Randhawa (Migration) - [2020] AATA 4054

Randhawa (Migration) [2020] AATA 4054 (7 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Parwinder Singh Randhawa
CASE NUMBER:  1816475
HOME AFFAIRS REFERENCE(S):          BCC2018/2083784
MEMBER:Kira Raif
DATE:7 September 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 07 September 2020 at 3:28pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work stream – qualifications – Painting Trades Worker – Diploma of Building and Construction (Management) not related to occupation – focused more on management skills than technical skills – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.221-485.222
CASES
Talha v Minister for Immigration and Border Protection (2015) FCAFC 115
Tobon v Minister for Immigration (2014) FCCA 2208
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 5 June 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 was born in September 1996. He applied for the visa on 14 May 2018. 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 the qualifications used to meet the Australian study requirement were closely related to the applicant’s nominated occupation. The applicant seeks review of the delegate’s decision.
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.
The applicant appeared before the Tribunal on 7 September 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
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).
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?
The applicant provided to the Tribunal a copy of the primary decision record. The applicant stated in his application that he completed the following study in Australia:
02/16 – 05/17 Cert III in Painting and Decorating
05/17 – 05/18 Diploma in Building and Construction (Management)
The applicant had nominated the occupation of Painting Trades Worker (ANZSCO 332211) in his application.
The application for the visa was made in May 2018. The Tribunal finds that the only qualification completed by the applicant in the 6 months before the application was made is the Diploma in Building and Construction (Management). The Tribunal finds that the applicant relied on that qualification to meet the Australian study requirement. The Tribunal must consider whether the Diploma in Building and Construction (Management) is closely related to the occupation of Painting Trades Worker.
The applicant provided a written statement to the delegate and a further written statement to the Tribunal explaining the relationship between the qualification and the nominated occupation. The applicant states that painters with qualifications have better earnings and his aim is to start his own business, so skills such as material estimation, taxation, accounting, payroll and people management are prerequisites when starting his own business. The applicant states that the Diploma is not only useful but forms an integral part of continued professional development as every painting worker is exposed to business concepts and requires business skills as entrepreneurs. The applicant referred to a number of key skills such as staffing and people management, marketing and finance and explained how these are related to the nominated occupation.
The applicant provided a further written submission to the Tribunal on 2 September 2020. The applicant states that it is essential for painters and decorators to have qualifications in building and construction for registration. The applicant states that by completing the Certificate III he gained skills as a painting practitioner but by completing the Diploma he gained skills to be a painting contractor. A practitioner can be employed or subcontractor while the contractor can enter contracts and provide painting services to public and in some Australian jurisdictions painting practitioners cannot provide services to the public unless they are also registered as painting contractors. To register as a painting contractor one must demonstrate having financial and organisational capacity. The applicant states that the Diploma gave him knowledge of how to work as a contractor, manage a painting project, manage finance, use computers, present quotation, recruit staff, understand accounting and financial matters. The applicant states that the core content of the Diploma includes management practices, safety and risk management, project management, building codes etc and his aim is to be a registered painting contractor and eventually start his own business. The applicant states that the Diploma of Building and Construction makes trade workers more valuable and marketable and forms and integral part of their professional development. The applicant outlined the skills required by painting contractors, including problem solving, project management, people management, marketing and finance.
The applicant refers to ANZSCO and the reasoning in Tobon v Minister for Immigration (2014) FCCA 2208, stating that there does not have to be a direct overlap or match between the subject matter of the course and the nominated skilled occupation but it is merely necessary that the skills that are gained through the study must be capable of using more than a small part of the skilled occupation. The applicant also refers to the reasoning in Talha v Minister for Immigration and Border Protection (2015) FCAFC 115.
The Tribunal acknowledges the applicant’s evidence that painting contractors may require business management skills to be able to run a business or work as contractors. However, the Tribunal is mindful that ANZSCO does not make a distinction between painting practitioners and painting contractors. The tasks and the skill set outlined in ANZSCO refers to more technical skills. In the Tribunal’s view, the tasks and responsibilities to which the applicant refers as being relevant to the occupation of painting contractor may be more relevant to the occupation of a manager, supervisor, finance or a business professional, albeit in the field of painting, building or construction. They do not form part of the occupation of a painting trades worker. The applicant’s submission outlining the responsibilities for the nominated occupation is not supported by ANZSCO. A number of authorities confirm that the decision maker is entitled to give substantial weight to the contents of the ANZSCO descriptions (see Manik v MIAC [2012] FMCA 149 and Talha v MIBP [2015] FCAFC 115, which suggests that the nature of the nominated occupation must be determined by reference to ANZSCO). It is necessary for the Tribunal to objectively consider the relationship of the applicant’s qualification to the ANZSCO definition of the occupation rather than relying on the applicant’s own description of what the occupation entails or what he believes would benefit his future career (see Chawdhury v MIAC [2010] FMCA 275 at [12], Kabir v MIAC [2010] FMCA 577 at [70], Shafiuzzaman v MIAC [2011] FMCA 874 at [48]–[67]).
