Rodriguez Mendoza (Migration)

[2020] AATA 4836

Rodriguez Mendoza (Migration) [2020] AATA 4836 (19 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jhon Jairo Rodriguez Mendoza
Mrs Karlymg Antonia Rodriguez Medina

CASE NUMBER:  1801615

HOME AFFAIRS REFERENCE(S):          BCC2017/4479599

MEMBER:Kira Raif

DATE:19 October 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 19 October 2020 at 2:34pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Metal Fabricator – qualification ‘closely related’ to nominated occupation – Advanced Diploma of Business – Certificates in Engineering – significance of ANZSCO in determining the close relationship – Sub-Major Group 32 – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65

Migration Regulations 1994 (Cth), Schedule 2, cl 485.222

CASES
Chawdhury v Minister for Immigration & Anor [2010] FMCA 275

Kabir v MIAC [2010] FMCA 577

Manik v MIAC [2012] FMCA 149

Pasula v Minister for Immigration [2010] FMCA 219

Shafiuzzaman v MIAC [2011] FMCA 874

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 4 January 2018 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (‘the applicant’) applied for the visa on 27 November 2017. The delegate refused to grant the visa because the applicant did not satisfy cl.485.222 because the delegate was not satisfied the qualifications used to meet the Australian study requirement was closely related to the nominated occupation.

3. The applicants appeared before the Tribunal on 19 October 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages. The applicants were represented in relation to the review by their registered migration agent.

4. 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.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

6. 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 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 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.

7. Clause 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).

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

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant stated on the application form that he completed the following study in Australia

   02/15 – 06/15             Cert III in Engineering

   06/15 – 11/15             Cert IV in Engineering

   12/15 – 09/16             Diploma of Business

   11/16 – 09/17             Advanced Diploma of Business

9. The applicant had nominated the occupation of Metal Fabricator (ANZSCO 322311) in his application.

10. The application for the visa was made in January 2018. The Tribunal finds that the only qualification completed by the applicant in the 6 months before the application was made is the Advanced Diploma of Business. The Tribunal must be satisfied that the Advanced Diploma of Business is closely related to the occupation of Metal Fabricator.

11. The applicant provided written evidence to the Tribunal on 9 October 2020. The applicant provided evidence of his past study in Australia and a copy of his skills assessment. In his written submission the applicant refers to the qualifications he obtained in Australia, stating that the courses (which include Certificates in Engineering and a Diploma of Business) were offered as package courses and he was told by the education provider these were closely related and suitable for his Student visa. The applicant repeated that information in oral evidence to the Tribunal. The Tribunal is of the view, however, that the education provider’s determination that the courses were closely related for the purpose of a Student visa is not relevant to determining whether they are closely related to the nominated skilled occupation for the purpose of this visa. In particular, it would not have been possible for the education provider to determine what occupation the applicant (and other students) would nominate in their future Skilled visa applications and it is not the role of the education provider to determine the relationship between the packaged courses and a future occupation nominated by its students.

12. The applicant outlines the reasons he chose to study fabrication, including his past study overseas and the skills he wished to acquire. The applicant refers to ANZSCO major and minor groups. The applicant states that some of the units he completed in his Certificates are the same as the units he completed in the Advanced Diploma of Business and he described how the units he completed in the Business courses gave him the skills and the knowledge that he applies in his job.

13. In oral evidence, the applicant also provided a comparison of the subjects he had completed as part of the courses. He states that in the Certificates III and IV he did a subject called ‘organise and communicate information’ and this is closely related to the subject in the Advanced Diploma of Business called “manage knowledge and information’. The applicant states that what he studied is quite important to communicating information to managers and co-workers. The applicant gave examples why communication in the workplace is so important. The applicant states that there are similarities between skills and knowledge he acquired in these courses.

14. The Tribunal acknowledges the applicant’s evidence that there were subjects with some similarity of content, completed in the engineering and in the business courses. However, the Tribunal finds the assessment or comparisons of individual subjects within the different qualifications unhelpful. Firstly, the assessment must be between the qualification (in this case, the Advanced Diploma of Business) and the nominated occupation, not between the qualification and different qualifications (such as the Engineering certificates) completed by the applicant. It may be that the content of some of the subjects completed in the engineering qualifications is similar to the content of some of the subjects completed in the Advanced Diploma. It is difficult to see how such similarities, if they exist (and it is impossible to determine this by reference to the subject titles alone) would establish the close relationship between the qualification and the nominated occupation.

15. Secondly, the comparison must occur between the qualification as a whole and not a few individual subjects. The Tribunal accepts the applicant’s evidence that communication is important in his occupation. However, completion of a single or even a few subjects relating to communication (or other areas which the applicant claims can be used in his occupation) does not render the entire qualification closely related to the occupation as a whole. In the Tribunal’s view, communication and other skills to which the applicant refers and the knowledge of which he claims to have acquired in the Advanced Diploma course, do not necessarily form a meaningful part of the nominated occupation or they are so broad as to be applicable to every occupation.

16. The Tribunal is of the view that the applicant may establish no more than the usefulness of the knowledge he acquired in some subjects he completed as part of his Advanced Diploma course to the occupation. That is, communication is important in his job and the skills he acquired are useful for him to perform his duties. But being useful is not sufficient. The fact that the applicant utilises the knowledge acquired from a minor part of the course in his job does not render the entire course closely related to the occupation of a metal fabricator.

17. The applicant wife also gave evidence about the need to have business knowledge in daily tasks and responsibilities in the occupation of a metal fabricator. However, the Tribunal considers that the assessment must be undertaken by reference to the objective criteria for the occupation and not what the applicant does in his job. It is necessary for the Tribunal to objectively consider the relationship of the applicant’s qualification to the ANZSCO description of the occupation rather than relying on the applicants’ own description of what the occupation entails (Kabir v MIAC [2010] FMCA 577 at [70], Shafiuzzaman v MIAC [2011] FMCA 874 at [48]–[67]). The Tribunal notes, in that regard, Raphael FM’s comments in Chawdhury v Minister for Immigration & Anor [2010] FMCA 275 at 12:

    If the Tribunal was required to look at each individual’s specific job description then the requirements for the grant of the visa would take on a subjective element that would appear to be inconsistent with the scheme of the Migration Act. The ASCO definitions provide a useful and necessary guide which allows for consistency in decision-making that is of benefit to applicants, education providers, employers and decision-makers. It should not lightly be replaced by an applicant’s definition based upon his own employment conditions.

18. The Tribunal also relies on the reasoning in Manik v MIAC [2012] FMCA 149 and Talha which emphasise the significance of ANZSCO in determining the close relationship.

19. The applicant refers to ANZSCO hierarchy, stating that the nominated occupation is part of the Group 3223 Structural Steel and Welding Trade Workers and states that the activities stated in ANZSCO represent what he does on a daily basis and he has an understanding of the tasks which he can apply in the future.

20. The ANZSCO provides the following in relation to the nominated occupation.

    UNIT GROUP 3223 STRUCTURAL STEEL AND WELDING TRADES WORKERS
    
    STRUCTURAL STEEL AND WELDING TRADES WORKERS cut, shape, join and repair metal components of iron and steel structures, boilers, pressure vessels and pipes, ships and other vessels…

    Tasks Include:

    ·studying blueprints, drawings and specifications to determine job requirements

    ·selecting, cleaning and preparing metal stock

    ·cutting marked-out metal sections and shapes using hand tools, flame cutting torches and metal cutting machines

    ·shaping and bending metal sections and pipes using hand and machine tools, and by heating and hammering

    ·aligning parts to be joined using hand tools and measuring instruments

    ·joining metal sections using various welding techniques, bolting and riveting

    ·examining welds for width of bead, penetration and precision

    ·finishing products by cleaning, polishing, filing and bathing in acidic solutions

    ·cleaning and smoothing welds by filing, chiselling and grinding

    322311 METAL FABRICATOR

    
    Marks off and fabricates structural steel and other metal stock to make or repair metal products and structures such as boilers and pressure vessels.

21. The applicant and the representative state that the applicant is required to have the skills in a variety of areas such as HR management, manage knowledge and information, contribute to the company’s goals, manage and train staff. However, the description of the work of a metal fabricator relates almost entirely to technical skills. In the Tribunal’s view, HR management and staff training are not part of the nominated occupation while the other responsibilities to which the applicant refers, such as information management and contributing to the company goals, are so broad that they cannot be considered as tasks, skills or knowledge base that is inherent to the nominated occupation.

22. The Tribunal accepts that metal fabricators are part of the broader unit group which must also be considered. Minor Group 322 in turn forms part of a higher Sub-Major Group 32, which is called Fabrication Engineering Trades Workers. ANZSCO's description for Sub-Major Group 32 states that Fabrication Engineering Trades Workers cast, shape, cut, join and finish metal. Again, the Tribunal is not satisfied that management and HR and staff supervision or other business skills and knowledge form part of the sub-major group. That is, when considering the lower and the higher groups of ANZSCO, it is not apparent that even at a higher level, the broader skills to which the applicant refers form part of the ANZSCO description.

23. The representative refers to the Departmental policy and states that the knowledge and skills acquired in the Engineering courses are used in the nominated occupation, such as applying quality systems, manage processes, provide job training, planning, quality management, contributing to organisation development, etc. The Tribunal acknowledges that evidence but is mindful that the issue here is the Advanced Diploma of Business and not the Engineering courses. The applicant and the representative refer to the contribution to the Australian economy which the applicant claims he is able to make due to his knowledge and skills. Whether the applicant makes that contribution, the Tribunal notes that is it not a statutory criterion. That is, the applicant’s ability to contribute to the Australian economy does not render his qualification closely related to the nominated occupation. There is no statutory requirement that the applicant should be able to contribute to the Australian economy.

24. The applicant also told the Tribunal that he wanted to do a business course because he wanted to run his own business. He needs to have an understanding of the budget and risk management, dealing with clients and project management. The Tribunal accepts that the applicant has aspirations to do run his own business and if he does, he may require broader skills and business knowledge. However, the Tribunal must consider the applicant’s nominated occupation – that of a metal fabricator – and not an occupation that the applicant may choose to engage in in the future (see Pasula at [23]).

25. The applicant states that he was able to receive a TRA assessment. The Tribunal accepts that is the case, however, the TRA assessment does not consider the relationship between the qualifications and the nominated occupation. There is also little evidence to show that the TRA assessment was based on the Advanced Diploma of Business, so the fact that the applicant was able to obtain that assessment does not assist the Tribunal in establishing the close relationship.

26. Having considered the entirety of the applicant’s evidence, the Tribunal is not satisfied the Advanced Diploma of Business is closely related to the occupation of a Metal Fabricator. The Tribunal is not satisfied each qualification on which the applicant relied to meet the Australian study requirement is closely related to the nominated occupation. The applicant does not meet cl.485.222 and the secondary applicant does not meet the secondary criteria for visa grant. There is no evidence that the secondary applicant meets the primary criteria for visa grant.

    Conclusion

27. 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

28. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

    Kira Raif
    Senior Member