PARTAP SINGH (Migration)

[2020] AATA 3321

PARTAP SINGH (Migration) [2020] AATA 3321 (10 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr PARTAP SINGH

CASE NUMBER:  1729853

HOME AFFAIRS REFERENCE(S):          BCC2017/3356073

MEMBER:Kira Raif

DATE:10 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 10 August 2020 at 11:10am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement – qualification closely related to nominated occupation – tradesman studied trade management course – relevance of qualification as a whole, not selected subjects – plans to manage own business – relevance of qualification to nominated occupation, not future occupation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.222

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 Immigration and Border Protection on 8 November 2017 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 is a national of India born in June 1989. He applicant applied for the visa on 14 September 2017. The delegate refused to grant the visa because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant’s qualifications were closely related to the nominated skilled occupation.

3. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.  

4. The applicant appeared before the Tribunal on 10 August 2020 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. Visa Class VC contains Subclass 485. 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).

6. 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.

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

7. The applicant stated on the application form that he completed the following study in Australia:

   08/14 – 07/17  Diploma of Building and Construction (Management)
   05/16 – 07/17  Certificate III in Printing and Decorating

8. The applicant had nominated the occupation of Printing Trades Worker (ANZSCO 332211) in the application.

9. The Tribunal notes that the Certificate III was completed in 14 months. The primary decision record indicates that the Certificate III was registered for 60 weeks. The Tribunal finds that this course in itself was not sufficient to meet the 2 academic years or the 16 months requirements in the Australian study requirement. The Tribunal finds that the applicant also relied on the Diploma of Building and Construction (Management) to meet the Australian study requirement. The Tribunal must consider whether this qualification is closely related to the nominated occupation.

10. In oral evidence to the Tribunal the applicant stated that he wanted to do full-time work in painting and decorating business and wants to become a painter. He did the Diploma because there is no other Certificate IV or a Diploma for international students in this field and this was the only Diploma related to the construction industry. The applicant states that there subjects he completed were mainly in painting and decorating and they were practical units related to the building and construction industry. The applicant said that there was nothing else available for international students in this industry and his migration agent recommended that course.

11. The applicant states that the Building and Construction (Management) course is very similar to the Building and Construction (Building) and he thought he already had the skills taught in the Building and Construction (Building) course and he wanted to expand his skills, so he chose to specialise in management.

12. In the Tribunal’s view, the occupation of a printing trades worker does not have management responsibilities. ANZSCO states the following with respect to the nominated occupation:

    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.

    Tasks Include:

    ·erecting scaffolding and ladders, and placing drop sheets to protect adjacent areas from paint splattering

    ·preparing surfaces by removing old paint and wallpaper, fixing woodwork, filling holes and cracks, and smoothing and sealing surfaces

    ·selecting and preparing paints to required colours by mixing portions of pigment, oil, and thinning and drying additives

    ·applying paints, varnishes and stains to surfaces using brushes, rollers and sprays

    ·hanging wallpaper, matching patterns and trimming edges

    ·cleaning equipment and work areas

    ·may repair windows and replace glass in wooden and metal frames

    ·may 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.

13. Having regard to the tasks set out in ANZSCO, the Tribunal does not consider that management is in any way related, let alone closely related, to the nominated occupation.

14. The applicant claims there was no other qualification for international students. The Tribunal does not accept this is so. The applicant confirmed that there were different specialisations in the Diploma of Building and Construction, one relating to management and one relating to building and he agrees that he could have completed a Diploma in Building and Construction majoring in building. In the Tribunal’s view, such a qualification may have been more closely related to the nominated occupation. There may well be other qualifications that are available that are related to his occupation.

15. The Tribunal accepts that some of the subjects completed as part of the Diploma were directly related to the construction work. However, the Tribunal must consider the qualification as a whole and not selected subjects.

16. The applicant said that he chose to specialise in management because he wants to manage his own business. The applicant said that he worked as a painter in India before but there is not much work and he chose to do management in order to be able to manage his own business in India. The Tribunal acknowledges that the applicant may wish to pursue his own business in the future. However, the assessment required by the legislation relates to the occupation nominated by the applicant – that of printing trades worker – and not an occupation in which the applicant may wish to engage in the future. As Smith FM stated in Pasula at [23]:

    … the relevance of a qualification for the purposes of Sch.2 cl.880.215 of the regulations must relate to the nominated occupation itself, and not to some different occupational classification which might later be pursued by the visa applicant, and which would then involve use of the two qualifications. If PAM3 suggested otherwise, then it would be giving advice flawed by error of law.

17. In the Tribunal’s view, if the applicant decides to run his own business in the future, his occupation may be that of a business owner, supervisor or manager and not that of printing trades worker.

18. The applicant told the Tribunal that his friends who completed the same qualifications were granted visas. The Tribunal acknowledges that evidence but must consider the applicant’s circumstances and cannot comment on the circumstances of his friends. The applicant also said that he was able to obtain the TRA assessment. The Tribunal accepts that this is so, but the skills assessment is a separate visa requirement and the Tribunal is mindful that it is not the task of the TRA to assess the relationship between qualifications and the nominated occupation.

19. Having considered the totality of the applicant’s evidence, the Tribunal is not satisfied that the Diploma of Building and Construction (Management) is closely related to the occupation of Printing Trades Worker. The Tribunal is not satisfied the applicant meetscl.485.222.

    Conclusion

20. 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

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

    Kira Raif
    Senior Member