Ravi Kumar (Migration) - [2020] AATA 5747

Ravi Kumar (Migration) [2020] AATA 5747 (27 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ravi Kumar
CASE NUMBER:  1823516
HOME AFFAIRS REFERENCE(S):          BCC2018/2744543
MEMBER:Warren Stooke AM
DATE:27 November 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:
·cl.485.221 of Schedule 2 to the Regulations
·cl.485.222 of Schedule 2 to the Regulations

Statement made on 27 November 2020 at 8:35am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Painting Trades Worker – Australian study requirement – Diploma of Building and Construction (Management) – qualification ‘closely related’ to nominated occupation – specific knowledge relevant to the performance of the trade – decision under review remitted
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 10 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 18 July 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 chosen course of study for a Diploma of Building and Construction (Management) was considered as not closely related to the nominated occupation of Panting Trades Worker – ANZSCO Code: 332211.
The applicant appeared before the Tribunal on 22 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Gurpreet Singh, who is the applicant's friend.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
The applicant stated that he understood the application was refused because his “study in Painting and Building and Construction is not relevant”.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ravi Kumar (Migration)

Details

AGLC: Ravi Kumar (Migration) [2020] AATA 5747
Case: [2020] AATA 5747
Decision Date

CaseChat Overview and Summary

The applicant, Ravi Kumar, sought review of a decision to refuse his application for a 485 visa. The refusal was based on the case officer's dissatisfaction that his Diploma of Building and Construction (Management) was not closely related to his nominated occupation of Painting Trades Worker (ANZSCO 332211), thus failing to meet the Australian study requirement. The matter came before the Tribunal.

The central legal issue before the Tribunal was whether the applicant's Diploma of Building and Construction (Management) was "closely related" to his nominated occupation of Painting Trades Worker for the purposes of satisfying the Australian study requirement under Regulation 485.222. This required the Tribunal to interpret the meaning of "closely related" in the context of migration regulations, considering established Federal Court jurisprudence.

The Tribunal reasoned that the phrase "closely related" does not necessitate an exact correspondence between the qualification and the occupation. Instead, it requires a comparison of the entirety of the qualification against the entirety of the occupation to determine if a relevant and near relationship exists. The Tribunal considered the subjects undertaken in the applicant's diploma, which included team effectiveness, customer service, recruitment, operational plans, budget management, industrial relations, and OHS management. It found that these subjects had a strong connection to the essential skills required for a painting trades worker, particularly in managing legal obligations, risk management, and operational aspects of construction. The Tribunal also noted the applicant's colleague had successfully obtained a visa with the same qualifications.

Based on this reasoning, the Tribunal found that the applicant met the requirements of clauses 485.221 and 485.222 of the Regulations. Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with the direction that the applicant had satisfied these specific criteria.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant provided the Tribunal with evidence relating to the subjects undertaken in the Diploma of Building and Construction (Management) course that he completed in July 2018, which is summarised, as follows:a.Team effectiveness: some workers have different skills and he learned how to evaluate the best fit to organise the work;b.Customer service: relates to ensuring quality for customers;c.Recruitment: relates to own business but in the future will help;d.Manage operational plans: relates to how to operate on a construction site;e.Manage budget: relates to the calculation of expenditure (labour and materials) and to meet the profit and loss;f.Industrial Relations: related to knowledge on bullying and discrimination;g.OHS Management: relates to hazard reduction; working at heights; use of scissor lift; signage; ladder conditions; disposal of waste materials, including procedures and contract terms to remove.Witness Evidence – Gurpreet Singh The witness provided evidence that: “Kumar (the applicant) did the same studies and I received a visa”. Representative Submission The Representative provided the Tribunal with the following written submission prior to the hearing:“Dear member,As a migration agent, I was required by the above applicant to advise and lodge this appeal.The application of a 485 visa was refused because the case officer was not satisfied that the certify III in Painting and Decorating was not closely related to the Diploma in Building and Construction (Management): “I have considered the information on file and I am not satisfied that the qualificationused to satisfy the Australian Study requirement, a Diploma of Building and Construction(Management) is closely related to your nominated occupation of Painting Trades WorkerANZSCO 332211.”The case officer decision was because he compared the subjects undertaken in the Diploma of Building and Construction and the cert III in Painting and Decoration. However, the words “closely related” are not defined in the regulations and, the Federal Court already decided that :·“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.”·“Closely related" certainly does not require an exact correspondence.”·“Related" requires a relevant relationship between the nominated course of study and the nominated occupation.”Talha v Minister for Immigration and Border Protection, (2015) FCAFC 115 (25 August 2015)“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 [20131 FCA 1301, [26]. [Paragraph 53]”Prsad v Minister for Immigration and Citizenship [20121 FCA 591 “Closely related" certainly does not require an exact correspondence. As used adverbially, closely imports a meaning of "near" in the present context. "Related" requires a relevant relationship between the nominated course of study and the nominated occupation. The construction promoted by the Minister in his manual, although not in this court on appeal, is a more remote relationship than that specified in the regulation.[paragraph 24]”Minister for Immigration and Border Protection v Dhillon [20141 FCAFC 157“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. [ paragraph 20]As evidence that the decision-maker made wrong decision, I am attaching the visa approval of the applicant’s colleague, Gurpreet Singh, who did exactly the same course, in the same school, and had his visa approved because the case officer was satisfied that both courses were correlated.Painting and Decoration is a trade and has a strong connection with the Building and Construction Diploma (Management). It is essential that a trade person knows how to manage the legal obligation of a building and construction as a contractor, apply the principle of risk management, manage personal work priorities and professional development, ensure team effectiveness, manage quality customer service, recruit select and induct staff, manage construction works, manage budgets and financial plans, manage operational plans, support employee and industrial relation procedures, manage environmental management practices and process in building and construction. The applicant is already working in his own business.As per attached transcript, you can verify that these essential skills for a trade person are precisely the subjects Ravi studied in the Diploma of Building and Construction (Management).Therefore, the Regulation 485.222 is met by the applicant and the visa application should have been approved.As evidence we are providing the following documents:·The applicant’s friend visa approval (GURPREET SING) with the same courses ·The applicant’s friend ( GURPREEET SING) certificates and transcripts ·Applicant’s certificates and transcripts·Applicant’s business card”Does the applicant meet the Australian study requirement?

Decision

Reasons for decision

On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.221 and 485.222. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.Decision The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 485 visa:a.cl.485.221 of Schedule 2 to the Regulations; and b.cl.485.222 of Schedule 2 to the Regulations.Warren Stooke AMMember

Ratio Decidendi

Legal Principle Established

The Representative provided the Tribunal with the following written submission prior to the hearing:“Dear member,As a migration agent, I was required by the above applicant to advise and lodge this appeal.The application of a 485 visa was refused because the case officer was not satisfied that the certify III in Painting and Decorating was not closely related to the Diploma in Building and Construction (Management): “I have considered the information on file and I am not satisfied that the qualificationused to satisfy the Australian Study requirement, a Diploma of Building and Construction(Management) is closely related to your nominated occupation of Painting Trades WorkerANZSCO 332211.”The case officer decision was because he compared the subjects undertaken in the Diploma of Building and Construction and the cert III in Painting and Decoration. However, the words “closely related” are not defined in the regulations and, the Federal Court already decided that :·“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.”·“Closely related" certainly does not require an exact correspondence.”·“Related" requires a relevant relationship between the nominated course of study and the nominated occupation.”Talha v Minister for Immigration and Border Protection, (2015) FCAFC 115 (25 August 2015)“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 [20131 FCA 1301, [26]. [Paragraph 53]”Prsad v Minister for Immigration and Citizenship [20121 FCA 591 “Closely related" certainly does not require an exact correspondence. As used adverbially, closely imports a meaning of "near" in the present context. "Related" requires a relevant relationship between the nominated course of study and the nominated occupation. The construction promoted by the Minister in his manual, although not in this court on appeal, is a more remote relationship than that specified in the regulation.[paragraph 24]”Minister for Immigration and Border Protection v Dhillon [20141 FCAFC 157“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. [ paragraph 20]As evidence that the decision-maker made wrong decision, I am attaching the visa approval of the applicant’s colleague, Gurpreet Singh, who did exactly the same course, in the same school, and had his visa approved because the case officer was satisfied that both courses were correlated.Painting and Decoration is a trade and has a strong connection with the Building and Construction Diploma (Management). It is essential that a trade person knows how to manage the legal obligation of a building and construction as a contractor, apply the principle of risk management, manage personal work priorities and professional development, ensure team effectiveness, manage quality customer service, recruit select and induct staff, manage construction works, manage budgets and financial plans, manage operational plans, support employee and industrial relation procedures, manage environmental management practices and process in building and construction. The applicant is already working in his own business.As per attached transcript, you can verify that these essential skills for a trade person are precisely the subjects Ravi studied in the Diploma of Building and Construction (Management).Therefore, the Regulation 485.222 is met by the applicant and the visa application should have been approved.As evidence we are providing the following documents:·The applicant’s friend visa approval (GURPREET SING) with the same courses ·The applicant’s friend ( GURPREEET SING) certificates and transcripts ·Applicant’s certificates and transcripts·Applicant’s business card”Does the applicant meet the Australian study requirement?