Purba (Migration)

Purba (Migration) [2020] AATA 5742 (7 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sukhwinder Singh Purba
CASE NUMBER:  1826011
HOME AFFAIRS REFERENCE(S):          BCC2018/3978864
MEMBER:Warren Stooke AM
DATE:7 December 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 07 December 2020 at 7:08pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Carpenter – Australian study requirement – Advanced Diploma of Building and Construction (Management) – qualification ‘closely related’ to nominated occupation – ANZSCO descriptions – content of course more closely aligned with the skills of a manager – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cls 485.221, 485.222
CASES
Talha v Minister for Immigration and Border Protection [2015] FCAFC 115

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 27 August 2018 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 28 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 (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 visa on the basis that the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied their qualification used to satisfy the Australian Study requirement, an Advanced Diploma of Building and Construction (Management), is closely related to their nominated occupation of Carpenter 331212. The delegate stated: “They have not provided any evidence of how the skills and knowledge they obtained from studying the Advanced Diploma of Building and Construction (Management) qualification are directly transferable to the nominated occupation of Carpenter 331212”.
The applicant appeared before the Tribunal on 24 September 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant stated that he understood the application was refused because the Advanced Diploma of Building and Construction is not closely related to Carpentry.
The applicant confirmed to the Tribunal that he provided a copy of the delegate’s decision to the Tribunal with his application for review.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
The applicant provided evidence that he arrived in Australia in 2014 to undertake studies.
The applicant provided evidence that he thought he was granted a Bridging visa on 28 June 2018, which has condition 8501 that requires the applicant to maintain health insurance and the applicant confirmed to the Tribunal that he maintains health insurance with Bupa.
The applicant provided evidence that he undertook an English language test with PTE and secured a score of 50.
The applicant provided the Tribunal with evidence concerning the completion of the following courses of study:
·Advanced Diploma of Building and Construction (Management) from Australian Industrial Systems Institute was completed from 28 August 2017 to 19 May 2018. (CRICOS Code: 086295B)
·A Certificate IV in Building and Construction (Building) from Australian Industrial Systems Institute, was completed from 2 August 2016 to 1 September 2016. (CRICOS Code: 081209A);
·Certificate III in Carpentry from the Holmesglen Institute was completed on 28 September 2015.
The applicant provided evidence that he is currently working as a truck driver transporting the goods of Australian Paper on a wage of $29.50 per hour.
The applicant provided evidence that the Certificate IV in Building and Construction (Building) included the following subjects:
·CPCCBC4001A Apply building codes and standards to the construction process for low rise building projects
·CPCCBC4002A Manage occupational health and safety in the building and construction workplace
·CPCCBC4003 A Select and Prepare A Construction Contract
·CPCCBC4004A Identify and Produce Estimated Costs For Building And Construction Projects
·CPCCBC4005A Produce labour and material schedules for ordering
·CPCCBC4006B Select, procure and store construction materials for low rise projects
·CPCCBC4007A Plan building and construction work
·CPCCBC4008B Conduct on-site supervision of building and construction projects
·CPCCBC4009B Apply legal requirements to building and construction projects
·CPCCBC4010B Apply structural principles to residential low rise constructions
·CPCCBC4011B Apply structural principles to commercial low rise constructions
·CPCCBC4012A Read and interpret plans and specifications
·BSBSMB8406A Manage small business finances
·CPCCOHS1001A Work safely in the construction industry
·BSBSMB8404A Manage small business planning
·BSBSMB8402A Plan small business finances
The applicant provided evidence that the Advanced Diploma of Building and Construction (Management) included the following subjects:
·BSBOHS603B Analyse and evaluate OHS risk
·CPCCBC6001A Apply building codes and standards to the construction process for large building projects
·CPCCBC6003A Establish, maintain and review contract administration procedures and frameworks
·CPCCBC6005A Manage processes for complying with legal obligations of a building or construction contractor
·BSBRSK501B Manage risk
·BSBMKG609A Develop and Marketing Plan
·CPCCBC6005A Manage tender developments for major projects
·CPCSUS5001A – Develop workplace policies and procedures for sustainability
·CPCCBC6006A Manage procurement and acquisition of resources for building and construction projects
·CPCCBC6012A Manage and administer development of documentation for building or construction projects
The Tribunal explained to the applicant the requirements of cl.485.221 and cl.485.222 of Schedule 2 of the Regulations and advised the applicant that the Tribunal is satisfied that the studies undertaken met the requirements of cl.485.221 based upon the evidence provided to the Tribunal.
