b.Manage human resource services

    c.Manage recruitment selection and induction processes

    d.Manage workforce planning

    e.Establish and adjust marketing mix

    f.Implement and monitor marketing activities

    g.Undertake project work

    h.Manage risk

27. The Tribunal is not satisfied that a significant proportion, or even a small proportion, of the skills acquired by the applicant, through the units of study completed, underpin those required to undertake the nominated skilled occupation of floor and wall tiler

28. It is acknowledged, as submitted, that when the applicant enrolled in the courses described above, he was informed and advised by TAFE NSW that the packaged courses were ‘a vocational pathway’ for the occupation of wall or floor tiler.  It is accepted that the applicant thought that the two years of study in these three packaged courses would enable him to meet the relevant criteria in a Subclass 485 visa application.  It is also accepted that TAFE offered no stand-alone 2 year course in wall and floor tiling, for the purpose of meeting the Australian study requirement.  It is also acknowledged that the applicant completed some of the assignments in the certificate IV and diploma courses focusing on the wall and floor tiling industry.

29. Unfortunately this is not a case where the Tribunal can be satisfied that a ‘substantial proportion’ of the skills acquired by the applicant in each of the Certificate IV in New Small Business and Diploma of Business are directly transferrable to the skills required to carry out the skilled occupation of floor and wall tiler.  At best, it is the Tribunal’s view that a minor or small proportion of the skills acquired would be no more than merely useful to a floor and wall tiler. 

30. The Tribunal finds that the Certificate III in Floor and Wall Tiling is closely related to the nominated skilled occupation.  However, for the reasons given, the Tribunal is not satisfied that the Certificate IV in New Small Business and Diploma of Business are closely related to the nominated skilled occupation.

31. As the three qualifications, which together meet the Australian study requirement, are not all individually closely related to the nominated skilled occupation, the applicant does not meet cl.485.222.

32. 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.

    Secondary applicants

33. The Tribunal has affirmed the decision to refuse the applicant’s visa.  There is no evidence before the Tribunal that the second, third and fourth-named applicants are members of the family unit of, and made a combined application with, a person who holds a Subclass 485 visa granted on the basis of satisfying the primary criteria.

34. For this reason, the secondary applicants do not meet the secondary criteria:  cl.485.311 

    DECISION

35. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

    Jennifer Cripps Watts
    Member