1513109 (Migration)
[2016] AATA 4510
•13 October 2016
1513109 (Migration) [2016] AATA 4510 (13 October 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Mohammed Awaiz Talha
CASE NUMBER: 1513109
DIBP REFERENCE(S): BCC2011/341698
MEMBER:Lisa Lo Piccolo
DATE:13 October 2016
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Statement made on 13 October 2016 at 4:02pm
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 on 19 June 2012 to refuse to grant the applicant (Mr Talha) a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
Mr Tahla applied for the visa on 2 August 2011. At the time the visa application was lodged, Class VC contained two subclasses, 485 and 487. The completed application form indicates that the relevant subclass in this case is Subclass 485, the criteria for which 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.
The delegate refused to grant the visa because Mr Tahla did not satisfy cl.485.213(b) of Schedule 2 to the Regulations because the delegate was not satisfied that the qualifications used to satisfy the study requirement are closely related to Mr Tahla’s nominated skilled occupation of welfare worker. A copy of the delegate’s decision was provided to the Tribunal by Mr Tahla.
On 29 October 2013, the Tribunal affirmed the delegate’s decision and held that it was not satisfied that Mr Talha’s Australian studies were closely related to his nominated occupation, with the consequence that it was not satisfied that he met cl 485.213(b). .
The applicant initiated judicial review proceedings. By an application filed on 25 November 2013, Mr Talha sought judicial review of the Tribunal’s decision in the Federal Circuit Court. On 23 September 2014, Judge Riley dismissed his application (see Talha v Minister for Immigration & Anor [2014] FCCA 2191).
Mr Talha appealed that decision to the Federal Court. On 25 August 2015 the Full Federal Court (comprising Griffiths, Mortimer and Beach JJ) ordered that the order of the Federal Circuit Court be set aside, the decision of the Tribunal dated 29 October 2013 be quashed and that the Tribunal reconsider the matter according to law.
The applicant appeared before the Tribunal on 13 April 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The primary criteria for the grant of a Subclass 485 visa include a two pronged requirement that the applicant satisfies the ‘Australian study requirement’, on the basis of qualifications that are closely related to the occupation the applicant has nominated for the visa (cl.485.213). The issue in the present case is whether the applicant meets that requirement.
Does the applicant meet the Australian study requirement?
Clause 485.213(a) requires that the applicant satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the visa application date. 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.
‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see rr.1.03 and 1.15F, 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, ‘2 academic years’ is specified by the Minister to mean at least a total of 92 weeks, being the duration of a course or courses registered under s.9 of the Education Services for Overseas Students Act 2000.
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, as well as the detailed submissions and supporting materials provided by Mr Tahla’s representative and other material available to it from a range of sources.
The Tribunal finds based on the information provided by the applicant in the course of the visa application process and the review application process, and oral evidence at hearing, that the applicant has completed the following courses:
·Certificate III in Printing and Graphic Arts at Cambridge International College between 7 July 2008 and 8 May 2009);
·Certificate III in Business (Frontline Management) at Cambridge International College between 18 May 2009 and 12 July 2009);
·Diploma of Business (frontline Management) at Cambridge International College between 18 May 2009 and 26 February 2010;
·Certificate IV in Business at Acumen Institute of Further Education between 3 May 2010 and 1 November 2010;
·Diploma of Business at Acumen Institute of Further Education between 8 November 2010 and 1 August 2011.
Mr Tahla submitted a copy letter from Acumen Education dated 22 June 2012 stating that he completed a Diploma in Business course ‘on 27 July 2011 as per his Training Plan and course completion date mention in his certificate as 10 August 2011 as per his Certificate of Enrolment’. The letter further ‘affirms’ that Mr Tahla completed his studies by 27 July 2011 and was informed of his results on 1 August 2011. He also submitted a copy of the Training Plan Statement of Results as evidence that he completed his final subject on 27 July 2011.
On 18 September 2013 the Tribunal wrote to Acumen Education seeking confirmation from the education provider as to when Mr Tahla completed requirements for the award of a Diploma of Business course. On 19 September 2013, the student support officer from Acumen Education wrote to the Tribunal confirming that Mr Tahla completed requirements for the award of a Diploma of Business course on 27 July 2011.
On 26 September 2013, Mr Tahla submitted an amended PRISM extract as evidence that he completed the Diploma of Business at Acumen Education on 1 August 2011.
