Albuquerque Figueiredo (Migration)

[2020] AATA 5755

Albuquerque Figueiredo (Migration) [2020] AATA 5755 (4 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Juliana Albuquerque Figueiredo
Mr Ismael Da Silva Raupp

CASE NUMBER:  1922912

HOME AFFAIRS REFERENCE(S):          BCC2019/1717302

MEMBER:Jennifer Cripps Watts

DATE:4 December 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

·cl.485.221 of Schedule 2 to the Regulations

·cl.485.222 of Schedule 2 to the Regulations

Statement made on 4 December 2020 at 11:20am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Plant or Production Engineer – Australian study requirement  – Advanced Diploma of Leadership and Management – qualification ‘closely related’ to nominated occupation  – ANZSCO tasks description – whether skills acquired from qualification directly transferable to nominated occupation – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cls 485.221, 485.222, 485.311

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 (the delegate) on 5 August 2019 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 7 April 2019. Relevantly, 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). 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 visa of the first-named applicant (the applicant) was refused because she did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate found that the applicant’s Australian study, Advanced Diploma of Leadership and Management, was not closely related to the nominated occupation of Production or Plant Engineer. The second-named applicant’s visa was refused because he was not a member of the family unit of a person who had been granted and held a Subclass 485 visa, as required by cl.485.311.

4. On 17 August 2019 the applicants lodged a review application and provided the Tribunal with a copy of the delegate’s decision.

5. The Tribunal invited the applicants, in writing, to attend a scheduled hearing to give evidence and present arguments and to provide any additional information in support of the application. The applicants attended their Tribunal hearing on 21 December 2020.  The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   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 includes cl.485.221 and 485.222 of Schedule 2 to the Regulations. The issue on review, which is the same that on which the visa was refused, is whether the applicant’s Australian qualifications meet the Australian study requirement and, if there is more than, are each closely related to the nominated skilled occupation.

8. The Tribunal has considered information relevant to the material issues on review contained in the Department and Tribunal files, together with oral evidence given at the scheduled hearing and any other information considered to be relevant.

9. The applicant provided detailed and well-reasoned written submissions prior to the hearing about the matters material to the issue on review, that is, whether the applicant’s qualifications meet the Australian study requirements and are closely related to her nominated occupation, Plant or Production Engineer, Australian and New Zealand Standard Classification of Occupations (ANZSCO) 233513.

   Does the applicant meet the Australian study requirement?

10. 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.

11. ‘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 LIN 19/085).

12. The applicant is a national of Brazil and in 2014 was awarded a Bachelor of Production Engineering by Faculdades Integradas Espirito, Santenses, Vitoria, Brazil.  This qualification is acknowledged but cannot be used to meet the Australian study requirement. 

13. In support of the visa application, the applicant is relying on two Australian qualifications awarded by Australian Pacific College, CRICOS Provider 01331F:

    i.Diploma of Project Management, completed 7 January 2018 (49 weeks)

    ii.Advanced Diploma of Program Management 10 February 2019 (49 weeks)

14. The applicant completed her most recent course on 10 February 2019 and lodged the online visa application on 7 April 2019.  Letters of completion and academic transcripts have been provided.  The Tribunal has examined them and is satisfied that, while holding a visa authorising study, in the six months immediately before the application was made, the applicant has completed a diploma/s (as defined in r.2.26AC(6)), which were registered courses (r.1.03) in a total of at least 16 calendar months (r.1.15F(2)), as a result of two academic years’ study and for which instruction was in the English language.

15. The Tribunal finds that the Australian study requirement is satisfied and that the applicant  meets cl.485.221.

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

16. 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).  The relevant instrument for this purpose is Legislative Instrument IMMI 19/051 which specifies the nominated occupation of Production or Plant Engineer, ANZSCO 233513.

17. In this case, the applicant nominated the occupation of Production or Plant Engineer, which is a skilled occupation specified in IMMI 19/051.

18. The Tribunal has had regard to the ANZSCO as a whole to identify and apply relevant information when considering whether the applicant’s qualifications are closely related to the nominated skilled occupation.  The applicant has combined two courses to meet the Australian study requirement and each courses must be closely related to the nominated skilled occupation. 

19. The skilled occupation of Production or Plant Engineer is included in the ANZSCO Minor Group 233, Engineering Professionals, described as those who ‘…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’.

20. Unit Group 2335 of the ANZSCO includes Industrial, Mechanical and Production or Plant Engineers.  It is indicated in the description that a Production or Plant Engineer (223512) ‘…plans, designs, organises and oversees the assembly, erection, operation and maintenance of mechanical and process plant and installations.’

