Alvarez Arguello (Migration)

[2021] AATA 2323

Alvarez Arguello (Migration) [2021] AATA 2323 (25 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jesus Antonio Alvarez Arguello
Ms Yanire Andrea Villamizar Rodriguez

CASE NUMBER:  1916985

HOME AFFAIRS REFERENCE(S):          BCC2019/1970794

MEMBER:Nicola Findson

DATE:25 June 2021

PLACE OF DECISION:  Perth

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 25 June 2021 at 11:00am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – graduate work stream – Australian study requirement – qualifications closely related to nominated occupation – qualifications in leadership and project management and occupation of engineering technologist – comparison of units of study and other material to ANZSCO description – relationship more than merely complementary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 1.15F(1), Schedule 2, cls 485.221, 485.222

CASES
Tahla v MIBP [2015] FCAFC 115
Tobon v MIBP (2014) FCCCA 2208

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 on 19 June 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 17 April 2019. 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 the qualifications relied on by the applicant to satisfy the Australian study requirement were closely related to the applicant’s nominated skilled occupation.

4. The applicants were represented in relation to the review by their registered migration agent.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of material provided to it during the review process, pursuant to s.360(2)(a) of the Act.

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 include cl.485.221 and cl.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 before 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 those requirements.

8. When making the visa application the applicant nominated the occupation of Engineering Technologist.  He provided evidence that he completed an Advanced Diploma of Leadership and Management in the period April 2018 to March 2019, as well as a Diploma of Project Management in the period January 2017 to January 2018, both at Danford College in Australia.  The applicant had already completed a Bachelor Degree in Engineering in Columbia in 2014.

9. During the review process, the applicant’s migration agent provided a comprehensive written submission addressing the various requirements for the grant of the Subclass 485 visa, including the Australian study requirement.  He asserted that the skill sets that underpin the Advanced Diploma in Leadership and Management and Diploma of Project Management qualifications are directly transferable to the nominated occupation of Engineering Technologist, in terms of subject matter and the level at which those skills were obtained. He explained that Engineers Australia describes Engineering Technologists as, among other things, frequently “taking responsibility for engineering projects, services, functions and facilities within a technology domain, for specific interactions with other aspects of an overall operating context and for managing the contributions of their specialist work to a broader engineering system or solution” and to “lead teams responsible for the implementation, operation, quality assurance, safety, management, and maintenance of projects, plant, facilities, or processes within specialist practice areas of the technology domain.”  He notes that Engineers Australia indicate that the expertise of an Engineering Technologist “may be at a high level and fully equivalent to that of a professional Engineer”.

10. The representative then compared and drew parallels with each of the units of study in the Diploma courses with relevant Engineers Australia requirements.

11. A number of documents accompanied the submission to the Tribunal.  The Tribunal has considered this material, which includes:

    • the Engineers Australia Migration Skills Assessment Booklet, March 2020 which sets out the process for assessing whether an applicant has the necessary skills and qualifications for the occupation of Engineering Technologist;
    • a copy of the applicant’s skills assessment undertaken by Engineers Australia, dated 15 March 2019, confirming that the applicant demonstrated he has the competencies required for the occupation Engineering Technologist;
    • transcripts for the applicant’s Diploma and Advanced Diploma;
    • a copy of ANZSCO Unit Group 2339 which includes the ANZSCO description for the occupation;
    • the applicant’s Curriculum Vitae;
    • a bundle of documents, including job advertisements, highlighting the necessity of leadership and management, as well as project management skills for an Engineering Technologist.

12. The Tribunal has had regard to the ANZSCO description for the Unit Group 2339 - Other Engineering Professionals, Minor Group 233 Engineering Professionals, and the nominated occupation Engineering Technologist, which state 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:

    …
    233914 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 Technologist

    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

13. The Tribunal has also had regard to relevant case law including the Federal Circuit Court decision in Tobon v MIBP [2014] were the Court held that for a qualification to be closely related to the nominated skilled occupation, the decision maker must be satisfied that the study or training for which the qualification was granted conferred on the applicant skills, all, or a substantial proportion of which, that fall within the set of skills associated with the carrying out of the occupation. The Full Court in Tahla v MIBP [2015] FCAFC 115 clarified that the findings in Tobon ought not to be read as derogating from the fundamental requirement that in conducting the evaluative exercise required by the criterion consideration must be given to the whole of the Australian studies and the whole of the nominated skilled occupation

    Does the applicant meet the Australian study requirement?