The Tribunal notes that the Federal Court in their decision of 25 August 2015 accepted the amended PRISM extract as evidence that he completed the Diploma of Business at Acumen Education on 1 August 2011
On the information available, the Tribunal is satisfied that the Diploma of Business was completed in the 6 months immediately before the visa application was made. The Tribunal finds that the Diploma of Business course was registered and completed in a total of at least 16 months and as a result of at least 2 academic years study and the instruction was conducted in English and Mr Tahla was the holder of a student visa during the relevant period.
The Tribunal finds, based on Mr Tahla’s studies in the Diploma of Business that he satisfies the Australian study requirement in the 6 months immediately before the visa application date, and therefore meets cl.485.213(a).
Is the qualification closely related to nominated occupation?
The criteria of for the grant of the visa also require that the qualification used to satisfy the study requirement is closely related to the applicant’s nominated skilled occupation (cl.485.213(b)). 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).
In this case, the applicant nominated the occupation of Engineering Technologist which is a skilled occupation specified in IMMI 12/023.
The words ‘closely related’ are not defined in the legislation. The Courts have considered the meaning of “closely related”. The Courts have noted that “if all or a substantial part of a diploma results in skills that form part of the skill set of the nominated skilled occupation, [the relevant criteria] would be satisfied: Tobon v Minister for Immigration & Anor [2014] FCCA 2208.
When this case was considered by the Federal Court, the Court held that the Tribunal erred by confining its approach to the weighing up of Mr Tahla’s Australian studies against specific tasks set out in the ANZCO occupation description. The Court stated that it is ultimately a matter for the primary decision-maker and, on a statutory review, the Tribunal, to decide whether an applicant’s Australian studies are “closely related” to his nominated skilled occupation. It also stated that the Tribunal ought to have regard to ANZSCO and all potentially relevant tasks which were applicable to the nominated occupation, and not simply confine itself to the relatively narrow statement of tasks in the relevant unit group or at the lower level of the specific occupation in ANZSCO. Essentially, it was the Court’s view that the ANZSCO Code needs to be read as a whole with a view to identifying and applying information which is relevant to an understanding of the whole of the nominated occupation. This case is now a leading authority on this issue.
In an earlier Full Court decision MIBP v Dhillon[1] (comprising Allsop, Murphy and Pagone JJ) (Dhillon), referring to the decision in Constantino v MIBP,[2] the Court stated [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].
[1] (2014) 227 FCR 525.
[2] [2013] FCA 1301 (Jacobson J, 4 December 2013).
What is clear is that the qualification and occupation do not require an exact correspondence,[3] however the relationship must be more than merely complementary.[4]
[3] MIBP v Dhillon (2014) 227 FCR 525 at [20].
[4] Uddin v MIAC [2010] FCA 1281 (North J, 8 November 2010) at [10]-[12]
It is also appropriate to objectively consider the relationship of Mr Tahla’s qualification to the ANZSCO definition of the occupation rather than relying on Mr Tahla’s own description of what the occupation entails or own view of the proximity of the qualifications to the nominated occupation.[5]
[5] Chawdhury v MIAC [2010] FMCA 275 (Raphael FM, 23 April 2010) at [12]. Manik v MIAC [2012] FMCA 149 (Smith FM, 28 February 2012) at [14].
The Tribunal notes that cl.485.213(b) requires that each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation. The Tribunal notes that, in order to satisfy the Australian study requirement Mr Tahla relied on completing Certificate III in Business (Frontline Management); Certificate IV in Business; Diploma of Business (Frontline Management) and Diploma of Business. In Manik v MIAC [2012] FMCA 149 (upheld on appeal in Manik v MIAC [2012] FCA 619) the court held that where more than one qualification is being relied on to meet the study requirement all the courses must be closely related to the nominated skilled occupation requiring a comparison between each qualification and the skilled occupation, not a comparison between the two or more qualifications. However, in this case, the Tribunal is of the view that if the Diploma of Business is “closely related” then cl.485.213(b)) is met. However, if the Diploma of Business is not closely related then cl.485.213(b) is not met – noting that the Diploma of Business is the only course completed 6 months immediately preceding the visa application being lodged (such that Mr Tahla meets the requirements in cl.485.213(a)).
