Kuai (Migration)

[2021] AATA 3449

Kuai (Migration) [2021] AATA 3449 (30 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Zeming Kuai
Ms Yi-Syuan Chen

CASE NUMBER:  1821510

HOME AFFAIRS REFERENCE(S):          BCC2018/3760977

MEMBER:Ian Berry

DATE:30 August 2021

PLACE OF DECISION:  Brisbane

DECISION:In relation to the first named applicant, the Tribunal affirms the decision, not to grant the applicant’s Skilled (Provisional) (Class VC) visa.

In relation to the second named applicant, the Tribunal has no jurisdiction concerning her Skilled (Provisional) (Class VC) visa.

Statement made on 30 August 2021 at 10:59am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – occupation of Locksmith – Australian study requirement – two academic years of relevant study – courses completed within 6 months before visa application – courses closely related to skilled occupation – relationship between management skills and locksmith occupation – course competencies unrelated to occupation – decision under review affirmed

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.221, 485.222; rr 1.03, 1.15

CASES

Talha v MIBP [2015] 235 FCR 100

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 13 July 2018 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 13 June 2018. 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 (Cth) (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 applicant’s Diploma of Leadership and Management is not closely related to his nominated occupation of Locksmith ANZSCO 323313.

   Withdrawal of the 2^nd named applicant

4. On 18 December 2020, the second named applicant confirmed that she was an applicant with the first named applicant.  She advised the tribunal that she is no longer with the first named applicant and requested she withdraw from the case presently under review.  As expected, the Tribunal requested identification and then received and accepted the second named applicant’s Withdrawal of Application dated 17 December 2020.  The second named applicant no longer is involved in this proceeding.  For the reasons given, the Tribunal does not have jurisdiction in relation to the second named applicant.

5. The applicant appeared before the Tribunal on 29 April 2021, to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone. During the COVID-19 pandemic, special circumstances exist for the telephone hearing. The Tribunal also considered the Tribunal’s objective of providing a review that is fair, just, economical and expedient. A hearing by telephone achieved this end.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The interpreter was not required after a short time as the applicant was understanding the questions asked by the Tribunal and with the consent of the applicant, the interpreter was dispensed with the Tribunal’s consent.  The second named applicant did not appear at the hearing or take any part in it.

7. The applicant was represented in relation to the review by his registered migration agent Mr M Wong MARN 1464553.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 is whether the applicant meets those requirements.

   Does the applicant meet the Australian study requirement within the 6-month period?

10. 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 one 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 two 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.

11. Degree, diploma, trade qualification, registered course, completed and academic year are all defined terms (see r.1.03, r.1.15F and r.2.26AC(6), and cl.485.111). Completed, in relation to a degree, diploma or trade qualification, means having met the academic requirements for the 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 Education Services for Overseas Students Act 2000 (LIN 19/051).

12. The applicant’s qualification history, institution, duration of his courses and academic weeks are as follows:

Qualification	Institution’s Name	Duration of Course as per PRISMS record	Academic Weeks
Diploma of Commerce	Melbourne Institute of Business Technology	31 October 2011 to 8 June 2012 and 2 July 2012 to 8 February 2013	52
Diploma in Engineering Technology	Melbourne Polytechnic (Northern Melbourne Institute of TAFE)	11 July 2015 to 15 December 2015 & 11 July 2016 to 15 December 2016	52
Certificate III in Locksmithing	Melbourne Polytechnic(Northern Melbourne Institute of TAFE)	6 February 2016 to 30 June 2016	78
Diploma in Leadership and Management	Angad Australian Institute of Technology	17 April 2017 to 15 April 2018 and 15 May 2018 to 1 June 2018	52

1. The applicant arrived in Australia in July 2011 and was the holder of a student visa through throughout the period he undertook his studies.

2. The Tribunal is satisfied that the courses are registered courses and were undertaken in a period greater than 16 months, achieved more than 2 academic years of study and were all taught in English..

3. The Tribunal is satisfied and  finds that the applicant satisfies cl.485.221.

   Is the applicant’s nominated qualification closely related to the nominated occupation?

4. 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 (r.1.03 and r.1.15I).  The relevant instrument for this purpose is Legislative Instrument IMMI 18/051.

5. In this case, the applicant nominated the occupation of locksmith which is a skilled occupation specified in IMMI 18/051.

6. The applicant’s only course completed by him which is within the six-month period ending immediately before the making of his application is the Diploma of Leadership and Management completed on 1 June 2018.

7. In support of his submission that this diploma is closely related to his nominated occupation provided a certificate of the units or modules making up that diploma, set out as follows:

   a.manage employee relations

   b.manage meetings

   c.lead and manage team effectiveness

   d.manage people performance

   e.manage budgets and financial plans

   f.undertake project work

   g.ensure a safe workplace

   h.manage personal work priorities and professional development

   i.facilitate continuous improvement

   j.develop and use emotional intelligence

   k.manage operational plan

   l.lead and manage effective workplace relations

8. The applicant argued that the Diploma of Leadership and Management (Diploma) is closely related to his nominated occupation of locksmith.  The units or modules of his locksmith qualifications of Diploma of Engineering Technology and Certificate III in Locksmithing ought to be considered relevantly to his nominated occupation.

9. Further, in his current employment as a locksmith, his employer calls upon him to undertake tasks requiring leadership and management skills which he utilises in the day-to-day operations.  He gave an example of his employer having him undertake the replacement of 1000 locks at the Melbourne University.  It may have also involved ‘safe’ work where he is required to call upon others to assist in certain jobs which requires both leadership and management skills.

10. Asked as to why he undertook the Diploma, he was counselled by a friend who said that those locksmiths who have both leadership and/or management skills are paid much more than those locksmiths without those skills.  He mentioned that with those skills he might receive as much as $80,000 but much less without his diploma.  That locksmiths starting their own business need both leadership and management skills.  In order to ensure the Tribunal understood the oral submissions received at the hearing, invited the applicant to submit written submissions within 14 days of the hearing.

    Post hearing submission dated 13 May 2021

11. The applicant provided the post hearing submission on 13 May 2021 which called upon the Tribunal to consider both Tahla and Dhillon.  This submission also drew to the Tribunal’s notice the need for it to consider, at all hierarchical levels of ANZSCO in order to see the connection between, the applicant’s diploma in Leadership and Management and his nominated occupation of locksmith.

12. The submission also invited the Tribunal to consider that part of PAM3 which gives an example of the Department approving the close relationship between a chef and the Diploma of Hospitality Management qualification.  While not bound by Departmental policy, it is to be taken into account and given appropriate weight when considering any issue in a particular the Department’s policy to ‘closely related’.

13. That example of closely related may be limited as it was relating to a chef and of the different occupations of a chef in the connection between the chef and its employer which may be a five-star restaurant within a hotel complex.  The Tribunal considers it has little relevance to the applicant’s situation in evaluating a locksmith with  his Diploma of Leadership and Management.

14. The submission restated the oral evidence given by the applicant and for accuracy it is restated.  The applicant’s submission is:

    ‘During the hearing, Mr Kuai said multiple times his work involves and requires leadership and management skills even he has not been in a managerial position, and he also mentioned that in the hearing he intends to operate his own locksmiths‘ business.  This is consistent with the scenario described in the above quoted policy in which a graduate with aspiring to work at a management level.  In this case as discussed at the hearing, Mr Kuai has been inspired to work at a management level as a locksmith.  The content in the Diploma of Leadership and Management completed at ANGAD Australian institute of technology completed by Mr Kuai can be directly transferable to Mr Kuai’s job as a locksmith at the entry level, and team leading level, at the managerial level and even at business operation level.’

15. It is to be noted that the Departmental PAM3 does not consider an applicant’s aspirational future in the nominated occupation is a matter for consideration.

16. The applicant also included with that submission units of competency written by the Commonwealth of Australia for units which Mr Kuai completed in the Diploma of Leadership and Management.  The Tribunal makes this observation.  If the applicant undertook the substantial part of the performance criteria, it is doubted as to whether with he would be able to perform the occupation of locksmith.  For example, ‘Prepare for Meetings’ has the performance criteria of the following:

    a.Develop agenda in line with stated meeting purpose.

    b.Ensure style and structure of meeting are appropriate to its purpose.

    c.Identify meeting participants and notify them in accordance with organisational procedures.

    d.Confirm meeting arrangements in accordance with requirements of meeting.

    e.Dispatch meeting papers to participants within designated timelines.

