Singh (Migration)

[2021] AATA 4105

Singh (Migration) [2021] AATA 4105 (19 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Vikramjeet Singh
Mrs Manpreet Kaur

CASE NUMBER:  1821326

HOME AFFAIRS REFERENCE(S):          BCC2018/1340249

MEMBER:Ian Berry

DATE:19 October 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 19 October 2021 at 11:57am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work Stream – Painting Trades Worker – Australian study requirement – Advanced Diploma of Marketing and Communication – qualification ‘closely related’ to nominated occupation – skills acquired from qualification – ANZSCO description – nominated skills for the occupation – plans to start own business in the future – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cls 485.221, 485.222

CASES
Prasad vs Minister for Immigration & Citizenship [2012] FCA 591
Talha v MIBP [2015] 235 FCR 100
Tobon vs Minister for Immigration & Anor [2014] FCCA 2208

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

2. The applicants applied for the visas on 21 March 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 (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 visas because the first named applicant (applicant) did not satisfy cl.485.222 of Schedule 2 to the Regulations because the specific skills gained by the applicant completing his Advanced Diploma of Marketing and Communication are inconsistent with the skills that would be used by him on a day-to-day basis as a Painting Trades Worker.

4. The applicant and his wife Ms Manpreet Kaur, both unrepresented, appeared before the Tribunal on 11 June 2021 to give evidence and present arguments. The Tribunal received oral evidence from the applicant. The Tribunal’s hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. On 11 August 2021, the Tribunal made a decision refusing the applicants’ application.

5. However, on 9 July 2021, the applicants appointed a registered migration agent Mr H S Bajwa (registered migration number 0955800) to represent them. Subsequently, the representative gave to the Tribunal the following submissions:

   a.A substantial number of payslips of the applicant’s employment with Multany Brothers Pty Ltd ranging from 2 September 2018 through to September 2019.

   b.A document of an unknown origin entitled ‘Important Skills for Constructions Jobs’.

   c.An index of documents for the Tribunal’s consideration.

   d.TRA Job Ready Final Assessment Outcome in respect of the qualification Certificate III in Painting & Decorating issued by the Della International College dated 13 May 2020.

   e.OBCO Migration & Educational Consultants invoice dated 31 May 2021 for AAT application processing charges $700.00.

   f.Response to hearing invitation for hearing on 29 September 2021.

   g.Submission by Mr H Bajwa migration representative of VEVO long Immigration & Education Consultant (nine pages).

   h.Submission by the applicant’s past employer Multany Brothers Pty Ltd (Mr R Singh) dated 22 September 2021.

   i.Construction Induction (Work Safe Victoria) issued to the applicant on 4 September 2018.

   j.Numerous payslips from the applicant’s 2021 employer The Trustee for Designer World Trust.

   k.Undated submission by the applicant (seven pages).

6. On 11 August 2021, the newly appointed migration representative wrote to the Tribunal questioning as to whether the Tribunal had:

   ‘considered my submissions or evidence emailed before the decision being made but after the hearing was conducted. Applicant contacted me after his hearing took place and was not satisfied with the way his previous agent helped him to present things before the AAT so he consulted me to provide additional evidence before the decision being made which I sent by email in early July. I also rang AAT and dropped about the documents emailed. However, I never received any confirmation of the same; please let me know if honourable member was made aware of my email sent?

7. By reason of the Tribunal deciding the application without referencing the further submissions made by the applicant’s newly appointed migration representative, the Tribunal decided to reverse its original decision as it may appear to have been jurisdictional error in not referencing the applicant’s most recent submissions. Consequently, the applicant was invited to a hearing on 28 September 2021.

8. The Tribunal exercised its discretion to hold the hearing by video. During the COVID-19 pandemic, special circumstances exist for the video hearing. The Tribunal also considered the Tribunal’s objective of providing a review that is fair, just, economical and expedient. A hearing by video achieved this end.

9. At the first hearing, the applicant Mr Vikramjeet Singh gave evidence on his own behalf. At the second hearing, the applicant gave minor evidence is the hearing considered submissions made on the applicant’s behalf and the relevance of those submissions to the legal position. Since that hearing the applicant’s migration representative, on 12 October 2021, made further submissions which the Tribunal sets out:

   ·A five-page submission.