According to ANZSCO, the nominated occupation involves the following tasks
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:
oerecting scaffolding and ladders, and placing drop sheets to protect adjacent areas from paint splattering
opreparing surfaces by removing old paint and wallpaper, fixing woodwork, filling holes and cracks, and smoothing and sealing surfaces
oselecting and preparing paints to required colours by mixing portions of pigment, oil, and thinning and drying additives
oapplying paints, varnishes and stains to surfaces using brushes, rollers and sprays
ohanging wallpaper, matching patterns and trimming edges
ocleaning equipment and work areas
omay repair windows and replace glass in wooden and metal frames
omay 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.
The description of the work of a painting trades worker relates almost entirely to technical skills. When the occupation is viewed as a whole, having regard to ANZSCO, the Tribunal does not consider that skills and tasks such as business management, staff selection and supervision, financial and accounting skills, people management, marketing, etc accurately reflect the work of a painting trades worker.
In the Tribunal’s view, the distinction made by the applicant between painting practitioners and painting contractors appears to involve different occupations and the Tribunal is not satisfied that the business management responsibilities outlined by the applicant in relation to the occupation of painting contractors form part of the occupation of a painting trades worker. The Tribunal is mindful that it is possible to engage in more than one occupation at any one time so that tasks such as people management, financial management, marketing etc appear tasks performed within different occupations even if one also performs the role of a painting trades worker.
The Tribunal accepts that it is necessary to consider the wider descriptions than the particular unit group described in ANZSCO. Painting trades workers are part of the broader unit group which must also be considered.
Minor Group 332 forms part of a higher Sub-Major Group 33, which is called Construction Trades Workers. ANZSCO's description for Sub-Major Group 33 states that Construction Trades Workers construct and repair buildings and other structures, apply final finishes such as plaster, painting and flooring, make and install glass products, and provide plumbing, drainage and mechanical services. The Tribunal is not satisfied that management, financial management, etc form part of the sub-major group. The Tribunal considered the tasks performed in Sub-Major Group 33 and found that these do not list management, marketing and financial responsibilities as tasks undertaken by Construction Trades Workers. The Tribunal is not satisfied that the skills acquired by the applicant during his study for the Building and Construction (Management) course are closely related to the above listed skills or the tasks set out in Sub-Major Group 33.
The applicant’s representative submits that painting trades worker are within the building and construction major group in ANZSCO showing that there is a close link between painting trades workers and building and construction industry. The Tribunal acknowledges that this may well be the case but the issue here is that the Diploma completed by the applicant has a management major and it is not simply a building and construction qualification. It offers specific management skills rather than the broader building and construction skills and that is the issue of concern for the Tribunal.
In oral evidence, the applicant also explains the requirements of what building and construction workers do, including, he claims, staff management and working in a team. The applicant claims that by completing the Diploma, he gained the skills to work as a contractor. The applicant claims that painters and construction workers do not only performing painting work but require other skills. The applicant states that business planning is very important in his occupation, for example he has to write tenders or plan how to lead a team and to run a business. He must lead a team and consider marketing for the business and calculate the financial costs of running a business. He needs to provide financial reports to be able to run a business and be involved in staff selection. Following the hearing, the applicant provided to the Tribunal an extract from an ABS website which refers to the skills which are required by painting and trades workers. Despite this, the Tribunal does not consider these form the normal part of the nominated occupation. As noted above, the Tribunal is of the view that it must be guided by ANZSCO in describing the occupation and not the industry expectations or the applicant’s beliefs. ANZSCO does not provide that management, marketing and financial management are part of the occupation.
The applicant argues that management tasks are essential if he is to work as a subcontractor. However, the Tribunal does not consider it appropriate to make the distinction between painting and trades workers working as sole traders or subcontractors and those working for large companies with other business professionals available to perform different tasks and those working in small companies where there are no other business professionals available to perform a variety of tasks. There is no distinction in ANZSCO between the context of a person’s employment and the Tribunal does not consider that the description for the occupation would entail that different contexts in which a painting trades worker may be employed would envisage different tasks and responsibilities.
The applicant claims that in his Diploma he studied many subjects which relate to the occupation. In oral evidence the applicant described the various units and the skills he acquired through these. In the Tribunal’s view, many of these skills are not relevant to the occupation (such as business and management skills, budget management, financial plans, quality control, staff recruitment, use of spreadsheets) and in any case, the Tribunal does not consider that the usefulness of several subjects, even if it was the majority of subjects to the nominated occupation established the close relationship between the course as a whole to the occupation as a whole (see Walia v MIBP [2015] FCCA 1949).
The applicant also claims that he may wish to run his own business. However, the assessment required by the legislation relates to the occupation nominated by the applicant – that of a painting trades worker – and not an occupation in which the applicant may wish to engage in the future, such as business owner or manager. 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.
The applicant referred the Tribunal to another Tribunal decision in which the Tribunal (differently constituted) made a favourable finding. The Tribunal considers such comparisons unhelpful. There are other decisions where in the same or similar circumstances the Tribunal made unfavourable decisions (eg 1809805) and it is unhelpful to refer to only those decisions which the applicant considers to be of use. More importantly, the Tribunal decision have no precedential value for the Tribunal and are not binding.
Having considered all the evidence before it, the Tribunal is not satisfied that the Diploma of Building and Construction (Management) is closely related to the occupation of Painting Trades Worker. As the applicant’s qualification is not closely related to the nominated skilled occupation, the applicant does not meet cl.485.222.
Conclusion
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.
Kira Raif
Senior Member