Bhaskar v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 320
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bhaskar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 320
File number(s): SYG 3079 of 2018 Judgment of: JUDGE GOODCHILD Date of judgment: 11 July 2023 Catchwords: MIGRATION - Application for a Skilled (Provisional) (Class VC) visa – whether the Administrative Appeals Tribunal correctly construed and applied cl 485.222 of Sch 2 of the Migration Regulations 1994 (Cth) – where the Tribunal fell into jurisdictional error in considering the applicant’s Australian study qualifications was ‘closely related’ to his nominated skilled occupation by determining the content of the nominated occupation without referring to the whole of the ANZSCO description of that occupation – applying Talha v Minister for Immigration and Border Protection [2015] FCAFC115 – jurisdictional error established – writ of certiorari issued – writ of mandamus issued. Legislation: Migration Regulations 1994
Legislative Instrument IMMI 16/059
Cases cited: Constantino v Minister for Immigration and Border Protection [2013] FCA 1301
Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157; (2014) 227 FCR 525
Singh v Minister for Immigration & Border Protection [2017] FCA 1108
Talha v Minister for Immigration and Border Protection (2015) 235 FCR 100
Division: Division 2 General Federal Law Number of paragraphs: 49 Date of hearing: 27 April 2023 Place: Sydney Applicant: Applicant in Person Solicitor for the First Respondent: Ms A Wong of Mills Oakley Lawyers ORDERS
SYG 3079 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VINAYKUMAR MISHRILAL BHASKAR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE GOODCHILD
DATE OF ORDER:
11 July 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the second respondent made on 21 September 2017.
2.A writ of mandamus issue requiring the second respondent to re-hear the application for review according to law.
3.The first respondent pay the applicant’s costs in a sum to be fixed if not agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GOODCHILD
This Judgment concerns an application made for a review of a decision made by the Administrative Appeals Tribunal on 9 October 2018. The Tribunal affirmed the decision of a delegate of the then Minister for Immigration not to grant the applicant a Temporary Graduate (Class VC) (subclass 485) visa.
ISSUE
The critical issue in this review is whether the Tribunal fell into jurisdictional error in considering whether the Australian study completed by the applicant was “closely related” to his nominated skilled occupation for the purposes of cl 485.222 of Schedule 2 to the then current Migration Regulations 1994 registered on 16 December 2016 (“the Regulations”).
The applicant is a citizen of India who applied for a Temporary Graduate (Class VC) (subclass 485) visa on 29 January 2017. In his visa application, the applicant nominated the skilled occupation of Information and Communications Technology (ICT) Business Analyst (ANZSCO Code 261111).
At the time of his application, the applicant listed the following as his relevant Australian educational qualifications:
(a)Diploma of Business Administration from 14 July 2009, completed in August 2010;
(b)Bachelor of Business (Information Systems) from 25 July 2011, completed 26 July 2013; and
(c)Graduate Diploma in Business from 11 November 2013, completed 7 November 2016.
On 23 June 2017, a delegate of the Minister refused to grant the applicant a graduate visa on the basis that the applicant’s Bachelor of Business (Information Systems) could not be relied on as it was completed more than six months prior to the applicant’s lodgement of his visa application. Further, as the delegate was not satisfied that the qualification on which the appellant relied to meet the Australian study requirement, the Graduate Diploma of Business, was “closely related” to the applicant’s nominated occupation, the applicant did not satisfy
cl 485.222 of Schedule 2 to the Regulations.
On 30 June 2017, the applicant lodged an application with the Tribunal seeking to review the delegate’s decision. On 9 October 2018, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant the visa because the applicant did not satisfy the Tribunal that the qualification, Graduate Diploma of Business, was closely related to the nominated occupation of ICT Business and Systems Analyst.
The applicant filed an application for judicial review of the Tribunal’s decision on 5 November 2018. The application for judicial review contained the following ground:
1.The Tribunal erred in law by holding that Graduate Diploma in business is not a closely related qualification to the ICT-Business Analyst occupation nominated in my 485 visa.