   ·An article ‘Painting Trades Workers’ consisting of 16 pages.

   ·An article appearing to be a Canadian publication called ‘contractor’ obtained through the Internet with the article having the heading ‘marketing and organisation skills for professional painters’, dated 30 July 2014.

10. The applicants were represented in relation to the review by their registered migration agent Mr H S Bajwa, (migration agent registration number 955800).

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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 cl.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 before 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.

    Does the applicant meet the Australian study requirement?

13. 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.

14. ‘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).

15. The applicant’s studies as shown in the certificate statements of results and PRISMS[1] resulted in the following qualifications attained by him:

    [1] Provider Registration and International Student Management System

Qualification	From	To	Academic weeks
Diploma of Business	9 June 2012	7 December 2012	51
Advanced Diploma of Management	14 January 2013	30 December 2013	50
Certificate III in Painting and Decorating	25 May 2015	20 December 2015	100
Diploma of Building and Construction (Management)	25 January 2016	22 January 2017	52
Advanced Diploma of Marketing and Communication	30 May 2017	28 January 2018	52

1. The courses undertaken by the applicant which led to his attaining the above qualifications were CRICOS[2] registered courses and all were undertaken in English.

   [2] Commonwealth Register of Institutions and Courses for Overseas Students

2. The applicant’s qualifications were completed by him as a result of study over a period of at least 16 months.  He undertook studying those registered courses by holding a visa allowing him to study.

3. The table above sets out the academic weeks relating to each qualification achieved.  The applicant well exceeds 92 academic weeks.

   Satisfying the Australian study requirement within 6 months

4. The qualification Advanced Diploma of Marketing and Communication is the qualification which satisfied cl.485.221 where the applicant is required to complete a registered course within the six months ending the day immediately before making his application.

5. The Tribunal finds that the applicant satisfied the Australian study requirement in the six months immediately before 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 each qualification used to satisfy that requirement is 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.

   Talha vs Minister for Immigration and Border Protection [2015]

   22.The decisions in both the Federal Circuit Court and Federal Courts have a consistent approach to the meaning of those words. However, while the legislation does not define closely related,  it has been judicially considered in more recent times with the decision in the Full Court of the Federal Court’s decision in Talha v MIBP [2015] 235 FCR 100 (Tahla). At [53] the Full Court had this to say about the close relationship of the nominated skilled occupation and the applicant’s Australian studies:

   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)

7. In this case, the applicant nominated the occupation of Painting Trades Worker ANZSCO 332211 (nominated occupation) which is a skilled occupation specified in the relevant legislation.

   The whole of the qualifications compared with the whole of the nominated occupation

   ANZSCO [3]

   [3] Australian New Zealand Standard Classification of Occupations.

8. The nomination occupation is represented in ANZSCO by the code 332211 at the occupation level. ANZSCO’s structure has five hierarchical levels, from the broadest to the most detailed:

   ·Major Group level 3.

   ·Sub-Major Group  level 33.

   ·Minor Group level 332.

   ·Unit Group level 3322.

   ·Occupation level 332211.

9. Major Group level 3: Technicians and trades workers perform a variety of skilled tasks, applying broad or in-depth technical, trade or industry specific knowledge, often in support of scientific, engineering, building and manufacturing activities. The tasks included at this level are:

   ·Carrying out tests and experiments, and providing technical support to Health Professionals, Natural and Physical Science Professionals and Engineering Professionals.

   ·Providing technical support to users of computer hardware and software.

   ·Fabricating, repairing and maintaining metal, wood, glass and textile products.

   ·Repairing and maintaining motor vehicles, aircraft, marine craft and electrical and electronic machines and equipment.

   ·Constructing, repairing, fitting-out and finishing buildings and other structures.

   ·Operating printing and binding equipment.

   ·Preparing and cooking food.

   ·Sharing, caring for, training and grooming animals, and assisting veterinarians.

   ·Propagating and cultivating plants, and establishing and maintaining turf surfaces for sporting events.

   ·Cutting and styling hair.

   ·Operating  chemical,  gas ,  petroleum  and power  generation  equipment .

   ·Providing technical assistance  for the production, recording and broadcasting of artistic performances.

