Singh (Migration)

[2020] AATA 3331

Singh (Migration) [2020] AATA 3331 (10 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amarjot Singh

CASE NUMBER:  1809805

HOME AFFAIRS REFERENCE(S):          BCC2017/4887154

MEMBER:Kira Raif

DATE:10 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 10 August 2020 at 2:30pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – graduate work stream – Australian study requirement – qualifications closely related to nominated occupation – tradesman studied trade management course – consideration of whole of study and whole of occupation – nature of occupation must be determined by reference to ANZSCO – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.222

CASES
Chawdhury v MIAC [2010] FMCA 275
Kabir v MIAC [2010] FMCA 577
Manik v MIAC [2012] FMCA 149
Shafiuzzaman v MIAC [2011] FMCA 874
Tahla v MIBP [2015] FCAFC 115
Tobon v Minister for Immigration [2014] FCCA 2208
Walia v MIBP [2015] FCCA 1949

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 19 March 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 20 December 2017. The delegate refused to grant the visa because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations. The delegate was not satisfied that the qualifications used to satisfy the Australian study requirement were closely related to the nominated skilled occupation. The applicant seeks review of the delegate’s decision.

3. On 22 July 2020 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 9 September 2020. On 10 August 2020 the applicant advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

   Relevant law

4. 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).

5. 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.

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

6. The applicant provided to the Tribunal a copy of the primary decision record.

7. The applicant stated in his application that he completed the following study in Australia

   04/15 – 06/16                  Cert III in Painting and Decorating
   07/16 – 06/17                  Diploma of Building and Construction (Management)

8. The applicant had nominated the occupation of Painting Trades Worker (ANZSCO 332211) in his application.

9. The application for the visa was made in December 2017. The Tribunal finds that the only qualification completed by the applicant in the 6 months before the application was made is the Diploma of Business and Construction (Management). The Tribunal finds that the applicant relied on that qualification to meet the Australian study requirement. The Tribunal must consider whether the Diploma of Business and Construction (Management) is closely related to the nominated occupation of Painting and Trades Worker.

10. In his written submission to the Tribunal dated 9 August 2020 the applicant confirmed that he completed the above qualifications. The applicant refers to the reasoning in Tobon v Ministerfor Immigration [2014] FCCA 2208, stating that it is necessary to adopt the skills based, rather than a tasked based approach to the determination. However, the Full Court in Tahla v MIBP [2015] FCAFC 115 cautioned against attempting to be too prescriptive by substituting a formula for the terms of the provision. The Full Court clarified that the findings in Tobon ought not to be read as derogating from the fundamental requirement that in conducting the evaluative exercise required by the criterion, consideration must be given to the whole of the Australian studies and the whole of the nominated skilled occupation.

11. The applicant submits that the authorities direct decision makers to consider ANZSCO as the primary point of reference but ANZSCO ‘has its limits’ and does not identify the skills needed to perform the specific tasks. The applicant submits that the Tribunal is not constrained by any specific skills list and should not be constrained to only determine direct, as opposed to associated skills, connected to the non-exhaustive list in ANZSCO. The applicant refers to the Australian government Job Outlook resource and the skills it specifies as necessary. The applicant states that these assist to define the set of skills associated with carrying on the nominated skilled occupation. The applicant submits that these allow for consideration of the occupation from the skills perspective, rather than the tasks perspective as required by Tobon.

12. The Tribunal does not accept the applicant’s submission. There are several authorities, which are binding on the Tribunal, confirming that the decision maker is entitled to give substantial weight to the contents of the ANZSCO descriptions. (See Manik v MIAC [2012] FMCA 149 and Talha v MIBP [2015] FCAFC 115, which suggests that the nature of the nominated occupation must be determined by reference to ANZSCO.)

13. The applicant has provided a list of knowledge areas and skills which he claims form part of the nominated occupation, by reference to a government resource. However, the Tribunal is of the view that it is necessary to objectively consider the relationship of the applicant’s qualification to the ANZSCO definition of the occupation rather than relying on the applicant’s own description of what the occupation entails or that from another source such as an employment resource designed for an entirely different purpose (see Chawdhury v MIAC [2010] FMCA 275 at [12], Kabir v MIAC [2010] FMCA 577 at [70], Shafiuzzaman v MIAC [2011] FMCA 874 at [48]–[67]).

14. The Tribunal considers that ANZSCO provides a comprehensive list of tasks performed within the occupation which allows for an objective consideration of the occupation. According to ANZSCO, the nominated occupation involves the following tasks

    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.

    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.

15. The Tribunal is mindful that the qualification completed by the applicant involves a management major. When the occupation is viewed as a whole, having regard to ANSZSCO, the Tribunal does not consider that management tasks, or skills relevant to management, form part of the work of a painting trades worker. The Tribunal further considers that the very broad and generic skills list proposed by the applicant, by reference to the Job Outlook government resource, is a selective offering which does not reflect the objective skills required for the specific occupation but may rather form a very basic skills base that may be useful for a number of occupations.

16. The applicant refers to several subjects he completed as part of the Diploma, stating that he acquired skills and knowledge, all or a substantial proportion of which, are directly connected with the nominated occupation. Again, the Tribunal considers that such comparison is erroneous as it seeks to link a number of subjects (even if it may be a substantial proportion of the course) with the nominated occupation, rather than the study as a whole against the nominated skilled occupation as a whole. That is not what the legislation requires - see Walia v MIBP [2015] FCCA 1949.

17. At best, the applicant may establish that the subjects he completed as part of his Diploma course would help him, or be useful to, his employment in the nominated occupation. That is not sufficient. The Tribunal finds that a ‘close relationship’ requires more than the usefulness of one to the other.

18. Having considered all the evidence before it, the Tribunal is not satisfied that the Diploma of Building and Construction (Management) is closely related to the occupation of Painting Trades Worker. The Tribunal is not satisfied each qualification used to meet the Australian study requirement is closely related to his nominated occupation. The Tribunal is not satisfied the applicant meets cl.485.222.

    Conclusion

19. 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

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

    Kira Raif
    Senior Member