In light of the Full Court’s decision, the Tribunal sets out below the tasks relevant to the classification of Engineering Technologist and the tasks set out in the higher classifications as set out in ANZSCO. Mr Tahla’s representative confirmed in her written submissions that these were the relevant ANZSCO classifications for the purposes of assessing whether the qualification is “closely related”.
In ANZSCO the nominated occupation of “Engineering Technologist” is located in the Major Unit Group 2339 “Other Engineering Professionals”, sub-major group 23 “Design, Engineering Science and Transport Professionals” and minor group 233 “Engineering Professionals”.
ANZSCO contains the following information in relation to Mr Talha’s nominated skilled occupation as “Engineering Technologist”:
233914 ENGINEERING TECHNOLOGIST
Analyses and modifies new and existing engineering technologies and applies them in the testing and implementation of engineering projects. Registration or licensing may be required.
Skill Level: 1
Specialisations:
Aeronautical Engineering Technologist
Agricultural Engineering Technologist
Biomedical Engineering Technologist
Chemical Engineering Technologist
Industrial Engineering Technologist
Mining Engineering TechnologistIn relation to major group 2339, Other Engineering Professionals, ANZSCO states as follows:
UNIT GROUP 2339 OTHER ENGINEERING PROFESSIONALS
This unit group covers Engineering Professionals not elsewhere classified.
It includes Aeronautical Engineers, Agricultural Engineers, Biomedical Engineers, Engineering Technologists, Environmental Engineers and Naval Architects (Aus) / Marine Designers (NZ).
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).
Registration or licensing may be required.
Occupations:
233911 Aeronautical Engineer
233912 Agricultural Engineer
233913 Biomedical Engineer
233914 Engineering Technologist
233915 Environmental Engineer
233916 Naval Architect (Aust) / Marine Designer (NZ)
233999 Engineering Professionals necIn relation to “Minor Group 233 Engineering Professionals”. The ANZSCO Code contains the following information in relation to that Minor Group:
MINOR GROUP 233 ENGINEERING PROFESSIONALS
ENGINEERING PROFESSIONALS design, plan and organise the testing, construction, installation and maintenance of structures, machines and their components, and production systems and plants, and plan production schedules and work procedures to ensure engineering projects are undertaken efficiently and in a cost effective manner.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this minor group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).
Tasks Include:
§ planning and designing chemical process systems, civil engineering projects, electrical power equipment and facilities, electronic components used in computer and industrial applications, mechanical equipment and systems, mining and drilling operations, and other engineering projects
§ drafting and interpreting specifications, drawings and plans, and determining construction methods
§ supervising the construction of structures, water and gas supply and transportation systems, and the manufacture, installation, operation and maintenance of equipment, machines and plant
§ organising and managing project labour and the delivery of materials, plant and equipment
§ estimating total costs and preparing detailed cost plans and estimates as tools for budgetary control
§ resolving design and operational problems in the various fields of engineering through the application of engineering technology .
This section contains the following subsection:
UNIT GROUP 2331 Chemical and Materials Engineers
UNIT GROUP 2331 Civil Engineering Professionals
UNIT GROUP 2333 Electrical Engineers
UNIT GROUP 2334 Electronics Engineers
UNIT GROUP 2335 Industrial, Mechanical and Production Engineers
UNIT GROUP 2336 Mining Engineers
UNIT GROUP 2339 Other Engineering ProfessionalsIn relation to Sub-Major Group 23, which is called “Design, Engineering, Science and Transport Professionals”, the ANZSCO Code contains the following information:
SUB-MAJOR GROUP 23 DESIGN, ENGINEERING, SCIENCE AND TRANSPORT PROFESSIONALS
DESIGN, ENGINEERING, SCIENCE AND TRANSPORT PROFESSIONALS fly and ensure the safe operation of aircraft, control and manage the operation of ships, boats and marine equipment, design buildings, landscapes and products for manufacture and visual communication, design plan and organise the testing, construction and maintenance of structures, machines, production systems and plants, and perform analytical, conceptual and practical tasks in relation to the chemical and physical properties of the universe, living organisms, and the environment.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this sub-major group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).