10. Sub-Major Group  level 33: 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 tasks included at this level are:

    ·Studying drawings and plans, and estimating quantities of materials required.

    ·Laying bricks and blocks, spreading mortar between joints, and removing excess mortar.

    ·Erecting frameworks, roof frames, roofs and walls.

    ·Laying flooring, carpets and tiles.

    ·Building and installing fittings.

    ·Making and installing glass products.

    ·Installing plumbing and drainage systems, gathering and other rainwater systems.

    ·Installing gas appliances and air-conditioning piping and ducting.

11. Minor Group level 332: Floor finishes and painting trades workers install and repair soft and resilient floor coverings, and apply paint, varnish, wallpaper and other finishes to protect, maintain and decorate the surfaces of buildings and structures. The tasks at this level include:

    ·Measuring areas to be covered and consulting plans to estimate quantities of floorcovering materials required.

    ·Preparing surfaces by removing old floor coverings, paint and wallpaper, fixing woodwork, filling holes and cracks, smoothing and ceiling surfaces, and removing baseboard trims.

    ·Measuring, cutting and fixing underlay materials.

    ·Laying underlay and covering materials on floors, matching patterns, cutting shapes around fixtures and trimming edges.

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

    ·Applying paints, varnishes and stains to surfaces using brushes, rollers and sprays, and hanging wallpaper.

12. Unit Group level 3322: Painting trades workers apply paint, varnish, wallpaper and other finishes to protect, maintain and decorate surfaces of buildings and structures. Tasks include the following:

    ·Erecting scaffolding and ladders, 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 ceiling 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; and may lay and repair wall and floor tiles.

13. Occupation level 332211 is the most specific level: Apply, a painting trades worker: ‘applies paint, varnish, wallpaper and other finishes to protect, maintain and decorate surfaces of buildings and structures. Skill level is 3.

    Applicant’s arguments

14. The applicant’s submission to the Department of Home Affairs and provided to the Tribunal for its consideration argued there is a close relationship between the applicant’s Advanced Diploma of Marketing and Communication, and his nominated occupation as a painting trades worker. The applicant states:

    ‘After completing Certificate III in Painting and Decoration, I decided to learn all the management and marketing skills necessary to run a business successfully, I wanted to make myself familiar with marketing strategies.  In today’s competitive world, your business cannot survive if you are unable to sell your product/service.  Therefore I studied Advance Diploma of Marketing and Communication.  Market research, leadership skills, strategic management, and organisational change are all major components of this course.  In this course I learned how to analyse, design and execute judgements using wide-ranging technical, creative, conceptual and managerial competencies’

15. Supporting that claim, the applicant’s qualification units of competency have been provided to the Tribunal and are as follows.

    Advanced Diploma of Marketing and Communication

1. The applicant’s qualification of the Advanced Diploma sets out the following units of competency:

   a.Develop an advertising campaign.

   b.Manage finances.

   c.Lead and manage organisational change.

   d.Provide leadership across the organisation.

   e.Develop and implement strategic plans.

   f.Develop and implement a business plan.

   g.Manage the marketing process.

   h.Manage market research.

   i.Develop organisational marketing objectives.

   j.Develop a marketing plan.

   k.Manage risk.

   l.Develop workplace policy and procedures for sustainability.

2. The above tasks are more suited to a managerial position over which that manager is more concerned with an organisation, Department or section and concerning a wide range of organisational activities. Developing marketing plans managing finances are all relating to the organisational direction, goals or strategies, rather than the physical aspect of painting and decorating. Not at any ANZSCO level is there a description or task directly or indirectly, dealing with advertising campaigns, business plans, market research or in managing organisational risk, or any other unit of competency referred to above.

   Diploma of Business

3. The applicant has not provided to the Tribunal the units of competency of the Diploma of Business. For that reason, it is difficult to assess that qualifications relevance to the nominated occupation. The title of the qualification itself strongly suggests that it does not involve the physical attributes required of a painting trades worker.

   Advanced Diploma of Marketing

4. This qualification again concerns tasks at an organisational level. The course units of competency consist of:

   a.Managing finances.

   b.Lead and manage organisational change.

   c.Develop and implement a business plan.

   d.Manage the marketing process.

   e.Manage market research.

   f.Develop organisational marketing objectives.

   g.Develop a marketing plan.

   h.Develop workplace policy and procedures for sustainability.