21. The ANZSCO tasks for the unit group include:

    ·studying functional statements, organisational charts and project information to determine functions and responsibilities of workers and work units and to identify areas of duplication

    ·establishing work measurement programs and analysing work samples to develop standards for labour utilisation

    ·analysing workforce utilisation, facility layout, operational data and production schedules and costs to determine optimum worker and equipment efficiencies

    ·designing mechanical equipment, machines, components, products for manufacture, and plant and systems for construction

    ·developing specifications for manufacture, and determining materials, equipment, piping, material flows, capacities and layout of plant and systems

    ·organising and managing project labour and the delivery of materials, plant and equipment

    ·establishing standards and policies for installation, modification, quality control, testing, inspection and maintenance according to engineering principles and safety regulations

    ·inspecting plant to ensure optimum performance is maintained

    ·directing the maintenance of plant buildings and equipment, and coordinating the requirements for new designs, surveys and maintenance schedules

22. The applicant provided the Tribunal with her academic transcripts, which list the units of study undertaken in each of her qualifications meeting the Australian study requirement.  The applicant gave oral evidence at the hearing explaining why she considers the qualifications to the closely related to the nominated skilled occupation, including that she believes the acquired skills are transferable, in terms of subject matter and level of qualification, to the nominated skilled occupation.

23. The applicant’s Diploma of Project Management has 12 units with a focus on projects, including topics such as scope, time, quality, cost, human resources, risk, using emotional intelligence and managing work priorities.  The Advanced Diploma of Program Management also has 12 units of study indicating a higher and more in depth level of study of similar topics.  A ‘project’ may ordinarily have strictly defined outputs, where a ‘program’ may contain multiple ‘projects’ that benefit a whole organisation.      

24. The nominated skilled occupation of Production or Plant Engineer is contained in Minor Group 233 – Engineering Professionals.  The Tribunal has referred to the Engineers Australia MSA Booklet – March 2020 which includes, relevant to this case, a ‘Professional Engineer: General Description of Role’ (at p.31).  Engineering Australia is the assessing body, specified in the relevant instrument, IMMI 09/051.  In summary, they include in the description:

    ·    ‘That professional engineers are required to take responsibility for engineering projects and programs in the most far-reaching sense’

    ·    ‘…understanding the requirements of clients, wide ranging stakeholders and of society as a whole’

    ·    ‘…working to optimise social, environmental and economic outcomes over the full lifetime of the engineering product or program’

    ·    ‘Professional engineers may lead or manage teams appropriate to these activities…’

25. Throughout the description, the words ‘project’ and ‘program’ appear frequently.  It is noteworthy that in the Introduction of the Engineers Australia booklet, which lists some of the tasks or duties of a professional engineer, it is included that they apply ‘leadership and management skills’ (at p.5).

26. The documentary evidence and the applicant’s oral evidence have been considered carefully with reference to the question of whether the Tribunal can be satisfied that at least a substantial proportion of the skills acquired by the applicant from her Australian qualifications are directly transferable to the nominated skilled occupation.

27. In this case, the Tribunal is satisfied that a substantial proportion of the acquired skills, in each of the courses relied on by the applicant, and which the Tribunal has found meet the Australian study requirement, underpin relevant nominated skills for a Production or Plant Engineer.  They are skills that are more than ‘merely complementary’ to the role.  It is the Tribunal’s view that the acquired skills in this case equip the applicant with skills to carry on the nominated occupation at entry, or any, level of their career, for large or small projects, working alone, or in small or big teams.  The acquired skills are considered to be highly relevant to the tasks and attributes of a Professional Engineer, as it is described and detailed in the Engineers Australia booklet.

28. It is becoming increasingly important for professionals generally to become adept carrying on their profession, for example, remotely by video conference or phone, where facial and/or body visual cues may be absent and, for this purpose, where using emotional intelligence would be an effective way to engage.   Time management skills are no doubt important for an engineer, as accurate and well defined timelines are critical to the success of a project.  It has been submitted that even in the earlier stages of their career, a Production or Plant Engineer will be responsible for people and teams to progress and complete a project or program successfully and that even an entry level engineer may consider it important to already have chosen a style of leadership, through study, for that purpose.

29. It has been submitted, and is accepted by the Tribunal, that the ‘acquired skills’ of project time management and quality management, cost and risk management underpin the nominated skills.  As do the ‘acquired skills’ of adopting procedures and technologies to ‘handle changes in external conditions and the project environment’ in the area of organisational change, and the ‘acquired skills’ of being aware of and minimising negative environmental impacts in the area of sustainability.  These are a just few examples taken from the applicant’s academic transcripts.

30. Overall, having read the ANZSCO code as a whole, relating to the nominated skilled occupation of Production or Plant Engineer, having regard to all relevant information, including the Engineering Australian booklet, and having objectively considered the relationship of the applicant’s Australian qualifications to the ANZSCO definition of the occupation, the Tribunal is satisfied that the qualifications are closely related to the nominated skilled occupation.

31. As the applicant’s qualification/s is closely related to the nominated skilled occupation, the applicant meets cl.485.222.

32. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.221 and 485.222. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

33. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·cl.485.221 of Schedule 2 to the Regulations

    ·cl.485.222 of Schedule 2 to the Regulations.

    Jennifer Cripps Watts
    Member