Tasks Include:
§ flying aircraft, and ensuring the safe and efficient operation of aircraft in flight and on the ground
§ controlling and directing the operation of ships, boats and marine equipment to ensure the safe and efficient loading and transport of cargo and passengers
§ designing products including furniture, textiles and maps, and physical structures and engineering systems
§ conducting research and practical tests to resolve design and operational problems
§ interpreting and analysing data from engineering and scientific experiments and tests
§ conducting experiments and tests to determine the chemical composition and reactive properties of natural substances and processed materials
§ analysing and describing living organisms and their interaction with their environment
§ advising on the use of natural resources, and discussing and making recommendations to individuals and groups about variables affecting land use
This section contains the following subsection:
MINOR GROUP 231 Air and Marine Transport Professionals
MINOR GROUP 232 Architects, Designers, Planners and Surveyors
MINOR GROUP 233 Engineering Professionals
MINOR GROUP 234 Natural and Physical Science Professionals
In assessing whether the qualifications are “closely related” to the nominated occupation the Tribunal had regard to ANZSCO, the oral evidence of the applicant, the subjects that comprised the relevant courses as set out in the statements of results and other materials provided by the applicant.
At the first Tribunal hearing on 20 September 2013, Mr Tahla told the Tribunal that the Frontline Management and Business Diploma will enable him to undertake management roles in the telecommunication field [at 24]. At the second hearing on 13 April 2016, Mr Tahla restated this position emphasising that the units in the courses he has studied have given him basic skills that are required in any workplace as an engineering technologist. He said that an engineering technologist is a specialist dedicated to the implementation of new and existing technologies. He said this involves the planning, modifying and testing of systems, and the performance of these duties requires the additional skills he has learnt in his management courses.
He told the Tribunal that he had a brief introduction to management topics in his Bachelor of Technology, Electronics and Communication Engineering. He provided the Tribunal with a copy of the course structure in which he studied subjects in managerial economics and financial analysis as well as management science in the third year of study. He said that they only touched on these topics but the inclusion of them in the course structure highlights that these skills are required for an engineering technologist. He said that the skills he gained from these courses in Australia are important to him performing his duties as an engineering technologist. He said that the ability to facilitate communications, troubleshoot problems, structure meetings, manage people and projects, manage data, prepare cost analysis’ and understand and apply business management tools are useful practical skills for an engineering technologist.
The Tribunal invited the applicant to comment on whether the subjects in the Diploma of Business are closely related to the various tasks in the hierarchy in ANZSCO. Mr Tahla told the Tribunal that the following subjects were included in the Diploma of Business:
·manage meetings;
·manage business document design and development;
·manage recruitment selection and induction processes;
·manage personal work priorities and professional development;
·manage risk;
·manage workforce planning;
·manage projects;
·manage payroll.
He said these units he studied are “basic things which are required for any workplace.” He said “it is not targeted at any specific thing”. He said he believes they “are basic requirements for any engineering industry” and they are “somehow embedded or required to achieve those targets in executing those programming or plans whichever are used in any engineering industry”. Mr Tahla conceded that not all subjects are closely related to the occupation but said most of the subjects are needed when working as an engineering professional.
In his written submissions of 25 September 2013, Mr Tahla submits that ‘business management courses’ are closely related to his nominated occupation of an Engineering Technologist because the labour market is looking for professionals who have the combined technical knowledge and business/management skills; that most engineering work is project driven and is it essential for engineering professionals to equip themselves with business management skills; that he would like to be a person with business skills who does not have to consult a technical specialist in order to win and negotiate projects; that during his bachelor degree course he studied Management Science and Managerial Economics; that he wants to work as a Project Engineering Manager, Program Director or Chief Engineering Officer so he can apply his engineering skills in his managerial role.
In further written submissions dated 17 February 2016, the representative submitted that “an assessment as a whole of the occupation shows that a necessary close relationship exists. The skill set underpinning the qualifications are directly transferrable to the nominated occupation in terms of both the subject matter and the level of qualification the skills acquired through the study of business are necessary to the nominated occupation given the realities if a dynamic and fluid job market where Engineering Technologists are called to work in a variety of business environments.” She also submits that his studies provide him with “hands on skills relevant to the day to day application of his work and supports his interactions with clients and colleagues alike … [and] necessary skills … required by an Engineering Technologist …”.
The written submissions also reference Engineers Australia’s Professional Development Policy for Engineers in Australia. That documents, which was provided to the Tribunal, requires that all individuals demonstrate 150 hours or structured CPD in a three year period – of which at least 10 hours must cover risk management and at least 15 hours must address business and management skills. It is submitted that this demonstrates that the peak body for engineers regard Mr Tahla’s skill set acquired through his business studies in Australia as an integral part of the skill set required by an Engineering technologist.
