Fernandes Ramos (Migration)

[2021] AATA 4120

Fernandes Ramos (Migration) [2021] AATA 4120 (11 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Daniel Fernandes Ramos
Mrs Giulia Mendes Andrade

CASE NUMBER:  1931479

HOME AFFAIRS REFERENCE(S):          BCC2019/4230917

MEMBER:Nicola Findson

DATE:11 August 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application 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; and

·cl.485.222 of Schedule 2 to the Regulations.

Statement made on 11 August 2021 at 11:54am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work Stream – Environmental Engineer – Australian study requirement – Advanced Diploma of Program Management – Diploma of Project Management – qualification ‘closely related’ to nominated occupation – skills acquired from qualifications – ANZSCO description – nominated skills for the occupation – decision under review remitted

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

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 1 November 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 26 August 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. 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.

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.

7. When making the visa application the applicant nominated the occupation of Environmental Engineer.  He provided evidence that he had completed an Advanced Diploma of Program Management in the period 20 August 2018 to 28 July 2019, as well as a Diploma of Project Management in the period 21 August 2017 to 29 July 2018, at the Australian Pacific College in Sydney, Australia.  The applicant provided evidence that he had completed a Bachelor degree in Environmental Engineering in Brazil in 2007.

8. During the review process, the applicant provided a written submission to the Tribunal, with a number of documents attached.  The Tribunal has considered that material which includes the applicant’s written arguments explaining his background as well as the relationship between project and program management and the nominated occupation. The applicant submits that the Diploma and Advanced Diploma have enabled him to gain relevant non-technical and attitudinal competencies, in addition to his technical competencies, required by an engineer in Australia. He submits that he has gained an understanding of the procedures, law and regulations relating to work, health and safety in Australia, by undertaking these qualifications. In addition, his study has assisted him develop a nuanced understanding of the strategies and policies that Australian businesses may implement to manage risks associated with sustainability and environmental projects. He believes the qualifications have enhanced his project and planning skills necessary for an environmental engineer in the Australian context.

9. The applicant’s written submission was accompanied by transcripts for the Diploma and Advanced Diploma.  He sets out in his submission a description of the units undertaken while completing his qualifications and a summary of how they provided him with the knowledge and skill base, engineering application ability, and personal and professional attributes relevant to the occupation of Professional Engineer. 

10. The applicant also provided a copy of his skills assessment undertaken by Engineers Australia, dated 11 April 2019, confirming that the applicant demonstrated he has the competencies required for the occupation Professional Engineer; material from Engineers Australia, including the Migration Skills Assessment Booklet, March 2020, which describes the skills, competencies and role of an Environmental Engineer; a copy of ANZSCO Unit Group 2339 which includes the ANZSCO description for the nominated skilled occupation; and a bundle of recent job advertisements, highlighting the necessity of management and project management skills for an Environmental Engineer.

    Does the applicant meet the Australian study requirement?

11. 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.

12. ‘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.

13. The applicant has made the following claims regarding his study in Australia. He completed a Diploma of Project Management in the period 21 August 2017 to 29 July 2018, as well as an Advanced Diploma of Program Management in the period 20 August 2018 to 28 July 2019, both at the Australian Pacific College in Sydney (CRICOS provider 01331F).  The Tribunal finds on the basis of material provided to the Department that the applicant has completed these qualifications as claimed

14. 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 Program 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 August 2017 to July 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 Program Management in July 2019. This visa application was made in August 2019.

15. The Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately before 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). The relevant instrument for this purpose is Legislative Instrument 19/051, which specifies the nominated occupation of Environmental Engineer, Australian and New Zealand Standard Classification of Occupations (ANZSCO) 233915 and the assessing authority as Engineers Australia.

17. The applicant lodged his Graduate Work Stream (VC 485) visa application on 26 August 2019 and declared in the visa application the nominated skilled occupation of Environmental Engineer, which is a skilled occupation specified in Unit Group 2339 – Other Engineering Professionals.  In support of the application, the applicant provided evidence of having completed a Diploma of Project Management and an Advanced Diploma of Program Management, which the Tribunal has found meets the Australian study requirement.

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 course must be closely related to the nominated  skilled occupation.

19. The skilled occupation of Environmental 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 2339 of the ANZSCO includes Aeronautical Engineers, Agricultural Engineers, Biomedical Engineers, Engineering Technologists, Environmental Engineers and Naval Architects (Aus) / Marine Designers (NZ). It is indicated in the description that an Environmental Engineer ‘assesses the impact on air, water, soil and noise levels in the vicinity of engineering projects, plans and designs equipment and processes for the treatment and safe disposal of waste material, and assesses what may cause problems for the environment in the long-term’.  Unit Group 2339 does not, as most other unit groups do, include an indicative list of the type of duties performed by the occupations.

21. The Tribunal has had regard to the academic transcripts provided by the applicant, which list the units of study undertaken in each of the qualifications meeting the Australian study requirement.  The applicant’s Diploma of Project Management and Advanced Diploma of Program Management include units with a focus on enabling program execution, engaging in collaborative alliances, facilitating stakeholder engagement, leading and managing organisational change and team effectiveness, managing HR strategic planning, and providing leadership for the program. The courses also included units on managing information and communication, project integration, quality, risk, scope and cost.

22. In addition to using the ANZSCO as a guide, the Tribunal has referred to the Engineers Australia MSA Booklet – March 2020 referred to by the applicant, which includes, relevant to this case, a ‘Professional  Engineer: General Description of Role’ (at p.31). In summary, the general description of the role of a Professional Engineer in the Engineers Australian booklet includes:

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

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

    ·‘…bringing knowledge to bear from multiple sources’

    ·‘…ensuring that technical and non-technical considerations are properly integrated’

    ·‘…ensuring all aspects of a project are soundly based in theory and fundamental principle’

    ·‘…interacting effectively with other disciplines, professions and people’

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

23. In addition, the Engineers Australia booklet has a list of units and competencies that includes (from page 32):

    ·knowledge of the contextual factors impacting the engineering discipline

    ·understanding of the scope, principles, norms, accountabilities and bounds of contemporary engineering practice, professional use and management of information

    ·fluent application of engineering techniques, tools and resources.

24. In this case, after careful consideration of the evidence before it, 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 an Environmental 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 skilled occupation at entry, or any, level of their career, on any size project, with any number of employees, engineers or other professionals.  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.

25. It is accepted by the Tribunal that for a Professional Engineer, and in this case specifically an Environmental Engineer, a substantial proportion of the ‘acquired skills’ obtained through the study of units in the Diploma of Project Management and Advanced Diploma of Program Management underpin the nominated skills.  In reaching this conclusion, the Tribunal has had regard to the ANZSCO code as a whole, relating to the higher, minor and units groups containing Professional Engineers, and to relevant information in the Engineers Australia booklet, and is satisfied that the applicant’s qualifications are closely related to the nominated skilled occupation.

26. As each qualification used to satisfy the Australian study requirement is closely related to the nominated skilled occupation, the applicant meets cl.485.222.

27. 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

28. The Tribunal remits the application 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; and

    · cl.485.222 of Schedule 2 to the Regulations.

    Nicola Findson
    Member