SINGH (Migration)

[2019] AATA 6078

SINGH (Migration) [2019] AATA 6078 (20 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr JASPREET SINGH
Mrs NARINDER KAUR

CASE NUMBER:  1712779

HOME AFFAIRS REFERENCE(S):          BCC2017/1902809

MEMBER:Jade Murphy

DATE:20 December 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 20 December 2019 at 8:40am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Advanced Diploma of Business – closely related’ to nominated occupation – Air-conditioning and Refrigeration Mechanic – ANZSCO description – applicant’s future business plans – decision under review affirmed

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

CASES
Pasula v MIAC [2010] FMCA 219
Tahla 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 Immigration and Border Protection on 1 June 2017 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 29 May 2017. 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 visas because the first named applicant (the applicant) did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied that applicant’s qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation.

4. The applicants appeared before the Tribunal on 27 November 2019 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 applicants were represented in relation to the review by their registered migration agent. The representative, Ms Merlino, attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 the requirements in cl.485.222.

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

8. 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).

9. In this case, the applicant nominated the occupation of Air-conditioning and Refrigeration Mechanic (ANZSCO 342111) which is a skilled occupation specified in IMMI 16/059.

10. In support of his application for review, the applicant’s representative submitted written submissions dated 20 November 2019 with supporting documents. These have been considered by the Tribunal.

    Hearing 27 November 2019

11. At hearing, the applicant confirmed his study history as follows:

    ·Advanced Diploma of Business –completed 30 March 2017

    ·Diploma of Business – completed 25 January 2015

    ·Certificate III in Refrigeration and Air-conditioning  – completed 21 September 2011

12. The Tribunal told the applicant that it considered the relevant qualification is the Advanced Diploma of Business given that is the qualification that the applicant completed within 6 months of lodging his application for this visa. The applicant confirmed that he understood.

13. The Tribunal told the applicant that the delegate did not consider that an Advanced Diploma of Business was closely related to his nominated occupation of Air-conditioning and Refrigeration Mechanic (ANZSCO 342111).  The delegate looked at the ANZSCO description of Air-conditioning and Refrigeration Mechanic (and reproduced that description in the decision) and noted it did not contain any business related activities. Although the delegate noted that a business qualification may possibly assist the applicant in his future career plan this did not satisfy the delegate that the applicant met the criteria in cl.485.222.

14. The Tribunal asked the applicant whether he wished to respond to the delegate’s concerns as expressed in the primary decision. The applicant told the Tribunal that he is planning to open his own business and that is why he wanted to study a business course. The applicant stated that his business qualifications taught him a lot of things which have already been explained in written submissions, for example running a business and customer satisfaction.

15. The Tribunal told the applicant that regulation 485.222 prescribes that the qualification used to satisfy the Australian study requirement be closely related to the applicant’s nominated skilled occupation. Having regard to the Department’s policy manual, the critical factor in determining whether a qualification is ‘closely related’ to the nominated skilled occupation is whether the skill set underpinning the qualification is directly transferable to the nominated occupation, in terms of both subject matter and the level of qualification at which those skills were obtained. The Tribunal noted it is not bound by the Department’s policy but will have regard to it unless there is reason to depart from it. The Tribunal told the applicant that it remained concerned that opening a business is not the day-to-day duties of an Air-conditioning and Refrigeration Mechanic. The Tribunal asked the applicant whether he would like to respond to the Tribunal’s concern in this regard to which he replied he did not.

16. At hearing, the applicant’s representative, Ms Merlino, reiterated the written submissions made on the applicant’s behalf on 20 November 2019. Ms Merlino directed the Tribunal to the matter of Tahla v Minister for Immigration and Border Protection [2015] FCAFC 115 and submitted the Tribunal would fall into error by looking at the ANSZCO description too narrowly. The Tribunal should engage in a broader assessment of the position, not just those covered in the ANZSCO code. Ms Merlino pointed to the written evidence from applicant that explains the tasks that he performed on a daily basis in his role with Singh’s Aircon. Ms Merlino submitted that the applicant utilised the skills from his Advanced Diploma of Business and gave examples of this. In addition Ms Merlino relied on the written submissions provided and maintained that the applicant’s business qualification is closely related to his nominated occupation of Air-conditioning and Refrigeration Mechanic as the skills are transferable and were undertaken on a daily basis in his work as a mechanic.

    Assorted Advertisements

17. In written submissions provided to the Tribunal, the applicant’s representative attached an assortment of advertisements obtained from for an Air-conditioning and Refrigeration Mechanic/technician as of 19 November 2019. The applicant’s representative submitted that in order to undertake the role of Air-conditioning and Refrigeration Mechanic in Australia, candidates are required to possess skills obtained in a Diploma and Advanced Diploma of Business. The key responsibilities from the advertisements were placed alongside the specific unit studied by the applicant in his Diploma or Advanced Diploma of Business.

18. The Tribunal has considered the applicant’s academic transcript as well as the tables set out in the written submissions attributing key responsibilities from the advertisements to skills learned in the applicant’s business qualifications. The Tribunal does not agree with the weight placed on the specific business units and the skills gained from his business qualifications in being able to carry out the listed key responsibilities.

19. In particular, the key responsibilities from the advertisements such as

    ·Ability to assist in training apprentices;

    ·Ensuring quality workmanship is maintained;

    ·Air conditioning installations, including split, ducted and package units across the domestic, commercial, industrial and mining markets;

    ·Service, maintenance and troubleshooting for the repair of split, ducted, cassette and package air conditioning systems;

    ·Service, maintenance and repair of commercial refrigeration units;

    ·Provide service, maintenance, and repairs to various types of refrigeration and air-conditioning equipment;

    ·Coordinate compile and submit the required paperwork and other procedures; and

    ·Maintain industry knowledge and monitor market

    appear to be more technical skills that the applicant would have learned in his Certificate III in Refrigeration and Air-conditioning qualification.

20. The remaining key responsibilities from the advertisements such as: 

    ·Ensuring deadlines are met;

    ·Build and maintain relationships with company clients;

    ·Establish and maintain strong client relationships;

    ·Determine job priorities and meet deadlines with minimal supervision;

    although they are skills which may be developed in a business qualification, the Tribunal considers them to be personal attributes of drive, organisation, time management and personality. While the Tribunal considers that these skills are helpful to anyone’s work performance in any occupation it finds that this is not a sufficient nexus to the specific position of Air-conditioning and Refrigeration Mechanic

21. Further, the Tribunal considers that if it were crucial for an applicant to have business qualifications, or even if they were highly desirable, a statement to that effect would be included in the advertisements as is the case with many roles that have educational pre-requisites. The Tribunal finds that business qualifications have not been referred to in these advertisements for an Air-conditioning and Refrigeration Mechanic.

    Mr Singh’s Previous Employment

22. In written submissions provided to the Tribunal, the applicant’s representative provided a reference from the applicant’s former employer and evidence of his employment as a Air-conditioning and Refrigeration Mechanic. Further, they identified that he used the following skills, obtained as a result of his business qualifications in his everyday duties during his employment:

    -Manage meetings

    -Manage programs that promote personal effectiveness; plan or review administrative systems; develop workplace policy and procedures for sustainability; lead and manage organisational change

    -Identify and evaluate marketing opportunities

    -Manage personal work priorities

    -Provide leadership across the organisation

23. Evidence of the applicant carrying out the above duties was submitted to the Tribunal in support. This evidence was accepted by the Tribunal.

24. As communicated to the applicant at hearing, the Tribunal does not dispute that business qualifications may assist the applicant to perform the ordinary duties of a Air-conditioning and Refrigeration Mechanic in a better or improved way. The Tribunal can see how this may be helpful for any occupation. However, this is not enough to satisfy the Tribunal that the two are closely related in subject matter.

    Business Skills Required to Run a Business

25. At hearing, the Tribunal told the applicant that the delegate noted that business qualifications may assist the applicant in his future career plan but that this did not satisfy the delegate that they were closely related to his nominated occupation. The Tribunal told the applicant that it shared this concern. The applicant did not have any further submission to make in response.

26. In written submissions, the applicant submits that he completed the Diploma and Advanced Diploma in Business with the anticipation of opening his own Air-conditioning and Refrigeration Business.

27. The Tribunal acknowledges this submission, however, the assessment must be against the nominated occupation and not against an occupation that the applicant wants to engage in in the future. As Smith FM stated in Pasula v MIAC [2010] FMCA 219 at [23]:

    …the relevance of a qualification for the purposes of Sch.2 cl.880.215 of the

    regulations must relate to the nominated occupation itself, and not to some different

    occupational classification which might later be pursued by the visa applicant, and

    which would then involve use of the two qualifications. If PAM3 suggested otherwise,

    then it would be giving advice flawed by error of law.

28. While that case considered to a different provision, the Tribunal finds that the same reasoning applies in relation to cl. 485.222.

29. In the Tribunal’s view, if the applicant decides to run his own business, his occupation may be that of a Business Manager or Air-conditioning and Refrigeration Mechanic Supervisor or Manager but not that of an Air-conditioning and Refrigeration Mechanic. The Tribunal cannot consider the relationship in relation to the applicant’s future or intended occupations, rather than the nominated occupation.

30. The Tribunal considers this a crucial point that carries no favourable weight for the applicant.

    ANZSCO description

31. In written submissions provided to the Tribunal, the applicant’s representative states that it ‘is apparent the review applicant’s business studies are specifically tailored to the air-conditioning industry and his role as a mechanic and is not a “general” business course without specific application to a certain industry.’ Further, the written submissions go on to state ‘we see little reason why the qualification cannot be considered closely related to the occupation of Refrigeration Mechanic in circumstances where the course itself is designed to “upskill” the Review Applicant after completing their base level refrigeration mechanic studies.’ The Tribunal finds that the evidence provided to the Tribunal by the applicant regarding his business qualifications do not support these submissions. The evidence provided attempts to demonstrate the relationship between the business qualifications and the position of Air-conditioning and Refrigeration Mechanic. However, in no way does the evidence go so far as to say this was a business qualification designed specifically for Air-conditioning and Refrigeration Mechanics, nor that it is a qualification to ‘upskill’ already qualified Air-conditioning and Refrigeration Mechanics. Based on the academic transcripts provided the Tribunal finds that the units completed were of a general business nature and could be undertaken by someone in any field of business. As a result of the submission not being borne out by the evidence, the Tribunal places no favourable weight on the applicant’s submission in this regard.

32. The applicant told the Tribunal both at hearing and in written submissions that the ANZSCO criteria should not be the sole determining factor in assessing whether the qualification is closely related and that the duties and responsibilities may not be reflected in the specific ANZSCO criteria for the nominated position. The Tribunal accepts this submission but finds that a common sense approach to the tasks of Air-conditioning and Refrigeration Mechanic as submitted by the applicant do not support a finding that business qualifications are closely related to the nominated occupation of Air-conditioning and Refrigeration Mechanic.

33. On the basis of the above findings, the applicant does not satisfy cl.485.222, as required 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

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

    Jade Murphy
    Member