Finally, Mr Tahla’s representative submitted that Mr Tahla’s Australian studies in business and business (frontline management) and the skill set he has developed through this study is directly related and transferrable to his occupation as an Engineering Technologist. She referenced general information on the role of Engineering Technologists and that the role requires high level theoretical skills with a practical ability to manage projects. She also noted that technical management is an appropriate field of specialisation and a person may lead or manage teams appropriate to these activities. It was submitted that a reading of ANZSCO for engineers both the unit group and the minor group demonstrate that Mr Tahla’s Australian studies in business and business (frontline management) fall within the skill set required for an Engineering Technologist.
The representative conceded that Mr Tahla studies “what might be classified as general business or management studies” – but said, that “he, given his practical training is able to apply them to the specific requirements of his job and that is what makes them closely related to these skills or tasks that an engineering professional including an e t is required to have according to ANZSCO and more generally according to the practical requirements of a workplace and what engineering Australia says they require from professionals.”
The Tribunal has considered the tasks performed by an Engineering Technologist as described in Unit Group 2339 (as well as the information relating to the occupation of Engineering Technologist which was provided in that part of the ANZSCO Code which dealt with ANZSCO 233914) as well as the relevant tasks applicable to Engineering Professionals (Minor Group 233), of which Unit Group 2339 formed part. The Tribunal has also considered the higher level groupings within which the Engineering technologist occupation and Unit Group 2339 fall. In particular, the Tribunal has had regard to the information provided in Minor Group 233 Engineering Professionals and the description of relevant tasks, which includes the following:
§planning and designing chemical process systems, civil engineering projects, electrical power equipment and facilities, electronic components used in computer and industrial applications, mechanical equipment and systems, mining and drilling operations, and other engineering projects
§drafting and interpreting specifications, drawings and plans, and determining construction methods
§supervising the construction of structures, water and gas supply and transportation systems, and the manufacture, installation, operation and maintenance of equipment, machines and plant
§organising and managing project labour and the delivery of materials, plant and equipment
§estimating total costs and preparing detailed cost plans and estimates as tools for budgetary control
§resolving design and operational problems in the various fields of engineering through the application of engineering technology.
However, as stated by their Honours in Constantino v Minister for Immigration and Border Protection [2013] FCA 1301, [26], whether a qualification is is closely related to nominated skilled occupation requires “that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists”: And, after carefully considering all of the evidence before it, the Tribunal is not satisfied that the Diploma of Business is closely related to the nominated occupation of Engineering Technologist. The Tribunal accepts that in a general sense there is a relationship between the course subjects for the Diploma of Business and the tasks that engineering technologists perform. The Tribunal acknowledges that some of the relevant tasks listed in unit group 2339 are in the nature of business management tasks and are not confined to any particular field of engineering. The Tribunal also acknowledges that some of the above tasks include matters which, on their face, had a relationship with the courses completed by Mr Talha in his Australian studies. This fact was pointed out by their Honours in the Full Court decision.
The Tribunal also notes that the additional business qualifications may assist Mr Tahla to obtain employment in the engineering field as a Managing Engineering Technologist, a Project Engineering Manager, or even a Program Director. The skills set may also be helpful or assist him in his daily functions. However, the Tribunal is not satisfied that the Diploma of Business is “closely related” to the occupation of engineering technologist. The Tribunal does not consider that the subject matter in the Diploma of Business was closely related to the overall professional task as described in Major Group 2339, or to the role descriptions (either at the lower end or higher end of the hierarchy) or to the subsets of tasks specific to the occupation as described in ANZSCO, such that it could be satisfied that the Diploma of Business is closely related to the occupation. The Tribunal does not consider that a generic business course can be described as “closely related” to the occupation of engineering technologist just because an applicant is able to “apply them to the specific requirements of his job”. The Tribunal considers that it is, at best, a complementary qualification.
As the applicant’s qualification is not closely related to the nominated skilled occupation the applicant does not meet cl.485.213(b).
On the basis of the above findings, the Tribunal finds that the applicant does not meet the requirements of cl.485.213 and 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
The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Lisa Lo Piccolo
Member
8
0