Cuesta Moreno (Migration)

[2021] AATA 1650

Cuesta Moreno (Migration) [2021] AATA 1650 (19 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Mardeli Cuesta Moreno

CASE NUMBER:  1915312

HOME AFFAIRS REFERENCE(S):          BCC2019/1316855

MEMBER:Michelle East

DATE:19 March 2021

PLACE OF DECISION:  Perth

DECISION: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

Statement made on 19 March 2021 at 1:21pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Chemical Engineer – Australian study requirements – Diploma and Advanced Diploma of Leadership and Management – qualification ‘closely related’ to nominated occupation – Australian and New Zealand Standard classification of Occupations (ANZSCO) description – ability to manage projects, lead teams, deal with stakeholders and effectively communicate – 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

CASES
Constantino v MIBP [2013] FCA 1301
Talha v MIBP [2015] FCAFC 115

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 May 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 15 March 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 visa because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the qualifications on which the applicant relied to meet the Australian study requirement were closely related to her nominated application.

4. Before the hearing the applicant provided comprehensive and detailed submissions.  The Tribunal therefore was able to make a decision on the papers without the need for a hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.221 and 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.

   Does the applicant meet the Australian study requirement?

7. 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.

8. ‘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.

9. The applicant has provided evidence of completing a Diploma of Leadership and Management on 8 October 2017 and an Advanced Diploma of Leadership and Management on 23 November 2018.

10. The applicant has also provided a Skills Assessment Report from Engineers Australia dated 18 March 2019 which stated she was assessed as meeting the requirements for the qualification of Professional Engineer ANZSCO 233111.  She was assessed as Skill Level 1.

11. Based on the evidence provided on the website of the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS), the Tribunal finds that the duration of the Advanced Diploma course is 49 weeks and for the Diploma course is 52 weeks and that all instruction for both courses was in English.

12. As the requirement for a Subclass 485 visa is that the applicant must have completed at least 2 academic years of study, that is, at least 92 weeks consistent with the relevant instrument, the Tribunal is not satisfied that relying on her Advanced Diploma of Leadership and Management alone would satisfy the ‘Australian study’ requirement in the 6 months immediately preceding the day she made her visa application.

13. The ‘Australian study’ requirement does not require visa applicants to have completed a single course of study of 2 academic years’ duration.  The evidence before the Tribunal is that the applicant completed a Diploma of Leadership and Management on 8 October 2017 with a course duration of 52 weeks.  Accordingly, the Tribunal finds that the registered courses undertaken by the applicant have a total registered duration in excess of the requisite 92 weeks.

14. The Tribunal finds that the qualifications were a result of courses that were completed in a total of at least 16 calendar months and as a result of at least 2 academic years (as specified) study.  The Tribunal finds on the information before it that all instruction for the courses was conducted in English and that the applicant held a number of student visas which authorised study throughout this period.

15. The Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application.  Therefore, the applicant meets cl.485.221.

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

16. 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).

17. In this case, the applicant nominated the occupation of Chemical Engineer (ANZSCO 233111) which is a skilled occupation specified in the relevant instrument.  The issue, therefore, is whether the applicant’s qualifications are ‘closely related’ to her skilled nomination.

18. The term ‘closely related’ is not defined in the Regulations.  However, the term has been considered by the Full Federal Court of Australia in the decisions of MIBP v Dhillon (2014) 227 FCR 525 and Talha v MIBP [2015] FCAFC 115 as well as the Federal Court of Australia in its decision in Constantino v MIBP [2013] FCA 1301. The Tribunal has been guided by these cases in its consideration of the issue presented in the applicant’s case.

19. The leading authorities on the issue of whether a qualification used to satisfy the Australia study requirement is ‘closely related’ to the applicant’s nominated skilled occupation establish that while the words ‘closely related’ are not defined in legislation they do require and call attention to the connection between two things.  Although the words ‘closely related’ do not require an exact correspondence, the relationship must be more than merely complementary.

20. In making the assessment, the Tribunal has considered the nature of the nominated occupation as determined by reference to the Australian and New Zealand Standard classification of Occupations (ANZSCO) and has read the ANZSCO as a whole with a view to identifying and applying information which is relevant to an understanding of the whole of the requirements of the nominated occupation.

21. The Tribunal received the following documents and submissions from the applicant:

    -Submission dated 3 March 2021

    -‘Chemical Engineer Statement’ from Mr Ahmed Ibrahim, Service Delivery Manager,  Baker Hughes

    -Witness statement of Harishiva Thammishetty, Chemical Engineer of Schlumberger dated 23 February 2021

    -Commentary on the tasks as set out in ANZSCO by the applicant

    -A document containing a collection of statements from various reports, articles and journals highlighting the necessity of leadership and management skills for a chemical engineer

    -Assessment of skills from Engineers Australia dated 18 March 2019

    -Academic Transcript and Transcript of Results for the Advanced Diploma and Diploma of Leadership and Management

    -A comparison of the units undertaken for the leadership and management courses and the tasks outlined in ANZSCO

    -Booklet from Engineers Australia dated March 2018

    -Decision in Ramirez Moreno (Migration) [2019] AATA 5911

22. The Tribunal has had careful regard to the documents provided by the applicant as well as the ANZSCO description for the Unit Group 2331 which states as follows:

    UNIT GROUP 2331 CHEMICAL AND MATERIALS ENGINEERS

    
    CHEMICAL AND MATERIALS ENGINEERS design and prepare specifications for chemical process systems and the construction and operation of commercial-scale chemical plants, supervise industrial processing and fabrication of products undergoing physical and chemical change, and investigate the properties of metals, ceramics, polymers and other materials and assess and develop their engineering and commercial applications.