The Tribunal stated that the Act [cl.485.222] requires the courses to be ‘closely related’ to the nominated occupation and that this was the issue to be considered. The Tribunal asked the applicant to explain how the qualifications gained are closely related to the nominated occupation of Carpenter [ANZSCO Code: 331212] and a summary of the applicant’s response, included:
·With Carpentry I have done practical work and how to use the tools;
·Australian laws, standards, procedures and safety were included in the course and how to manage work in carpentry;
·Learned about OHS and how to do the work safely;
·Learned the obligation as a tradie towards Australian law;
·Advanced Diploma is the only course that is closely related and no other courses explain how to apply Australian legal standards;
·The course taught how I can manage a team and apply Australian law;
·I did the course keeping in view, my future;
·If I became a qualified carpenter, with help of this course, I can get good projects in my country, which is not taught in much detail in my country;
·The course explained risk and safety in detail;
The applicant stated that he had tried to find a job in carpentry and claimed he was unsuccessful because he is on a Bridging visa and the visa could expire anytime, as soon as the ATT appeal completes.
The applicant stated that a 485 visa would enable him to get an opportunity to work ‘here’ and get experience and he claimed that he was refused because with the BV he was not on a valid visa.
The applicant stated that the AAT had approved other cases similar to his own and that if the Tribunal wants it can provide approval of other people. The Tribunal responded that in relation to other cases the Tribunal is reviewing the application now before it.
The applicant stated that practical work has been completed but the course is how to do it safely.
Representative Submissions
The Representative made the following submissions:
·“The term 'closely related' is not defined in the Regulations. However, the term has been considered by the Full Federal Court of Australia in the decisions of MIBP v Dhillon and Talha v MIBP as well as the Federal Court of Australia's in its decision in Constantino v MIBP.”
·“The highest hierarchy within which the applicant’s nominated occupation of Carpenter sits is Major Group 3 – Technicians and Trades Workers. ANZSCO states that Technicians and Trades Workers perform a variety of skilled tasks, applying broad or in-depth technical, trade or industry-specific knowledge, often in support of scientific, engineering, building and manufacturing activities. [Full details are set out in Annexure D].
Checking the quality of material and operation of equipment and premises runs to ensure compliance with occupational health and safety regulations is a task closely and uncontroversial connected to the ensuring of a safe workplace.
The skills conveyed and obtained in these units are connected to working safely, following regulations and managing administrative work. We encourage the Tribunal to take the approach set out in Talha, and to conclude that the applicant’s occupation of Carpenter is ‘closely related’ to the Advanced Diploma of Building and construction (Management).
We request tribunal to considerate that unit’s applicant has studied during Advanced Diploma of Building and construction (Management) are intended to enable applicant to learn and develop safety procedures, overseeing the work and qualities and liaising better with contractors/ clients. We request Tribunal to consider that the task of explaining and enforcing building regulations, workplace safety and other tasks involving the selection, training and development of fellow tradies/carpenters are essential elements of the role of Carpenter.
Upon completing the Diploma of Building and construction (Management) he applicant has gained administrative, management and technical skills and knowledge relevant to the duties of Carpenter.”
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 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, being the duration of a course registered under the Education Services for Overseas Students Act 2000: (IMMI 09/040).
The Tribunal is satisfied that the courses of instruction were conducted in the English language and at Australian registered institutions, with the last course of study, the Advanced Diploma of Building and Construction (Management), being completed within six months of the application for the grant of a Subclass 485 (Temporary Graduate) visa.
The Tribunal is satisfied that the Certificate III in Carpentry course was undertaken at Holmesglen College and was completed on 28 September 2015; the Certificate IV in Building and Construction (Building) was undertaken at the Australian Industrial Systems Institute was completed from 2 August 2016 to 1 September 2016. (CRICOS Code: 081209A) and that the Advanced Diploma of Building and Construction (Management) from Australian Industrial Systems Institute was completed from 28 August 2017 to 19 May 2018. (CRICOS Code: 086295B)
The Tribunal is satisfied that the applicant completed in accordance with r.1.15F(2)) an assortment of courses of study including: a Certificate IV in Building and Construction (Building) and Advanced Diploma of Building and Construction (Management) that were completed in a total of at least 16 calendar months from 1 September 2016 to 19 May 2018 and that the qualifications gained were as a result of at least 2 academic years (as specified) study undertaken at an Australian Institution in the English language, whilst the holder of a Student visa.