Particulars
The ICT Business Analyst occupation according to ANZSCO is also called as Business Consultant (ICT) or Business Administrator (ICT). The job scope of work according to ANZSCO includes predominantly among others (i) identifying inefficiencies and recommending optimal business practices and system functionality (ii) investigating and analysing business process and procedures (iii) formulate and document business requirements (iv) using project management methodologies to mange projects and plan cost (v) developing functional specifications for users based on domain knowledge of the business and giving inputs to system developer . It is submitted all the above requires specialised business knowledge in the carrying on of the business which I acquired during my graduate diploma in business.
The Tribunal failed to consider that the course I dd was a Graduate diploma course and minimum entry requirements was Bachelors degree. The Tribunal failed to consider my Graduate Diploma in Business developed my knowledge acquired during my Bachelors of Business (Information System) and hence it was closely related to the nominated ICT Business Analyst occupation specified in my 485 visa .. This approach of the Tribunal also vitiated the provisions of law resulting in miscarriage of justice.
(As per original)
The applicant’s application for judicial review proceeded to a hearing before me on 27 April 2023. At the hearing, the applicant appeared unrepresented, assisted by a Hindi interpreter, while the first respondent was legally represented. Orders had been previously made for the applicant to file any amended application, supporting affidavits and an outline of submission. Nothing was filed.
During the hearing I noted that a copy of the relevant ANZSCO document to which the Tribunal had regard was not included in the Court Book. The respondent filed and served an affidavit annexing the relevant ‘ANZSCO UNIT GROUP 2611 ICT BUSINESS AND SYSTEMS ANALYSTS’.
In my review of the application for the purpose of preparing this Judgment, I had regard to the decision of the Full Court in Talha v Minister for Immigration and Border Protection (2015) 235 FCR 100 (“Talha”). I formed the view that I should have regard to ALL of the sections of the ANZSCO code relevant to the applicant’s nominated skilled occupation. An email went to the first respondent requesting a copy of the relevant ANZSCO code in its entirety. I also invited the parties to provide any further submissions having regard to the Court’s determination in Talha.
The first respondent filed and served a further affidavit annexing the relevant ANZSCO code version 1.2, which contained the following sections:
·Major Group 2 Professionals
·Sub-Major Group 26 ICT Professionals
·Minor Group 261 Business and Systems Analyst, and Programmers
·Unit Group 2611 ICT Business and Systems Analysts
Neither party filed any further written submissions.
For reasons that will become clear, I find that the applicant’s application should be allowed. I find that the Tribunal in this case has erred in a similar fashion to the error identified by the Full Court in Talha (at [52]) as follows:
In our view, the Tribunal fell into jurisdictional error by confining its approach to the weighing up of Mr Talha’s Australian studies against the tasks for an Engineering Technologist as set out in Unit Group 2339 and in the occupation of Engineering Technologist. Notably, it made no reference to other potentially relevant tasks as described elsewhere in the ANZSCO Code relating to Engineering Professionals, which included Engineering Technologists. Having regard to the structure of the ANZSCO Code, as outlined above, the Tribunal ought to have regard to all potentially relevant tasks which were applicable to the occupation of Engineering Technologist 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 particular, the Tribunal ought to have included in the evaluative exercise the relevant tasks applicable to Engineering Professionals (Minor Group 233), of which Unit Group 2339 formed part. As is evident from the extract at [26] above, those tasks included many matters which, on their face, had a relationship with many of the courses completed by Mr Talha in his Australian studies. That was the essential point which Mr Talha made in his written statement, which was considered by the Tribunal, but which then failed to appreciate the significance to its task of the information in the higher groupings (which supported Mr Talha’s individual claims). The Tribunal erred in not taking into account the relevant information in those higher groupings. It adopted an unduly narrow and legally erroneous approach to its task, which involved jurisdictional error. Its error meant that it failed to discharge its statutory review obligation under s 348 of the Migration Act 1958 (Cth)
The Tribunal in the present case erred by confining its approach in the weighing up of the applicant’s Australian study against the tasks for an ICT Business and Systems Analyst as set out in Unit Group 2611 and made no reference to other potentially relevant tasks as described elsewhere in the ANZSCO Code relating to Major Group 2 Professionals and Sub-Major Group 26 ICT Professionals and Minor Group 261 Business and System Analyst, and Programmers.
In Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157; (2014) 227 FCR 525 (“Dhillon”), the Full Court said of the phrase “closely related”:
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].
What is meant by “closely related” is a matter of fact for the Tribunal to determine. It requires an evaluative task and the Tribunal has a “wide scope” to determine if the relevant qualification is “closely related” to the nominated occupation: Singh v Minister for Immigration & Border Protection [2017] FCA 1108 at [34].
THE TRIBUNAL’S DECISION
The Tribunal identified, correctly, that to be eligible for the visa, the applicant was required to meet the criteria in Part 485 Schedule 2 to the Regulations which included cll 485.221 and 485.222. Clause 485.221 requires the applicant to have satisfied the “Australian study requirement” in the six months immediately preceding the day on which the visa application was made, and cl 485.222 requires that each degree, diploma or trade qualification used to satisfy the Australian study requirement must be “closely related” to the applicant’s nominated skilled occupation.
The Tribunal identified that the only qualification the applicant completed in the six months before the visa application was made was the Graduate Diploma in Business and the Tribunal found that the applicant relied on that qualification to satisfy the Australian study requirement. The Tribunal then considered whether it was satisfied that this qualification was closely related to the nominated occupation of ICT Business Analyst.
The Tribunal identified the task performed by ICT Business Analysts which it summarised by reference to ANZSCO Unit Group 2611 as follows:
UNIT GROUP 2611 ICT BUSINESS AND SYSTEMS ANALYSTS
ICT BUSINESS AND SYSTEMS ANALYSTS work with users to formulate system requirements, develop system plans and documentation, review and evaluate existing systems, and design and modify systems to meet users’ business needs.
Non-ICT Business Analysts (for example, Management Consultants) are excluded from this unit group. Non-ICT Business Analysts are included in Unit Group 2247 Management and Organisation Analysts.
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. At least five years of relevant experience and/or relevant vendor certification may substitute for the formal 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:
• working with users to formulate and document business requirements
• identifying, investigating, and analysing business processes, procedures and work practices
• identifying and evaluating inefficiencies and recommending optimal business practices, and system functionality and behaviour
• using project management methodologies, principles and techniques to develop project plans and to cost, resource and manage projects
• taking responsibility for deploying functional solutions, such as creating, adopting and implementing system test plans, which ensure acceptable quality and integrity of the system
• creating user and training documentation, and conducting formal training classes
• developing functional specifications for use by system developers
• using data and process modelling techniques to create clear system specifications for the design and development of system software
• acting as a central reference and information source, providing guidance and assistance in the system project decision making process
Occupations:
261111 ICT Business Analyst
261112 Systems Analyst
261111 ICT BUSINESS ANALYST
Alternative Titles:
BA (ICT)
Business Consultant (ICT)
Identifies and communicates with users to formulate and produce a requirements specification to create system and software solutions.
Skill level: 1
Specialisation:
Business Systems Analyst
The Tribunal recorded the applicant’s argument in relation to ANZSCO that it does not detail the various contexts in which the occupation may be found or how its skills may be utilised, and therefore it provides only limited insight in respect of the skills set.
The Tribunal recorded the applicant’s argument that consideration should be given to the skills acquired as part of the course, rather than individual subjects. The Tribunal accepted that consideration is required of the entire course rather than individual subjects or components of the course. The Tribunal did not consider the applicant’s present employment and the tasks that he performs in his current job to be useful in determining the close relationship required by legislation.
The Tribunal considered the applicant’s argument that, by reference to ANZSCO, the occupation of ICT Business Analyst involves more of the management tasks in addition to the tasks related to the ICT. The decision records that the applicant stated that his qualification is compatible with the nominated skilled occupation, and the skills set underpinning the qualifications is complementary and can be used in the nominated occupation. The Tribunal accepted that that was the case, but formed the view that this went no further than establishing the usefulness or the relevance of one to the other. The Tribunal recorded that the legislation requires something more. The Tribunal recorded it needs to be more than complementary or useful, and stated with reference to the Full Court decision in Dhillon that it needs to be closely related.
The Tribunal further noted that for a qualification to be closely related to an occupation, the relationship between the skills gained in the qualification and the occupation must be more than merely complementary. It is not sufficient that the qualification has a broader relevance to the occupation.
The Tribunal accepted the following:
·That the applicant acquired general commercial skills and knowledge as part of his Graduate Diploma;
·That the applicant felt that such skills would be useful in his employment and has found these useful in his current job;
·That the applicant utilises the knowledge he acquired in the Graduate Diploma in his work;
·That the skills and the knowledge the applicant acquired in the Graduate Diploma are broader than those he acquired in the Bachelor degree; and
·That the skills and the knowledge of the applicant acquired through the Graduate Diploma are beneficial to him and are complementary to his career.
However, the Tribunal was not satisfied that such skills were closely related to the nominated occupation of ICT Business Analyst. The Tribunal formed the view that the applicant’s evidence established usefulness of the qualification to the nominated occupation but not the close relationship.
The Tribunal referred to the particularisation of ICT Business and Systems Analysts work contained in ANZSCO, referring to UNIT GROUP 2611 BUSINESS AND SYSTEMS ANALYSTS which says:
ICT Business and Systems Analysts work with users to formulate system requirements, develop system plans and documentation, review and evaluate existing systems, and design and modify systems to meet users’ business needs.
The Tribunal considered it “significant” that ANZSCO makes a distinction between ICT Business Analysts and other business professionals and expressly provides that non-ICT Business Analysts are excluded from this unit group and are included in another unit group as management and organisational analysts. The Tribunal considered that such distinction supported a finding that ICT Business Analysts work predominantly with systems and not more broadly with different aspects of business needs such as, accounting, marketing and other fields to which the applicant refers in the context of the skills acquired through the Graduate Diploma. The Tribunal considered that the applicant’s comparisons appear to be more useful in relation to non-ICT Business Analysts and other occupations such as business and management consultants. The Tribunal considered that the occupation of ICT Business Analyst is more specific than the applicant suggests.
The applicant’s legal representative before the Tribunal, Mr Baijal a registered migration agent, referred in his submissions to the broader ANZSCO groupings. He stated (at CB 94):
…whilst the ANZSCO definition of an ICT Business Analyst (ANZSCO Code 261111) sets out the core tasks of an ICT Business Analyst, it does not detail the various contexts in which this occupation might be found, or how its skills might be utilised. As a result, ANZSCO itself provides only limited insight in respect of the skill sets that might be complementary to this particular occupational classification.
An ICT Business Analyst belongs to ANZSCO sub-major occupational group 26, ‘ICT Professionals’, which includes minor group 261 ‘Business and systems analysts and programmers. This minor group includes occupations as diverse as ICT Business Systems Analysts, System Analysts, Business Consultants (ICT) and Business System Analyst. In addition, according to ANZSCO, Major Group 26 ‘ICT Professionals’:
...work with users to formulate system requirements, develop system plans and documentation, review and evaluate existing systems, and design and modify systems to meet users’ business needs.
Consequently, the occupations that come within this particular major occupational group reflect a broad range of different skill sets.
(As per original)
The Tribunal had no regard to that submission.
LEGISLATIVE CONTEXT
I propose to adopt the approach taken by the Full Court in Talha and briefly explain the legislative context in which the issue for determination falls for consideration.
The criteria for the relevant visa are set out in cl 485.22 of Schedule 2 of the Regulations. Clause 485.221 required that the visa applicant must have satisfied the “Australian study requirement” in the period of six months immediately before the day on which the visa application was made. A second requirement, in cl 485.222, was as follows:
Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant's nominated skilled occupation.
A further relevant requirement was imposed by cl 485.224. It required the visa applicant to establish, at the time of the decision concerning the visa application, that the applicant’s skills for his or her nominated skilled occupation “have been assessed by the relevant assessing authority as suitable for that occupation”.
The definition of “skilled occupation” is to be found in subregulation 1.15I of the Regulations, which provided as follows:
Skilled occupation
(1) A skilled occupation, in relation to a person, means an occupation of a kind:
(a)that is specified by the Minister in an instrument in writing to be a skilled occupation; and
(b)if a number of points are specified in the instrument as being available - for which the number of points are available; and
(c)that is applicable to the person in accordance with the specification of the occupation.
(1)Without limiting subregulation (1), the Minister may specify in the instrument any matter in relation to an occupation, or to a class of persons to which the instrument relates, including:
(a) that an occupation is a skilled occupation for a class of persons;
(b)that an occupation is a skilled occupation for a person who is nominated by a State or Territory government agency.
The meaning of “Australian study requirement” is to be found in subregulation 1.15F of the Regulations:
Australian study requirement
(1)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:
(a)that are registered courses; and
(b)that were completed in a total or at least 16 calendar months; and
(c)that were completed as a result of a total of at least 2 academic years study; and
(d)for which all instruction was conducted in English; and
(e)that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.
Note: Academic year is defined in regulation 1.03.
(2) In this regulation:
completed, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.
Note:The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for subregulation (2), before the award is formally conferred.
degree has the meaning given in subregulation 2.26AC(6).
diploma has the meaning given in subregulation 2.26AC(6).
trade qualification has the meaning given in subregulation 2.26AC(6).
The relevant Ministerial Instrument for the purposes of subregulation 1.15I is Legislative Instrument IMMI 16/059 (“IMMI 16/059”). The instrument specifies skilled occupations for the purposes of subregulation 1.15I and identifies the particular ANZSCO Code for individual skilled occupations and specifies relevant assessing authorities to conduct skills assessments. Relevantly to the applicant in this case, the entry in IMMI 16/059 relating to his nominated skilled occupation, i.e. ICT Business Analyst, was as follows:
Column A
OCCUPATION
Column B
ANZSCO CODE
Column C
COUNTRY
Column 3
ASSESSING AUTHORITY
ICT Business Analyst
261111
All
ACS
THE ANZSCO CODE
In Talha, with respect to the purpose of the ANZSCO Code, the Full Court said this (at [17]-[23]):
17. In view of its central significance in the present case, it is desirable to describe the relevant features of the ANZSCO Code. “ANZSCO” is an acronym for Australian and New Zealand Standard Classification of Occupations, 1st Edition (“the ANZSCO Code”). The ANZSCO Code replaced the previous ASCO directory. All occupations and jobs in the Australian and New Zealand labour markets which are undertaken for pay or profit, including jobs occupied by people working for themselves, are classified in the ANZSCO Code. The introductory section of the ANZSCO Code explains the concept of “a job” as meaning:
...a set of tasks designed to be performed by one person for an employer (including self-employment) in return for payment or profit. Individual persons are classified by occupation through their relationship to a past, present or future job.
18. “Occupation” is defined in the ANZSCO Code as “a set of jobs that require the performance of similar or identical sets of tasks”.
19. The introductory section of the ANZSCO Code also explains how occupations are classified. Occupations are classified according to their attributes and are grouped on the basis of their similarity into successively broader categories for statistical and other types of analysis. The occupations are then organised or classified into progressively larger groups on the basis of their similarities in terms of both skill level and skill specialisation. Details of the various hierarchies or groups are provided. “Occupation” is the most detailed level of classification. Occupations are distinguished from other occupations in the same unit group on the basis of detailed skill specialisation.
20. The notes explain that the classification of occupations is done according to two criteria, namely skill level and skill specialisation. “Skill level” is defined as a function of the range and complexity of the set of tasks performed in the particular occupation and is measured operationally by the level or amount of formal education and training, the amount of previous experience in a related occupation, and the amount of on-the-job training which is required competently to perform a set of tasks required for the occupation. Occupations are divided into five different skill levels. The highest skill level is Skill Level 1, which is defined as a level of skill commensurate with a bachelor degree or higher qualification, however, at least five years of relevant experience may substitute for the formal qualification.
21. The concept of “skill specialisation” is defined in the ANZSCO Code as a function of:
• field of knowledge required;
• tools and equipment used;
• materials worked on; and
• goods or services produced or provided.
22. It is important to understand the structure of the ANZSCO Code. It is divided into five “hierarchical levels”. Jobs are described at the most detailed level of classification as “occupations”. “Occupations” are then grouped together at a higher level of granularity to form “unit groups”, which in turn are grouped into “minor groups”. Minor groups are then aggregated to form “sub-major groups”, which in turn are aggregated at the highest level of granularity to form “major groups”. Significantly, in many cases, differing tasks are described at various levels of the hierarchy.
23. It should also be noted that the introductory section of the ANZSCO Code contains the following material as to its purposes:
This publication is a reference document intended to provide a detailed account of the content and structure of ANZSCO and to assist the interpretation of statistics classified to it. It is not intended as a means of assigning information about particular jobs to ANZSCO classes.
Care needs to be taken when assigning information about particular jobs to ANZSCO classes because the same job titles can be used in different industries to describe different occupations (e.g. business analyst). Additionally, the titles used in ANZSCO are not an exhaustive list of all titles used by people to describe an occupation (e.g. brickie).
Again, adopting the approach by the Full Court in Tahla, illustrating the structure of the ANZSCO Code by reference to the applicant’s nominated skilled occupation as “ICT Business Analyst”, the ANZSCO Code (2013, Version 1.2) contains that as reproduced in paragraph [19] of these Reasons and that was the sole content of the relevant ANZSCO Code that was referred to by the Tribunal. The structure of the relevant ANZSCO Code, the “hierarchical levels” are as follows: Major Group 2 Professionals; Sub-Major Group 26 ICT Professionals; Minor Group 261 Business and Systems Analysts, and Programmers; Unit Group 2611 ICT Business and Systems Analysts. Attached at Schedule ‘A” to this Judgement is the total content of the relevant ANZSCO Code.
As I have found, the Tribunal erred by confining its approach in the weighing up of the applicant’s Australian study against the tasks for 2611 ICT Business and Systems Analyst as set out in Unit Group 2611 and made no reference to other potentially relevant tasks as described elsewhere in the ANZSCO Code relating to Major Group 2 Professionals, Sub- Major Group 26 ICT Professionals and Minor Group 261 Business and System Analyst, and Programmers.
Applicant’s submissions summarised
At the hearing before me, the applicant made oral submissions to the effect that the Tribunal had failed to consider the Graduate Diploma in Business completed by him, and how that qualification, as he maintains, is closely related to the nominated occupation of ICT Business Analyst.
In the course of the hearing the applicant referred me to those copies of the course outline for each respective subject he had completed as part of the Diploma. Those subjects, according to the academic transcript, are the following, noting that the applicant was exempted for two other subjects (Marketing Management and Leveraging IT for Business Advantage):
·HI5007 Statistics and Research Methods for Business Decisions
·HI5001 Accounting for Business Decisions
·HI6005 Management & Organisations in a Global Environment
·HI6006 Competitive Strategy
·HI5003 Economics for Business
·HI5002 Finance for Business
The applicant relied upon the respective course outlines for each of the subjects above. Each course outline provided a subject overview, explains the rationale for the subject and identifies the subject objectives as well as the subject’s learning outcomes (knowledge and skills) for its graduates.
Although the applicant did not provide any further oral evidence to advance his judicial review application, he ultimately agreed, when asked, that it was his case that the knowledge and the skills from the subjects completed in his Graduate Diploma course, closely relate to the ICT Business Analyst occupation. It is prudent here, to summarise the learning outcomes (knowledge, skills, application of knowledge and skills) of each subject completed by the application as it appears in the course outlines, as follows:
Subject Subject objectives & learning outcomes HI5007 - Statistics and Research Methods for Business Decisions On completion of this subject students will be able to:
1. Develop an appropriate research methodology to achieve valid and reliable research outcomes in both qualitative and quantitative domains
2. Understand the relevant and utility of Action research, ethnography, grounded theory, participant observation, focus groups and other qualitative research methodologies
3. Select and apply appropriate quantitative and qualitative research methodologies to find answers to business problems and opportunities
4. Use enhanced statistical procedures in Microsoft Excel Extensions and SPSS to analyse research data
5. Prepare Research Reports containing recommendations which are supposed by valid and reliable research
HI5001 - Accounting for Business Decisions On completion of this subject you will be able to:
1. Understand the methods of preparation of accounting statements
2. Record business transactions in the journals and ledgers that make up a business’s accounting system
3. Understand and explain the choices and difficulties involved in accounting for receivable, payables, inventory, long-lived assets, accruals and prepayments
4. Use accounting information to help make managerial decisions, and understand the dangers of simplistic and naïve use of accounting date
5. Analyse a business’s published accounts and understand the limitations of so doing
Knowledge
- Obtain and contextualize business information for business accounting to explain and apply different concepts of costs to business decisions
Skills
- Demonstrate the ability to apply, analyse, synthesise and evaluate information from multiple sources to make decisions about the financial performance of entities including assets, liabilities, owner’s equity, revenue and expenses
Application of knowledge and skills
- Determine how various transactions will affect the accounting equation, the balance sheet, and the income statement
- Appreciate the difficulties and assumptions involved in the preparation of financial statements
- Interpret and comply with statutory requirements, organisational policies and procedures related to business accounting practices and demonstrate ethical and legal accounting practices
- Apply information technologies to accounting management practices
- Employ transaction data and financial statement analysis for data-driven decision-making
- Analyse cash flows and make recommendations in line with business objectives
- Assess the impact of taxation and other liabilities, relevant legislation and industry codes of practice on business and define management strategies
- Demonstrate the ability to communicate accounting information writing to a professional standard
HI6005 - Management & Organisations in a Global Environment Knowledge
- Graduates will be able to integrate theoretical and practical knowledge of Management and Organisations
Skills
- Graduates will be able to analyse complex problems relating to Management and Organisations and develop confidence in working with others to develop strategic options within rapidly changing business environments
Application of knowledge and skills
- Graduates will be able to apply theoretical and practical knowledge of Management and Organisations in the diagnosis of organisational issues and the formulation of appropriate strategies.
- Consider social and psychological factors that influence the management of groups and individuals in work settings, such as communication, leadership, decision-making, power, politics and job design and apply these to strategic management
- Articulate the impact of globalisation for countries and their populations at different stages of development
- Contextualise the changing roles and responsibilities of business towards stakeholders, and the sustainability of production systems and economic paradigms and synthesize change management processes
- Implement systems for managing diversity in a global operational setting
- Describe operational processes in both manufacturing and service industries, taking systems, supply chain and quality considerations
- Interpret and communicate issues in management and organizations in a global context within an organisation to develop innovative approaches for their integration in management strategies
- Research and apply various leadership theories, the practice of leadership and motivational techniques as factors of organisational management and change
- Develop a critical awareness of the policy tools used by governments and central banks in their efforts to manage the economy including: fiscal policy, monetary policy, exchange-rate and trade policies, as wee as supply-side policies
- Discuss current research associated with the consequences of global economic integration and its influence on business management and strategic development
HI6006 - Competitive Strategy Knowledge
- Graduates will be able to integrate theoretical and practical knowledge of Strategy including the use of strategy tools such as Porter’s Five Forces, SWOT, Life Cycle, Ansoff matrix, BCG matrix, Value Chain and Scenario planning
Skills
- Graduates will be able to analyse complex strategy environments and develop confidence in working with others to develop and evaluate strategic alternatives
Application of knowledge and skills
- Apply theoretical and practical knowledge of strategy in the diagnosis of strategy issues and the formulation of strategies
- Examine the key challenges companies face and have and contextualise the major approaches companies employ as they formulate strategy
- Critically analyse the relationship between and organisation’s strategy and its structure
HI5003 - Economics for Business On completion of this subject students will have:
1. A broad understanding of the principles of micro and macroeconomics in a variety of business environments
2. An understanding of productivity and its influence on business and national economic performance
3. An understanding of the likely impacts of fiscal and monetary policy and how they influence business decisions
4. A well-developed understanding of the language of economics and the tools of the economist
HI5002 - Finance for Business Knowledge
- Identify, examine and evaluate aspects of financial policy and performance with the context of particular economic settings.
- Evaluate and analyse the features of specific forms of domestic and international finance in dynamic circumstances
- Recognise the principles of risk minimisation strategies and how appropriate quantitative analyses can be used to construct appropriate financial tools to maximise returns
Skills
- Develop the ability to evaluate alternative growth scenarios and related financing needs
- Recognise the appropriate mix of financing for various stages of development
- Able to select appropriate risk minimisation strategies which are consistent with management policies and preferences
- Work collegially in a team environment in resolving complex business problems
Application of knowledge and skills
- A1 Apply financial management knowledge and skills in diverse and dynamic financial market settings
- A2 Be able to make decisions independently in a changing and challenging environment
- A3 Communicated financial management effectively through the preparation of business memos
First respondent’s submissions summarised
The first respondent submitted that there was no error in the Tribunal’s approach as it contended that the Tribunal correctly relied upon the statement of tasks in the relevant unit group, at the lower level of the specific occupation, to assess the degree of any relevant connection. The first respondent referred in its submissions to the Tribunal’s reliance upon Tahla (at [16]) where it appears to confine what the Full Court says at paragraph [53] of the discussion to consideration being required of the whole of the Australian studies, but neither the Tribunal nor the first respondent appreciated, it seems to me, what is “critical” in the “evaluative exercise” – “that the whole of Mr Tyler’s Australian studies be compared with the whole of his nominated occupation” referencing Dhillon and Constantino v Minister for Immigration and Border Protection [2013] FCA 1301.
CONSIDERATION
The applicant argued before the Tribunal that the occupation of ICT Business Analyst involves more of the management tasks in addition to the tasks related to the ICT. The applicant referred the Tribunal to different subjects which he claimed help him to analyse business and finance needs and explained how the different subjects helped in his current job. The Tribunal noted that the applicant argued that the Bachelor of IT was a theoretical course related to IT but he needed more commercial knowledge which he did not acquire as part of his Bachelor course. The Graduate Diploma was a more analytical and commercial base course that gave him that knowledge.
As I indicated at the outset, this review can be disposed of in similar terms to that in Talha. If one looks at the learning outcomes from the individual subjects of the applicant’s Graduate Diploma in Business, it is the case that information in the higher groupings of the ANZSCO Code may be considered specifically relevant to the applicant’s nominated occupation such that the necessary close relationship could be made out.
The Tribunal, by failing to apply all of the relevant aspects of the ANZSCO Code, had regard to too narrow a description of the relevant tasks identified in the ANZSCO Code relating to the applicant’s nominated skilled occupation.
CONCLUSION
The applicant’s application should succeed and the decision of the Tribunal should be quashed and a writ of mandamus should issue directing the Tribunal to determine the applicant’s application according to law.
The first respondent should pay the applicant’s costs of the application, if any.
I make orders accordingly.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild. Associate:
Dated: 11 July 2023
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