    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.

    Tasks Include:

    a.preparing designs for chemical process systems and planning control systems for processes such as those used to remove and separate components, effect chemical changes, test and evaluate fuels, transfer heat, and control the storing and handling of solids, liquids and gases

    b.monitoring the operation and maintenance of equipment to achieve maximum efficiency under safe operating conditions

    c.ensuring correct materials and equipment are used and that they conform to specifications

    d.diagnosing malfunctions in chemical plants and instituting remedial action

    e.studying product utilisation and pollution control problems

    f.reviewing plans for new products and submitting material selection recommendations in accordance with design specifications and factors such as strength, weight and cost

    g.planning and implementing laboratory operations to develop new materials and fabrication procedures for new materials to fulfil production cost and performance standards

    h.conferring with producers of materials, such as metals, ceramics, polymers, cements and elastomers, during the investigation and evaluation of materials suitable for specific product applications

    i.reviewing product failure data and implementing laboratory tests to establish or reject possible causes, and advising on ways to overcome any problems

    
    Occupations:

    233111 Chemical Engineer
    233112 Materials Engineer

    
    233111 CHEMICAL ENGINEER

    
    Designs and prepares specifications for chemical process systems and the construction and operation of commercial-scale chemical plants, and supervises industrial processing and fabrication of products undergoing physical and chemical changes. Registration or licensing may be required.

    Skill Level: 1

23. The Tribunal accepts that it is not relevant whether the qualifications are closely related to the applicant’s current employment or future job opportunities/ambitions.  It is required to look at whether the qualifications are closely related to the skilled occupation.  As stated before, this relationship needs to be more than complementary.

24. The Tribunal has carefully considered the tasks as outlined in the ANZSCO and the material provided by the applicant in support of her comprehensive submissions.

25. The Tribunal accepts the advantages of having management and leadership qualifications in her work as a Chemical Engineer.  The statement from Mr Ibrahim of Baker Hughes provides:

    The industry today demands much more from our qualified chemical engineering employees than technical aptitude.  While a comprehensive understanding of chemical reactions and chemical processes is a pre-requisite for many technical roles, this knowledge alone does not qualify candidates for a position in an industrial chemical processes company such as Baker Hughes.

    To deliver a final product or service to our clients, our chemical engineers must have demonstrated broader management skills in human resources, project management, quality control and leadership.

    The management portion of the skill set is critical, and highly desirable trait we look for during our vetting process for new staff.  Chemical engineers do not work in isolation and must be able to effectively manage a team of people involved on a project, ensuring that it is delivered within budget and on time.

26. The statement of Mr Thammishetty of Schlumberger provides:

    Chemical engineering is an occupation that requires both a narrow and broad set of skills.  On the one hand, chemical engineers work with chemical reactions and chemical processes design, requiring a firm grasp of maths, physics and chemistry.  However, to make these technical skills relevant to society, chemical engineers work in large scale productions which means that Chemical Engineers also require broader management skills in human resources, project management, quality control and leadership.  When we work in Chemical Industrial plants, we need to develop strategic plans to manage personnel efficiently, understand health and safety systems and evaluate the impact of the chemical processes on the company’s finances.  Our goal is to produce goods on a large scale at the lowest possible cost, meeting all applicable laws and standards while ensuring society’s safety and protection.

    Managing people is fundamental to the day-to-day work of a chemical engineer.  We are in continuous conversation with clients to develop new projects.  We also manage our teams’ performance to increase operational efficiency and our profit margins.  We are also responsible for the operators and workers safety during operation.  And we ensure that our staff and operators are handling the right chemicals and using the correct equipment.  For this, we need critical skills in performance management and team effectiveness.

27. After reviewing all the information and evidence provided by the applicant the Tribunal considers that having qualifications in management and leadership does more than simply assist the applicant in her work as a Chemical Engineer.  The Tribunal accepts that these qualifications are highly regarded and actively assist in the technical operation of the role.  Material from Engineers Australia refers to the need for engineering professionals to have the ability to manage projects, lead teams, deal with stakeholders and effectively communicate.  Whilst she could clearly not operate as a professional without her Engineering qualifications, having the additional management and leadership qualifications provide her with the skills that fall within the set of skills associated with a professional Chemical Engineer. 

28. The Tribunal finds, on the facts of this particular case that it is satisfied the applicant’s Australian qualifications are closely related to her nominated skilled occupation.

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

30. 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

31. 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.

    Michelle East
    Member