Sekhon (Migration)

[2020] AATA 2989

Sekhon (Migration) [2020] AATA 2989 (14 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Devinder Singh Sekhon

CASE NUMBER:  1837013

HOME AFFAIRS REFERENCE(S):          BCC2018/4569831

MEMBER:Warren Stooke AM

DATE:14 July 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 14 July 2020 at 3:37pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) –Australian study requirement – most recently completed course of study not closely related to occupation – tradesman completed trade management course – potential relevance of subjects of course to applied trade skills – ‘closely related’ – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.15F(1), (2), Schedule 2, cl 485.222

CASE

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 December 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 15 October 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 delegate found that the most recently completed course of study was not closely related to the occupation of Painting Trades Worker – ANZSCO: 332211.

4. The applicant appeared before the Tribunal on 7 July 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

6. The applicant confirmed to the Tribunal that he had received a copy of the delegate’s decision and had read the decision. In this regard, the applicant stated that he understood that the reason for the refusal to grant the visa was because the courses were not closely related.

7. The applicant confirmed to the Tribunal that he had provided a copy of the decision to the Tribunal with his application.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. The applicant is a 26 year from India, who provided evidence that he that he completed the following courses of study:

    a.Certificate III in Painting and Decorating from 15 March 2016 to 15 May 2017;

    b.Diploma in Building and Construction (Management) from 15 June 2017 and 15 June 2018.

11. The Diploma in Building and Construction (Management) transcript provided by the applicant identified completion of the following subjects:

    a.Administration of Legal Obligation of a Building or Construction Contractor;

    b.Manage personal work priorities, performance and development;

    c.Ensure team effectiveness;

    d.Manage quality customer service;

    e.Apply principles of OHS risk management;

    f.Recruit, select and induct staff;

    g.Manage construction works;

    h.Manage budget and financial plans;

    i.Manage operational plans;

    j.Support Employee Industrial Relations procedures;

    k.Select and manage Building and Construction Contractors

    l.Manage Environmental Practice and Processes in Building and Construction

12. The applicant provided evidence that he was successful with obtaining a provisional trade assessment with Trades Recognition Australia: TRA18/999324636 and had not yet obtained a skills assessment.

13. The applicant provided evidence that he has worked for 4 years as a painter with four employers, including Kuc Nominees Pty Ltd for 1.5 years and currently with R and D Bayside Painting Pty Ltd, since February 2020.

14. The applicant stated that his current remuneration is $32 per hour and that the materials and equipment are provided by the employer.

15. The Tribunal asked the applicant to explain how his most recent course is ‘closely related’ to the nominated occupation and the applicant provided a response against each of the subjects contained in the Diploma in Building and Construction (Management), in the submission and at hearing, as follows:

16. The applicant provided the Tribunal with details of the subjects studied for the Diploma in Building and Construction (Management), which was also addressed in evidence and included the following:

Course Name	Unit Description as per raining.gov.au
Administer the legal obligations of a building or construction contractor	This unit of competency specifies the outcomes required to administer the legal obligations of a building or construction contractor, including obligations as either party to a contract. It is concerned with licensing and/or builders' registration and other legislative matters as appropriate, and administering the systems through which the obligations of complying with legislation are fulfilled.
Manage personal work priorities and professional development	This unit describes the skills and knowledge required to create systems and process to organise information and prioritise tasks. It applies to individuals working in managerial positions who have excellent organisational skills. The work ethic of individuals in this role has a significant impact on the work culture and patterns of behaviour of others as managers at this level are role models in their work environment.
Ensure team effectiveness	This unit describes the performance outcomes, skills and knowledge required to facilitate all aspects of teamwork within the organisation. It involves taking a leadership role in the development of team plans, leading and facilitating teamwork and actively engaging with the management of the organisation. No licensing, legislative, regulatory or certification requirements apply to this unit at the time of endorsement.
Manage quality customer service	This unit describes the skills and knowledge required to develop strategies to manage organisational systems that ensure products and services are delivered and maintained to standards agreed by the organisation. It applies to individuals who supervise the provision of quality customer service within an organisation’s procedures framework by others. At this level, individuals must exercise considerable discretion and judgement, using a range of problem solving and decision making strategies.
Apply principles of OHS risk management	This unit describes the performance outcomes, skills and knowledge required to use a generic approach to identify hazards, and to assess and control occupational health
Recruit, select and induct staff	This unit describes the performance outcomes, skills and knowledge required to execute tasks associated with the recruitment cycle.
Manage construction work	This unit of competency specifies the outcomes required to manage construction work and/or projects, which may involve fulfilling single or multi-site commercial contractual obligations.
Manage budgets and financial plans	This unit describes the skills and knowledge required to undertake financial management within a work team in an organisation. It includes planning and implementing financial management approaches, supporting team members whose role involves aspects of financial operations, monitoring and controlling finances and reviewing and evaluating effectiveness of financial management processes.
Manage operational plan	This unit describes the performance outcomes, skills and knowledge required to develop and monitor implementation of the operational plan to provide efficient and effective workplace practices within the organisation's productivity and profitability plans.
Support employee and industrial relations procedures	This unit describes the skills and knowledge required to communicate and implement industrial relations policies and procedures to effectively represent organisations/employers. It applies to individuals who work in support positions, assisting others in dealing with industrial relations conflicts and issues.
Select and manage building and construction contractors	This unit of competency specifies the outcomes required to select and manage building and construction contractors. It covers the processes and practices involved in supervising the systems through which the selection and management of subcontract resources occurs within the organisation, and through which subcontracting needs are identified and quantified.
Manage environmental management practices and processes in building and construction	This unit of competency specifies the outcomes required to manage environmental management practices and processes in building and construction, as part of the organisation's overall management system.

