Yousaf (Migration)

[2020] AATA 3706

Yousaf (Migration) [2020] AATA 3706 (1 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Imran Yousaf

CASE NUMBER:  1731073

HOME AFFAIRS REFERENCE(S):          BCC2017/3251787

MEMBER:Jade Murphy

DATE:1 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 01 July 2020 at 12:08pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – occupation of Painting Trades Worker – Australian study requirement – study closely related to the nominated skilled occupation – studies in Leadership and Management – course completed in the previous 6 months – applicant plans to start his own business – qualification not required to practise occupation – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.221, 485.222; rr 1.03, 1.15

CASES

Pasula v MIAC [2010] FMCA 219
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 Immigration and Border Protection on 20 November 2017 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 7 September 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 visa because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant’s qualification used to satisfy the Australian study requirement, namely an Advanced diploma of Leadership and Management, is closely related to his nominated occupation of Painting Trades Worker (ANZSCO 332211).

4. The applicant appeared before the Tribunal on 1 July 2020 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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).

7. The delegate refused the vis application on the basis that a qualification used to satisfy the Australian study requirement was not closely related to the applicant’s nominated skilled occupation so the issue in the present case is whether the applicant meets this requirement, pursuant to cl.485.222.

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

8. Clause 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 17/072.

9. In this case, the applicant nominated the occupation of Painting Trades Worker (332211) which is a skilled occupation specified in IMMI 17/072.

10. The delegate’s decision (and confirmed by the applicant at hearing) sets out the applicant’s study history as follows:

    ·Certificate III in Painting and Decorating - completed 25 August 2013

    ·Diploma of Building and Construction (Management) –completed 30 August 2014

    ·Advanced Diploma of Leadership and Management – completed 9 July 2017

11. As set out in the delegate’s decision, the applicant’s Advanced Diploma of Leadership and Management is required to satisfy the Australian study qualification in cl.485.221, and therefore must be deemed to be ‘closely related’ to the applicant’s nominated occupation.

12. The delegate refused this application because they did not consider that an Advanced Diploma of Leadership and Management was closely related to the nominated occupation of Painting Trades Worker. The delegate also looked at the ANZSCO description of Painting Trades Worker (and reproduced that description in the decision) and noted it did not contain any leadership and management related skills as benefiting the occupation. The delegate stated that although an Advanced Diploma of Leadership and Management could be capable of assisting in a future career plan, this was not enough to satisfy the delegate that it was closely related.

13. At hearing, the Tribunal asked the applicant whether he would like to respond to the delegate’s concerns as set out in the primary decision record.

14. The applicant responded that he maintains that all his three courses are related to his nominated occupation and that to work as a professional painter he needs leadership and management skills. He told the Tribunal that painters on site typically work in groups and it is important to be able to lead a group of tradespeople at any given time during an onsite job. The applicant further submitted that employers look for these types of qualifications when hiring professional painters and trades workers. The applicant also told the Tribunal that he would like to start his own business in the future and he therefore requires leadership and management skills.

15. The Tribunal notes the applicant’s submission that a painting trades worker requires leadership and management skills to be able to fulfil the role of an onsite painting trades worker and that they are desirable skills for prospective employers. However, the Tribunal is not persuaded that it is a skill set that is ‘closely related’ in the way that the Department’s policy manual suggests.

16. The PAM, item 19 that states that 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 notes that it is not bound by the Department’s policy but will have regard to it unless there is reason to depart from it.

17. Given this, the Tribunal considers leadership and management skills to be a level above that of an ordinary painting trades worker and although they are skills that are complementary to fulfilling the role, they are not on the evidence presented, something that underpins the role of a painter.

18. The Tribunal acknowledges the applicant’s submissions that an Advanced Diploma of Leadership and Management will assist his future career plan of owning his own business. However, it considers that the assessment of whether or not it is ‘closely related’ 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.

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

20. In the Tribunal’s view, if the applicant decides to run his own business, this also goes further than his nominated occupation of Painting Trades Worker. The Tribunal cannot consider the qualification in relation to the applicant’s future or intended occupations, rather than the nominated occupation.

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

22. Based on the above, having considered the evidence and submissions presented, as well as having regard to the ANZSCO definition[1] (albeit a general and flexible approach considering all attached groups and subgroups), the Tribunal is not persuaded that the applicant’s Advanced Diploma of Leadership and Management is closely related to his nominated occupation of Painting Trades Worker.

    [1] As required by Talha v MIBP [2015] FCAFC 115.

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

24. Based on 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 applicant a Skilled (Provisional) (Class VC) visa.

    Jade Murphy
    Member