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

1. 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).

2. 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.

3. 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.

4. 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.  

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

6. The applicant stated that he understood the application was refused because his “study in Painting and Building and Construction is not relevant”.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. The applicant provided evidence that he completed the following courses of study:

   a.Diploma of Building and Construction (Management) undertaken from 15 July 2017 to 16 July 2018 at the Western Institute of Technology – CRICOS Course Code: 074493F;

   b.Certificate III in Painting and Decorating was undertaken from 15 May 2016 to 15 July 2017 at the Western Institute of Technology – CRICOS Course Code: 076788G.

10. The applicant provided evidence that he undertook a trade assessment with Trades Recognition Australia on 9 April 2020 and was assessed as ‘successful’.

11. The applicant provided evidence that he was granted a Bridging visa, 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 Australian Unity.

12. The applicant provided evidence that he has been employed in painting work, as a contractor in his own company, for the last 4 years. He stated that he is currently on a charge-out rate of $32.00 per hour, where he works 40 hours per week from Monday to Friday.

13. The Tribunal explained to the applicant the requirement of cl.485.221 and cl.485.222, including that the Act requires the courses to be ‘closely related’ to the nominated occupation and asked the applicant to explain how the qualifications are closely related to his nominated occupation. The Tribunal advised the applicant that the issue is whether the courses studied are ‘closely related’ to the nominated occupation.

14. 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

15. The witness provided evidence that: “Kumar (the applicant) did the same studies and I received a visa”.

    Representative Submission

16. 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 qualification
    used to satisfy the Australian Study requirement, a Diploma of Building and Construction
    (Management) is closely related to your nominated occupation of Painting Trades Worker
    ANZSCO 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?

17. 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.

18. ‘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).

19. 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 Diploma  of Building and Construction (Management), being completed within six months of the application for the grant of a Subclass 485 (Temporary Graduate) visa.

20. The Tribunal is satisfied that Western Institute of Technology provides a registered course with a CRICOS Course Code: 074493F for the Diploma of Building and Construction (Management).

21. The Tribunal is satisfied that the applicant completed in accordance with r.1.15F(2)) an assortment of courses of study in a total of at least 16 calendar months from 15 May 2016 to 16 July 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.

22. 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?

23. 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). The relevant instrument for this purpose is Legislative Instrument LIN 19/049 - Skilled visas, which came into force on 5 March 2019.

24. In this case, the applicant nominated the occupation of Painting Trades Worker, which is a skilled occupation specified in LIN 19/049 - Skilled visas.

25. The evidence provided by the applicant demonstrated that the primary qualification, as a Painter and Decorator, was undertaken by the applicant prior to further studies toward a 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 Western Institute of Technology is an accredited institution for the purposes of IMMI 13/031.

26. The Tribunal is satisfied, based upon the evidence provided by the applicant at hearing, through an explanation of the relevance of each subject studied in the completion of the Diploma of Building and Construction (Management) course, that learnings from this course have underpinned the scope of work performed by the applicant in his application of his Painting Trade Worker skills, as a trades contractor, which was provided in evidence.

27. The Tribunal is satisfied that the applicant has maintained a continuity of study that supports his occupation as a Painting Trades Worker – ANZSCO 332211 and that the substantial content of the studies undertaken by the applicant is ‘closely related’ for the purposes of the ANZSCO: 332211. In particular, the applicant has demonstrated, through an explanation at hearing, that the Diploma of Building and Construction (Management) qualification has enabled the applicant to perform his work within a high-end painting and decorating trade in a construction environment, at a professional trade level.

28. Further, the Tribunal accepts that the Diploma of Building and Construction (Management) undertaken and explained by the applicant, as to the learnings he derived from the course, to be ‘closely related’ to the occupation of Painting Trades Worker – ANZSCO 332211, which sets out the duties in the following general descriptor:

    “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.

    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:

    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.”

29. Whilst the Tribunal finds that some of the course content is not closely related to the nominated occupation, including recruitment, overall, the applicant has demonstrated to the Tribunal, through the evidence provided at hearing, the utility of the course content to support the application of his trade skill and that there is a close relationship  between the applicant’s specific Diploma of Building and Construction (Management) course studied and his nominated occupation of Painting Trades Worker – ANZSCO 332211. In this regard, the nomenclature in the title of the course that includes the term, ’management’, can be misleading to the extent that it can relate more to the common meaning, as supported by the evidence, to include the ‘control of things’, as well as the alternative meaning of controlling people, which generally would be more akin to the exercise of a management responsibility. As such, the Tribunal accepts that the ‘control of things’, that includes: risk; work priorities; costings of labour and materials (through spreadsheets); customer interactions and service; safety and team communications can apply as self-disciplines to be exercised by an individual tradesperson to enhance their skill performance.

30. The Tribunal considers 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.

1. On this basis, the Tribunal is satisfied that the substantial part of the content of the course, specifically undertaken by the applicant and as described at hearing, is closely related to the nominated occupation of Painting Trades Worker – ANZSCO 332211.

2. The Tribunal received submissions from the applicant’s Representative and notes that the issue in this case is whether the Diploma of Building and Construction (Management) is ‘closely related’ to the nominated occupation of Painting Trades Worker and that the issue is not, as submitted by the Representative, whether the Diploma of Building and Construction (Management) is ‘closely related to the Certificate III in Painting and Decorating. As such, the Tribunal has not relied upon that part of the Representative’s submission in making findings concerning the merits of the case.

3. The Tribunal, in determining whether the course undertaken by the applicant is ‘closely related’ to the descriptor for a Painting Trades Worker – ANZSCO 332211, is satisfied that the course of study undertaken by the applicant, in the broader context of the painting trades worker 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.”

4. The Tribunal finds that the applicant’s study for the specified qualification for the occupation of Painting Trades Worker – ANZSCO 332211, is supported by the attainment of both a Certificate III in Painting and Decorating and a Diploma of Building and Construction (Management) on the basis of the evidence, provided to the Tribunal at hearing, concerning the subject matters of both qualifications. In this regard, the Tribunal accepts that a majority of the content undertaken in the Diploma of Building and Construction (Management) has provided the applicant with specific knowledge relevant to the performance of his trade, including safety and risk management; interfacing with other trades groups within a single site construction zone; knowledge pertaining to compliance with legislative requirements within the industry; operational planning and invoicing, costing and financially controlling the execution of trade work.

5. As the applicant’s qualification is closely related to the nominated skilled occupation, the applicant meets cl.485.222.

6. Accordingly, cl.485.222 is met.

7. 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

8. 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 AM
   Member