14. 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.

15. ‘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.

16. The applicant has made the following claims regarding his study in Australia. He completed a Diploma of Project Management from 16 January 2017 to 14 January 2018, and an Advanced Diploma of Leadership and Management from 2 April 2018 to 31 March 2019, both at Danford College.  The Tribunal finds on the basis of material provided to the Department that the applicant has completed these qualifications as claimed.

17. The applicant is relying on these courses to meet the Australian study requirement. The delegate found the qualifications were not closely related to the nominated skilled occupation.

18. Having regard to CRICOS the Tribunal is satisfied the Diploma of Project Management is a registered course of 52 weeks’ duration conducted in English. It is also satisfied the Advanced Diploma of Leadership and Management is a registered course of 52 weeks’ duration conducted in English. The Tribunal is therefore satisfied the courses were completed as the result of a total of at least 2 academic years’ study. Having regard to the material from the educational institution the Tribunal is satisfied the applicant completed the study in the period January 2017 to March 2019, that is, at least 16 calendar months. The applicant’s movement records confirm that he was the holder of a Student visa in the period and therefore authorised to study.  The applicant completed his Advanced Diploma of  Leadership and Management in March 2019. This visa application was made in April 2019.

19. On the basis of these findings the Tribunal finds the applicant satisfied Australian study requirement in the 6 months immediately preceding the day the visa application was made.

20. Accordingly the Tribunal finds the applicant meets cl.485.221.

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

21. In addition, cl.485.222 requires each qualification used to satisfy that requirement is 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).

22. In this case, the applicant nominated the occupation of Engineering Technologist (ANZSCO 233914) which is a skilled occupation specified in the relevant instrument. 

23. The Tribunal has found on the basis of material provided to the Department that the applicant has completed a Diploma of Project Management and an Advanced Diploma of Leadership and Management. It has had regard to the transcripts for those courses which indicate that they are aimed at providing leadership, developing and implementing strategic plans and business plans, managing finances, human resources, risk and stakeholder relationships. The courses also included units on managing projects (including quality, cost, information and communication, governance, scope, time and procurement), leading and managing a team, managing knowledge, information, and organisational change. In considering whether these qualifications are closely related to the nominated skilled occupation the Tribunal has had regard to the ANZSCO descriptions set out above. It has also had regard to the material provided by the applicant from Engineers Australia.

24. The Tribunal is mindful that its role is to consider whether the qualifications are closely related to the skilled occupation. This does not require an exact correspondence, but the relationship must be more than merely complementary. While the Tribunal is entitled to give substantial weight to the ANZSCO descriptions it is also necessary to have regard to all other relevant information.

25. When considering the ANZSCO descriptions above, while that of Engineering Technologist focuses on the focuses on the technical aspects of the role, other engineering descriptions in the ANZSCO include duties that are of a managerial nature such as supervising, organising and managing, dealing with costs and resolving design and operational issues. The Tribunal also notes that the material from Engineers Australia sets out a need for Engineering Technologists to have the capacity to manage projects, lead teams, and to deal with a wide range of stakeholders. It notes that an Engineering Technologist must be able to determine client requirements, deal with a wide range of stakeholders and manage risk.   S/he must also be able to lead and manage teams appropriate to the activities of the given project.

26. The Tribunal has also considered the Court’s view in Tobon that the decision maker must be satisfied that the study or training for which the qualification was granted conferred on the applicant’s skills which fall within the set of skills associated with carrying out the occupation. It has looked at the whole of the occupation of engineer and his courses as a whole. The Tribunal is of the view that the applicant’s Australian qualifications have provided him with skills that fall within the set of skills associated with the role of an Engineering Technologist.  Overall, in the circumstances of this particular case, the Tribunal is satisfied the applicant’s Australian qualifications are closely related to his nominated skilled occupation.  Overall, in the circumstances of this particular case, the Tribunal is satisfied the applicant’s Australian qualifications are closely related to his nominated skilled occupation.

27. As the applicant’s qualifications are closely related to the nominated skilled occupation, the applicant meets cl.485.222.

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

    DECISION

29. 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.

    Nicola Findson
    Member