5. The Advanced Diploma of Marketing is very similar to the applicant’s Advanced Diploma of Marketing and Communication. It is relevant to tasks of managerial position at organisational, departmental or section depending on the size of the overall organisation.

6. The applicant sees a closely related connection between the applicant’s aspirational goals in his trades career and the qualifications achieved in his studies. The applicant has not provided the basis of the close relationship between the aspirational aims of a painting trades worker in ANZSCO. In practise, a trades worker who undertakes the tasks to which the competency units relate, would not be a trades worker.

   Diploma of Building and Construction (Management)

7. The following tasks are the units of competency which again are more relevant to management than to a trade:

   a.Manage budgets and financial plans.

   b.Support the recruitment, selection and induction of staff.

   c.Develop and use complex spreadsheets.

   d.Produce complex desktop published documents.

   e.Manage operational plan.

   f.Apply principles of OHS (occupational health and safety) risk management.

   g.Manage risk.

   h.Lead and manage a sales team.

   i.Contribute to the systematic management of WHS (workplace health and safety) risk.

   j.Manage personal work priorities and professional development.

   k.Ensure team effectiveness.

   l.Write complex documents.

8. This qualification is again managerial, and does not have a connection  with the tasks of a painter and decorator. There is no close relationship with between the trades worker and his manager. Fundamentally,  managerial position are generic to all business who are in the business of selling products or services.

   Advanced Diploma of Management

9. The applicant has not provided to either the Department or the Tribunal with his units of competency for this qualification. Again, by the qualification’s description it appears most unlikely to involve units of competency which favourably compared to the tasks in ANZSCO at all levels relevant to the nominated occupation.

10. The common feature of all the diploma’s units of competency, is the relevance to the management of an organisation, department, section or a small business. At all levels of ANZSCO there is no task or description referring to a painting trades worker having the attributes of a manager; developing using complex spreadsheets attending to recruitment selection and induction of staff. It does not refer to the leading and management of a sales team or ensuring that the team effectiveness is achieved and in writing complex documents.  In summary, this qualification does not have any connection or close relationship with that of the nominated occupation.

    Certificate III in Painting and Decorating

11. The nominated occupation is closely related to the tasks of the above qualification. To the Tribunal, the tasks are all relevant to the nominated occupation.  The tasks are:

    a.Work effectively and sustainably in the construction industry.

    b.Plan and organise work.

    c.Conduct workplace communication.

    d.Carry out measurements and calculations.

    e.Read and interpret plans and specifications.

    f.Calculate and cost construction work.

    g.Erect and dismantle restricted height scaffolding.

    h.Work safely at heights.

    i.Operate elevated work platforms.

    j.Apply OHS requirements, policies and procedures in the construction industry.

    k.Erect and maintain trestle and plank systems.

    l.Handle painting and decorating materials.

    m.Use painting and decorating tools and equipment.

    n.Remove and replace doors and door and window components.

    o.Prepare surfaces for painting.

    p.Apply paint by brush and roller.

    q.Apply texture coat paint finishes by brush, roller and spray.

    r.Apply paint by spray.

    s.Match specified paint colour.

    t.Apply stains and clear timber finishes.

    u.Remove graffiti and apply protective coatings.

    v.Apply protective paint coating systems.

    w.Implement safe lead paint and asbestos work practices in the painting industry.

    x.Apply advanced wallpaper techniques.

    y.Apply trailed texture coat finishes.

12. The Tribunal accepts that the Certificate III in Painting and Decorating is closely related to his nominated occupation. The tasks of the qualification clearly indicates the “physical nature” of the work of a painting trades worker.

    Applicant’s submissions

13. The applicant makes the argument that ‘under policy, the critical factor in determining whether a qualification is closely related to the nominated skilled occupation is whether the skill set/s underpinning the qualification/s are directly transferable to the nominated occupation, in terms of both subject content in the level of qualification at which those skills were attained by the nominee’ 

14. The applicant must provide the evidence for establishing the close relationship between the nominated occupation and the qualifications he has attained and relied upon, other than the Certificate III. It is not a valid argument to make a connection on the basis the applicant intends, at sometime in the future, he may start his own business. If that was an argument then all the qualifications could be used with any trade – the qualifications are generic.

