Singh (Migration)

Singh (Migration) [2019] AATA 5321 (5 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Harpreet Singh
CASE NUMBER:  1709938
HOME AFFAIRS REFERENCE(S):          BCC2017/888980
MEMBER:Warren Stooke AM
DATE:5 August 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 05 August 2019 at 12:15pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – nominated occupation – not closely related – study did not satisfy requirement – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 485.222, 485.231, r 1.15F(1)
CASES

Talha v Minister for Immigration and Border Protection [2015] FCAFC 115

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 26 April 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 7 March 2017. Visa Class VC contains Subclass 485 (Temporary Graduate). 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), including criteria in different streams. In this case, the applicant is seeking to meet the criteria in the Post-Study Work stream, which include cl.485.231
The delegate refused to grant the visa because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations on the basis that the applicant’s completion of a Diploma of Management was not closely related to the nominated occupation of Motor Mechanic (General) ANZSCO 321211.
The applicant appeared before the Tribunal on 1 August 2019 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
At the commencement of the hearing, the Tribunal confirmed that the applicant had read the delegate’s decision of 26 April 2017 and that he understood the content of the decision.
The applicant confirmed that he had provided a copy of the delegate’s decision to the Tribunal with his application.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.221 and485.222of Schedule 2 to the Regulations. These require that the applicant must: first, have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made (cl.485.221); and second, 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.
The applicant gave evidence that he holds a Certificate III in Automotive Mechanical Technology (completed on 7 November 2012); a Certificate IV in Automotive Mechanical Diagnosis (completed on 2 February 2015), and a Diploma of Automotive Management (completed on14 June 2014), which are relevant to the occupation of Motor Mechanic (General) ANZSCO 321211.
Further, the applicant gave evidence that he holds a Diploma of Management (completed 14 December 2012); Diploma of Business (completed on 2 September 2015); and an Advanced Diploma of Leadership and Management (completed on 15 November 2016), which are subject to the submission by the applicant that these courses are closely related to the occupation of Motor Mechanic (General) ANZSCO 321211.
The applicant gave evidence to the Tribunal that he was looking at the automotive industry for work but did not get a chance. He stated that he is currently engaged as an Uber driver, which he has been doing for six months.
The applicant stated that he last worked in a workshop in February 2017 and from April 2016 to September 2016 he worked for All Right Mechanical, in Sunshine.
The applicant confirmed to the Tribunal that he had completed the following courses of study since his arrival in Australia on 4 September 2019:
·Cert IV in Business – 10 May 2010 to 7 Nov 2010
·Cert III in Automotive Mechanical Technology – 8 Oct 2010 to 6 May 2012
·Dip of Business – 15 June 2012 to 14 December 2012
·Dip of Automotive Management - 16 March 2013 to 14 June 2014
·Cert IV Automotive Mechanical Diagnosis - 7 July 2014 to 2 Feb 2015
·Dip of Business - 2 March 2015 to 2 Sept 2015
·Adv. Dip Leadership and Management - 10 Oct 2016 to 15 Nov 2016
The applicant stated that the scope of motor mechanic experience he possesses, includes:
·Service and repair work;
·Brake pads;
·Change of transmission oils;
·Change of timing belt;
·Change of radiators.
The applicant advised the Tribunal that he has a TRA assessment relating to his occupation as a motor mechanic.
The Tribunal asked the applicant to explain the relevance of the courses he had undertaken to the occupation of motor mechanic and he responded that he did not want to work as a mechanic but as a manger, associated with service and repairs, leadership and a safe workplace.
The applicant stated that during his period of work with All Right Mechanical in Sunshine, he relieved as the supervisor, where the business had six employees in a mix of facilities.
The Tribunal put to the applicant whether it was necessary to have experience as a mechanic before progressing to a supervisory position, and he agreed it was necessary.
In relation to the claim by the applicant to work as a manager, the Tribunal observed that the applicant had applied for the position of Motor Mechanic (General), which the applicant confirmed was the basis of the application.
The applicant stated that “local workshops are full – busy”.
The applicant confirmed to the Tribunal that his Bridging Visa allowed for full-time work.
Representative
The representative for the applicant submitted that applicants don’t get a job because of the visa conditions and that this was common practice with Bridging visas.
The representative submitted that the course he has studied in the last 6 months is not relevant to his skills.
Does the applicant hold a specified qualification?
Subclause 485.231(1) requires the applicant to hold a qualification or qualifications of a kind specified by the Minister. The relevant instrument for this purpose is IMMI 13/031 of the Register of Instruments - Skilled visas. In this case, the applicant gave evidence that he holds a Certificate III in Automotive Mechanical Technology (completed on 7 November 2012); a Certificate IV in Automotive Mechanical Diagnosis (completed on 2 February 2015), and a Diploma of Automotive Management (completed on14 June 2014), which the Tribunal considers are relevant to the occupation of Motor Mechanic (General) ANZSCO 321211.