Does the applicant meet the Australian study requirement?

1. 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.

2. ‘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: (LIN 19/085).

3. The Tribunal is satisfied that the applicant completed a course of study, in the English language and at an Australian institution in the 6 months prior to application, with the completion of a Diploma in Building and Construction (Management) at the Western Institute of Technology – CRICOS 0257G.

4. Further, the Tribunal is satisfied that the courses undertaken were completed (as defined: see r.1.15F(2)) in a total of at least 16 calendar months; and as a result of at least 2 academic years (as specified) study, whilst the applicant was the holder of a Student visa.

5. 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?

6. 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 IMMI 18/051 - Skilled visas.

7. The evidence provided by the applicant demonstrated that the primary qualification, as a Painter and Decorator, was undertaken by the applicant prior to 15 May 2017, which included a Certificate III in Painting and Decorating. Subsequently, the applicant completed a Diploma of Building and Construction on 15 June 2018. As such, the Certificate III in Painting and Decorating qualification was completed more than 6 months prior to the applicant’s application for a Subclass 485 visa.

8. Further, the Tribunal does not accept that the completion of a Diploma in Building and Construction (Management) (completed 15 June 2018) is ‘closely related to the occupation of Painting Trades Worker - ANZSCO 332211 based upon a review of the subjects contained in this course. In this regard, the Tribunal accepts that only 4 of the subjects have any potential relevance to the applied trade skills and this includes the following course subjects:

   a.Manage personal work priorities, performance and development;

   b.Manage quality customer service;

   c.Apply principles of OHS risk management;

   d.Manage Environmental Practice and Processes in Building and Construction

9. The Tribunal finds that the subject matter of the most recent course is 67 per cent managerially orientated and has no specific relationship to the trade occupation of Painting Trades Worker - ANZSCO 332211 and that the course is more closely related to business management and workplace management.

10. As such, the Tribunal does not accept that completion of a Diploma in Building and Construction (Management) is ‘closely related to the occupation of Painting Trades Worker - ANZSCO 332211, which includes the following general duties within the 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:

    ·erecting scaffolding and ladders, and placing drop sheets to protect adjacent areas from paint splattering

    ·preparing surfaces by removing old paint and wallpaper, fixing woodwork, filling holes and cracks, and smoothing and sealing surfaces

    ·selecting and preparing paints to required colours by mixing portions of pigment, oil, and thinning and drying additives

    ·applying paints, varnishes and stains to surfaces using brushes, rollers and sprays

    ·hanging wallpaper, matching patterns and trimming edges

    ·cleaning equipment and work areas

    ·may repair windows and replace glass in wooden and metal frames

    ·may 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.

    Skill Level: 3

11. The evidence provided by the applicant demonstrated that the primary qualification, as a Painter and Decorator, was undertaken by the applicant prior to further non related studies undertaken post 15 May 2017.

12. The Tribunal, in determining whether the courses undertaken by the applicant are ‘closely related’ to the Painting Trades Worker - ANZSCO 332211, is not satisfied, in the broader context of the painting and decorating trade occupation that management-based subjects are relevant to the application of trade skills. 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.”

13. As the applicant’s qualification is not closely related to the nominated skilled occupation, the applicant does not meet cl.485.222.

14. 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

1. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

   Warren Stooke AM
   Member