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?
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).
In this case, the applicant nominated the occupation of Carpenter, which is a skilled occupation specified in the Legislative requirements for grant of a Skilled visa.
The evidence provided by the applicant demonstrated that the primary qualification, as a Carpenter, was undertaken by the applicant prior to further studies toward an Advanced Diploma of Building and Construction (Management) with a specific focus on enhancing the applicant’s knowledge toward the application of his trade skill in the workplace. In this regard, the Tribunal is satisfied that the Australian Industry Systems Institute is an accredited institution for the purposes of IMMI 13/031.
The Tribunal finds that the evidence presented by the applicant to the Tribunal (refer above) places significant emphasis on the learnings derived from the Advanced Diploma of Building and Construction (Management), as having been for the purposes of management activities as well as enhancing the applied skills of a tradesperson engaged as a Carpenter.
The Tribunal is not satisfied, that the applicant’s explanation for the completion of the Advanced Diploma of Building and Construction (Management) course predominantly provided learnings from this course that are ordinarily performed by the applicant as a Carpenter – ANZSCO Code: 331212 and that at least 50 per cent of the course subjects (from the transcript) more closely align with the skills of a manager, which was provided in evidence. In particular, the Tribunal does not accept that the following subjects are ‘closely related’ to the trade skill performed by a Carpenter:
·CPCCBC6003A Establish, maintain and review contract administration procedures and frameworks;
·CPCCBC6005A Manage processes for complying with legal obligations of a building or construction contractor;
·BSBMKG609A Develop a Marketing Plan;
·CPCCBC6005A Manage tender developments for major projects;
·CPCSUS5001A – Develop workplace policies and procedures for sustainability.
Whilst, the Tribunal recognises the usefulness of the course studied, the combination of subjects, in this particular Advanced Diploma of Building and Construction (Management) course, is not considered by the Tribunal to be ‘closely related’ to the nominated occupation of a Carpenter, as described in the general descriptor of Carpenter – ANZSCO Code: 331212 and as set out in the duties, in the following 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 accepts that in a building and construction environment there is a high priority placed on self-supervision, which is used to ensure safe work and the effectiveness of the interaction with other trades onsite. In addition, a tradesperson, in a contemporary worksite, needs to perform administrative tasks that are part of the responsibility for the performance of trade work, including: completion of ‘Safe Work Method Statements’; environmental compliance documentation; spreadsheet costings of labour and materials to enable the logging of timesheets and the ordering of materials, which is an inextricable requirement of the tasks performed; preparation of an operational plan to integrate with other trades in a timely and safe manner; communication with other trades on-site to ensure safe working practices are observed at all times; preparation of a ‘punch list’ to facilitate remedial work to effect handover to the end-user; and to acquaint oneself with legislative requirements that includes: environmental standards, disposal of contaminated material, working at heights, use of scissor lifts and completion of workplace incident reports. The Tribunal finds that the applicant has provided some evidence regarding the ‘close relationship’ of the following subjects to the application of his trade skill, as a Carpenter:
·BSBOHS603B Analyse and evaluate OHS risk;
·CPCCBC6001A Apply building codes and standards to the construction process for large building projects;
·BSBRSK501B Manage risk;
·CPCCBC6006A Manage procurement and acquisition of resources for building and construction projects;
·CPCCBC6012A Manage and administer development of documentation for building or construction projects.

Further, on this basis of the evidence overall, the Tribunal is not satisfied that a substantial part of the content of the course, as presented by the applicant, is closely related to the nominated occupation of Carpenter – ANZSCO Code: 331212.
The Tribunal, in determining whether the Advanced Diploma of Building and Construction (Management) course undertaken by the applicant is ‘closely related’ to the descriptor for a Carpenter – ANZSCO Code: 331212, is not satisfied that the course of study, in the broader context of the carpentry 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.”
The applicant provided evidence that other persons engaged in an Advanced Diploma of Building and Construction (Management) had been granted a 485 visa. The Tribunal notes that it is confined to the facts pertaining to the case herein, as constituted to the Tribunal, in relation to findings in this matter.
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
The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Warren Stooke AM
Member

[2020] AATA 5742

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction