JOY (Migration)

[2018] AATA 1987

JOY (Migration) [2018] AATA 1987 (24 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sudipta Das JOY
Ms Antara DAS

CASE NUMBER:  1709034

DIBP REFERENCE(S):  BCC2017/617226 EGODU3NA21

MEMBER:Wan Shum

DATE:24 May 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 24 May 2018 at 2:46pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement – Relation of qualification with occupation – Nominated occupation – Developer programmer – Academic transcript – Units of qualification – Purpose of qualification – Role description – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 Immigration on 6 April 2017 to refuse to grant the applicants Skilled (Provisional) (Class VC) Subclass 485 visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 15 February 2017. 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, finding that the applicant’s qualifications were not closely related to his nominated occupation. The delegate found that the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations.

4. The applicants have sought review of that decision and were represented in relation to the review by a registered migration agent.

5. The applicants appeared before the Tribunal on 18 April 2018 to give evidence and present arguments. Their representative also attended.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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 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 preceding 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. On the visa application form, the applicant provided the following details of study completed in Australia: Master of Business Administration, 9 November 2015 to 7 November 2016; Bachelor of Information Technology, 21 July 2014 to 6 November 2015; Advanced Diploma of Information Technology, 21 January 2013 to 12 December 2013 and Diploma of Information Technology, 14 November 2011 to 2 November 2012.

9. The applicant nominated the occupation of Developer Programmer which is a skilled occupation specified in IMMI 16/059. The Tribunal finds that the Bachelor of Information Technology qualification is closely related to the nominated occupation of developer programmer however that qualification was not completed in the 6 months immediately preceding the date of the visa application.  The applicant is therefore also relying on the Master of Business Administration completed on 7 November 2016 to satisfy the Australian study requirement.

10. The applicant claims that after he completed his Bachelor degree he decided to undertake further study related to business to understand the business requirements to make software.

11. The applicant referred to a copy of the Australian Computer Society’s (ACS) skills assessment guidelines for Applicants and a completion letter and academic transcript in respect of completing a Master of Business Administration from Holmes Institute. The applicant claimed at the hearing that he had undertaken a specialisation in Information Technology for his MBA, and referred to the exemptions he had obtained which he said were IT units. Having regard to the academic transcript provided, the Tribunal notes that only two of the four subjects for which exemptions were granted are identified by a subject name ‘Strategic Information Systems’ and ‘Leveraging IT for Business Advantage’, while the others appear as ‘unspecified elective’.

12. The applicant further claimed that one of the units was also IT focused, with the unit name ‘Business and Enterprise Capstone project’, because he chose to do the project on an online shopping business. The applicant stated that he chose the MBA course because it would help him understand what he is doing for his clients. The Tribunal referred to the general information about the Master of Business Administration from the Holmes Institute website and noted that the website did not currently include details of relevant subjects for a specialisation in Information Technology under the MBA program. The representative submitted that it was previously available but was no longer offered. The representative undertook to provide documents confirming her submission from Holmes. A copy of a brochure regarding the MBA was provided which confirms that one of the three specialisations available was in Information and Technology. While the document is undated and nothing further has been provided from the education provider itself, the Tribunal is prepared to accept that the Master of Business Administration from Holmes Institute had previously included an Information and Technology specialisation having regard to the academic transcript provided. According to the brochure, the MBA offered by Holmes required completion of 12 units in total.

13. It thus appears that the applicant’s MBA qualification was awarded on the basis of having previously undertaken four IT subjects, with one additional unit of the remaining 8 focusing on an online shopping business which the applicant claims is closely related to his occupation. The Tribunal notes that, even if 4 of the 12 units are what could be described as IT subjects with another focused on an IT related business, this is less than half of the units completed.

14. The applicant also referred the Tribunal to the ACS website, which included information regarding the developer programmer occupation and referred to the description of employment duties including researching, consulting, analysing and evaluating system program needs. The relevant document includes a description of the occupation and the tasks as listed in ANZSCO, as well as related subjects. The Tribunal notes that these subjects appear under two headings – the first, ‘closely related core ICT units’ and the second is titled ‘additional closely related ICT units’. None of the units undertaken by the applicant as listed in his academic transcript for the MBA at Holmes Institute appear on this list.