17. A further example is the 2^nd element of manage meetings ‘Conduct Meetings’ which states the criteria:

    a.Chair meetings in accordance with organisational requirements, agreed conventions for type of meeting and legal and ethical requirements.

    b.Conduct meetings to ensure they are focused, time efficient and achieve the required outcomes.

    c.Ensure meeting facilitation enables participation, discussion, problem-solving and resolution of issues.

    d.Brief minute-taker on method for recording meeting notes in accordance with organisational requirements and conventions for type of meeting.

18. The remaining modules share the specification as the above first 2 modules in managing meetings.

19. The submission does not make a connection between the modules studied under the Diploma in Leadership and management and of the documents provided all its connection to the occupation of locksmith.

    ANZSCO

20. In Talha v MIBP [2015] 235 FCR 100 at [53], the Full Court had this to say about the close relationship of the nominated skilled occupation and the applicant’s Australian studies:

    ‘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).”

21. ANZSCO’s unit group 3233 (precision metal trades workers) lists its tasks as:

    a.Assembling parts and subassemblies of precision instruments, locks, timepieces and firearms;

    b.dismantling precision instruments, locks, timepieces and firearms;

    c.repairing and/or replacing defective parts;

    d.reassembling articles using hand and power tools and machines specially designed for that purpose;

    e.inscribing letters, figures and designs on surfaces or jewellery, trophies and other ornamental items;

    f.installing security systems including changing tumblers in locks, changing locks, cutting keys and opening locks by manipulation;

    g.calibrating precision instruments using standard weights and measures, jigs and fixtures, using handtools to adjust and align parts and small balancing weights; and

    h.may estimate costs and prepare quotes for repairs

22. Specifically, the ANZSCO description of a locksmith (code 323313) is that a locksmith ‘installs and maintains locks and related security devices and systems.  Registration or licensing is required.  Skill level: 3.  Specialisation: safe maker.’

23. ANZSCO’s Minor group 323 level (mechanical engineering trades workers) includes the following tasks:

    a.Forming metal stock and casting is to find tolerances using machine tools to press, cut, grind, plain, bore and drill metal.

    b.Checking fabricated and assembled metal parts for fit.

    c.Fitting parts into machines using hand tools.

    d.Dismantling, repairing and replacing defective parts, and testing and reassembling aircraft components and systems and precision instruments.

    e.Assembling parts and subassemblies of precision implements, locks, timepieces and firearms.

    f.Testing circuits in electronic timepieces and manufactured articles.

    g.Making and repairing tools, equipment and engineering patterns.

24. ANZSCO’s sub- major group 32 level (automotive and engineering trades workers) includes the following tasks:

    a.Diagnosing electrical and mechanical faults in motor vehicles and aircraft.

    b.Dismantling engines and electrical systems and removing damaged panels and interior trim.

    c.Repairing and replacing worn and defective parts.

    d.Painting repaired vehicle services.

    e.Constructing, modifying, painting and bolstering prototype and specialised vehicle bodies.

    f.Marking and cutting out metal stock.

    g.Shaping stock using hand and machine tools.

    h.Shaping mental in moulds.

    i.Joining stock and components by welding, soldering, brazing, riveting, bolting, screwing and gluing.

    j.Fitting and testing components, and applying protective and decorative finishes to metal products.

25. Major group 3 level (technicians and trades workers) includes the following tasks:

    a.Carrying out tests and experiments, and providing technical support to Health Professionals, Natural and Physical Science Professionals and Engineering Professionals.

    b.Providing technical support to users of computer hardware and software.

    c.Fabricating, repairing and maintaining metal, wood, glass and textile products.

    d.Repairing and maintaining motor vehicles, aircraft, marine craft and electrical and electronic machines and equipment.

    e.Operating printing and binding equipment.

    f.Preparing and cooking food.

    g.Sharing, caring for, training and grooming animals, and assisting veterinarians.

    h.Propagating and cultivating plants, and establishing and maintaining turf surfaces for sporting events.

    i.Cutting and styling hair.

    j.Operating chemical, gas, petroleum and power generation equipment.

    k.Providing technical assistance for the production, recording and broadcasting of artistic performances.

1. The Tribunal cannot identify any task, whether direct or indirect with the applicant’s nominated occupation.

2. It follows that 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. In relation to the first named applicant, the Tribunal affirms the decision, not to grant the applicant’s Skilled (Provisional) (Class VC) visa.

4. In relation to the second named applicant, the Tribunal has no jurisdiction concerning her Skilled (Provisional) (Class VC) visa.

   Ian Berry
   Member