15. The submissions made as late as 12 October 2021 persists with the argument that there is a close relationship based on the applicant’s aspiration in becoming a self-employed painter. The Tribunal is referred to many judgements including Tobin vs Minister for Immigration & Anor [2014] FCA CA 2208. Also Prasad vs Minister for Immigration & Citizenship [2012] FCA 591 (Prasad). The paragraph cited is [4] which the applicant’s representative states is an extract set out in the Department’s Procedures Advice Manual (commonly referred to as PAM3). The applicant has reproduced the following as to his meaning of the Department’s position:

    [4] Closely related certainly does not require an exact correspondence. As used adverbally, closely import same 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.

16. The Tahla decision represents the recent law which the Tribunal is obliged to following. It may be the latest interpretation of closely related, or more importantly redefining it as previous decision, while it may expressed in a  differently, is essentially authorites leading to Tahla. The Tribunal will be following Tahla.

17. As the applicant has quoted Prasad, paragraph 4 of that decision, as the Tribunal understands, is set out below:

    At the time, the Minister had promulgated a policy known as the Procedures Advice

    Manual, or colloquially, within public administration, “PAM 3.” That policy provided at

    para 7:

    Study and nominated occupation must be closely related

    7.1     Purpose

    The intention of the ‘closely related’ criterion in 485.213(b) is to support the policy objective that skilled migrants be “job-ready” for the Australian labour market and make a positive contribution to the Australian economy and society as soon as possible.

    7.2     Closely related

    …

    The ‘closely related’ requirement is to ensure that applicants have qualifications compatible with their nominated skilled occupation. Under policy, the critical factor in determining whether a qualification is closely related to the nominated skilled occupation is whether the skill set/s underpinning the qualification/s are complimentary and can be used in the nominated occupation, in terms of both subject

    matter and the level at which those skills were obtained.

18. The Tribunal has also carefully considered the latest submissions which do not advance or promote the applicant’s cause further than his previous submissions. For instance the extract from the decision in Prasad makes it clear that to the applicant must establish a relevant relationship between the nominated occupation of Painting Trades Worker and the applicant’s course of study. Does that not mean the applicant is required to compare the units of competency in his Advanced Diploma of Marketing and Communication and the ANZSCO levels that relate to a painting trades worker?

19. In ANZSCO there is no reference to a painter who has aspirations are running his own business; the need for a painter and to know marketing; how to manage a business or generally how to manage. There is a vast difference between the qualifications undertaken, other than Cert III. A painter is required to undertake the physical attributes of painting which are all set out in the Unit Group Level and the occupation of painting trades worker. The other qualifications clearly are more involved with management. The further submissions made by the applicant does not advance the applicant’s case. The Canadian article refers to that environment and to a contractor putting forward his business name in order to gain more work, understandably so.

    The Tribunal’s decision and reasoning

20. The Tribunal has considered each of the applicant’s qualifications and is satisfied that the Certificate III in Painting and Decorating qualification is closely related to the nominated occupation. However, the remaining qualifications do not show that close relationship as has been reasoned by comparing the units of competencies with the tasks included at all levels of ANZSCO.

21. As the qualifications used to satisfy the Australian study requirement (other than the Certificate III in Painting and Decorating are not closely related to the nominated skilled occupation, then the applicant does not satisfy the Australian study requirement as he does not meet 16 months of study; 25 May 2015 to 20 December 2015.

22. If the applicant does not satisfy the Australian study requirement, then he does not satisfy cl.485.222.

23. In respect of second named applicant, the Tribunal notes there is no information before it to suggest that second named applicant meets the primary criteria for the grant of the visa. The second named applicant applied for the visa because she was a member of the family unit of the applicant.  As the Tribunal has found that the applicant does not meet a criterion for the grant of the visa, the Tribunal must therefore affirm the decision in respect of second named applicant, as she was a member of the family unit of a person who did not satisfy the primary criteria for the visa.

24. 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

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

    Ian Berry

    
    

    Member