15. In considering whether the MBA qualification is closely related to the occupation of Developer Programmer, the Tribunal has referred to the description from ANZSCO which states that a developer programmer “interprets specifications, technical designs and flow charts, builds, maintains and modifies the code for software applications, constructs technical specifications from a business functional model, and tests and writes technical documentation”. The Tribunal has also considered, as a whole, the MBA completed by the applicant which consisted of 12 units, 4 of which were previously completed as part of his bachelor IT qualification. The remaining 8 units were HI 5001 Accounting for Business Decisions; HI 5002 Finance for Business; HI 5003 Economics for Business; HI 5004 Marketing Management; HI 6005 Management and Organisations in a Global Environment; HI 6006 Competitive Strategy; HI 6007 Statistics and Research Methods for Business Decisions and HI 6008 Business and Enterprise Capstone Project. According to the brochure provided:

    [t]hese courses are designed for both aspiring managers and people currently employed in business or management. The Holmes MBA has the clear objective of teaching you how to think like a business person and how to plan ahead using advanced strategic thinking. The Holmes MBA will enable you to look at problems and opportunities holistically. By providing analytical frameworks such as risk assessments, cost-benefit analyses and strategic plans you will be able to apply these to any problem or opportunity you encounter. With an MBA from Holmes you will have gained a broad business mindset.

16. The applicant stated that having knowledge of the business of his client is necessary to develop software so he did further study to understand business requirements. The applicant claimed that he needed to have these skills and knowledge for his career. He wanted to have an IT related degree where he can learn other skills too. It was submitted by the representative that one of the tasks for the unit group under which the nominated occupation is classified under ANZSCO, Software and Applications Programmers, is to “provide advice, guidance and expertise in developing proposals and strategies for software design activities such as financial evaluation and costings for recommending software purchases and upgrades”.

17. The Tribunal accepts that having an understanding of business generally is something that would be beneficial to any person who is providing a service to a client, and that many businesses utilise IT and have software requirements. However, this does not make the MBA qualification as a whole closely related to the IT occupation that he has nominated. The Tribunal accepts that he chose to undertake the MBA course as he wanted to develop other skills to help him understand what he is doing for his clients, but it is assessing whether the qualifications are closely related to the occupation nominated and not to a possible job or his future career. Nor is it evaluating how beneficial the course may be to him generally for employment purposes. The Tribunal has also considered whether the qualification as a whole is related to the task of providing advice, guidance and expertise in developing proposals and strategies for software design activities. It may be that further study in business administration may assist with financial evaluation and costing, however the task identified by the representative is for recommending software purchases and upgrades. In addition, it is only one of the tasks that a Software and Applications Programmer may undertake.

18. According to ANZSCO, the unit group of Software and Applications Programmers ‘design, develop, test, maintain and document program code in accordance with user requirements, and system and technical specifications.’ There is nothing in this description which the Tribunal considers makes the qualification and the subjects undertaken closely related.

19. The unit group appears under the Minor Group 261 Business and Systems Analysts, and Programmers, which is grouped under the Sub-major Group of ICT Professionals, and Major Group of Professionals.

20. The Tribunal has had regard to the higher level groupings and in particular, the description in ANZSCO for the minor group which sets out the tasks and description as follows:

    
    BUSINESS AND SYSTEMS ANALYSTS, AND PROGRAMMERS 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, create audiovisual applications, and develop, test and maintain code for computer applications and web sites.

    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. 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:

    ·identifying, formulating and documenting user ICT requirements

    ·providing advice, guidance, expertise and assistance in the system project decision making process and in the development of system proposals and strategies

    ·identifying and evaluating inefficiencies, deficiencies and limitations in existing systems and associated processes, procedures and methods, and recommending optimal business practices, and system functionality and behaviour

    ·testing, debugging, diagnosing and correcting problems to ensure acceptable quality and integrity of the system, and that programs and applications perform to specification

    ·designing and developing digital animations, imaging, presentations, games, video clips, and Internet applications using multimedia software, tools and utilities, interactive graphics and programming language

21. An understanding of the client may indeed be useful or necessary, however having considered the ANZSCO description for a developer programmer and all of the tasks of the unit group, minor group, sub-major group and group, the Tribunal does not consider that the MBA as a whole offered by Holmes Institute is closely related with that occupation. The Tribunal acknowledges that developing ICT for particular users’ business needs would require an understanding of the business. However, it does not consider that a business administration course can be described as “closely related” to the occupation of developer programmer simply because the applicant needs to have an understanding of the business to develop software for a particular client/employer. While some of the units undertaken were IT units, having carefully considered the subjects undertaken for the MBA qualification and the purpose of the qualification as a whole, the Tribunal is not satisfied that it is “closely related” to the occupation of developer programmer.  The Tribunal does not consider that the subject matter was closely related to the overall tasks as described in Minor Group 261, or to the role descriptions (either at the lower end or higher end of the hierarchy) or to the subsets of tasks specific to the occupation as described in ANZSCO, such that it could be satisfied that the MBA is closely related to the occupation. 

22. The Tribunal has considered the applicant’s claims and evidence but does not accept that the MBA qualification is closely related to the occupation of Developer Programmer. It does not consider that there is evidence to support a finding that there is a close relationship between the qualification completed and the occupation nominated.

23. As the applicant’s MBA qualification is not closely related to the nominated skilled occupation, the applicant does not meet cl.485.222.

24. On the basis of the above findings, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

25. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

    Wan Shum
    Member