Further, the applicant gave evidence that he holds a Diploma of Management (completed 14 December 2012); Diploma of Business (completed on 2 September 2015); and an Advanced Diploma of Leadership and Management (completed on 15 November 2016), which the Tribunal finds ‘prima face’ (pending a consideration of the ‘closely related’ status criteria hereunder) are courses of study not directly related to the occupation of Motor Mechanic (General) ANZSCO 321211.
Accordingly, cl.485.231(1) is met to the extent that the applicant has completed the relevant courses directly related to the occupation of Motor Mechanic (General) ANZSCO 321211.
Does the applicant’s study for the specified qualification meet the Australian study requirement?
Subclause 485.231(3) requires that the applicant’s study for the specified qualification or qualifications met the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made.
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,
·that were completed in a total of at least 16 calendar months,
·that were completed as a result of a total of at least 2 academic years study,
·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.
‘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).
The Tribunal finds that the applicant’s study for the specified qualification for the occupation of Motor Mechanic (General) ANZSCO 321211, where the Tribunal accepts that the completion of a Diploma of Automotive Management is relevant to the occupation (completed from 16 March 2013 to 14 June 2014)
Further, the Tribunal finds ‘prima face’ (pending a consideration of the ‘closely related’ status criteria hereunder) that the qualifications related to the occupation of Motor Mechanic (General) ANZSCO 321211 were completed more than six months immediately preceding the date of the visa application.
Accordingly, cl.485.231(3) is not met.
Are the qualifications 'closely related' to the nominated occupation?
The evidence provided by the applicant demonstrated that the primary qualification, as a Motor Mechanic, was undertaken by the applicant between 10 May 2010 and 2 February 2015, which included a Certificate III in Automotive Mechanical Technology (completed on 7 November 2012); a Certificate IV in Automotive Mechanical Diagnosis (completed on 2 February 2015), and a Diploma of Automotive Management (completed on14 June 2014).
Further, the Tribunal does not accept that the completion of a Diploma of Management (completed 14 December 2012); Diploma of Business (completed on 2 September 2015); and an Advanced Diploma of Leadership and Management (completed on 15 November 2016) are ‘closely related to the occupation of Motor Mechanic (General) ANZSCO, particularly given that the applicant had already completed a Diploma of Automotive Management (completed on14 June 2014), which would have provided study credits for subsequent business diploma courses undertaken by the applicant. The Tribunal finds that the subject matter of those business courses have no specific relationship to the occupation of Motor Mechanic (General) and that the courses more closely relate to business management, which is not the occupation that has been applied for in the applicant’s application.
As such, the Tribunal does not accept that completion of a Diploma of Management (completed 14 December 2012); Diploma of Business (completed on 2 September 2015); and an Advanced Diploma of Leadership and Management (completed on 15 November 2016) are ‘closely related to the occupation of Motor Mechanic (General) ANZSCO: 321211, which includes the following general duties within the descriptor:
“UNIT GROUP 3212 MOTOR MECHANICS
MOTOR MECHANICS repair, maintain and test motor vehicle and other internal combustion engines and related mechanical components.
Motor Vehicle Parts and Accessories Fitters are excluded from this unit group. Motor Vehicle Parts and Accessories Fitters are included in Unit Group 8994 Motor Vehicle Parts and Accessories Fitters.
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:
odetecting and diagnosing faults in engines and parts
odismantling and removing engine assemblies, transmissions, steering mechanisms and other components, and checking parts
orepairing and replacing worn and defective parts and reassembling mechanical components, and referring to service manuals as needed
operforming scheduled maintenance services, such as oil changes, lubrications and engine tune-ups, to achieve smoother running of vehicles and ensure compliance with pollution regulations
oreassembling engines and parts after being repaired
otesting and adjusting mechanical parts after being repaired for proper performance
odiagnosing and testing parts with the assistance of computers
omay inspect vehicles and issue roadworthiness certificates or detail work required to achieve roadworthiness
Occupations:
321211 Motor Mechanic (General)”
The evidence provided by the applicant demonstrated that the primary qualification, as a Motor Mechanic, was undertaken by the applicant prior to further non related studies undertaken post 14 June 2014.
The Tribunal, in determining whether the courses undertaken by the applicant are ‘closely related’ to the ANZSCO:321211 descriptor for a Motor Mechanic (General), is not satisfied, in the broader context of the automotive mechanical occupation, since 14 June 2014, 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.”
The Tribunal finds that the applicant’s study for the specified qualification has not satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application, as the last related in the automotive discipline of study was completed on 14 June 2014.
On the basis of the above findings, the Tribunal finds that the applicant does not meet cl.485.231. Therefore, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa, and as this is the only relevant subclass in this case, the decision under review will be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Warren Stooke AM
Member

[2019] AATA 5321

5 August 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness