Mao (Migration)

Mao (Migration) [2021] AATA 5380 (22 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Kailong Mao
Ms Tianli Xu
CASE NUMBER:  1912049
HOME AFFAIRS REFERENCE(S):          BCC2019/1123691
MEMBER:Wan Shum
DATE:22 November 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:
·cl 485.222 of Schedule 2 to the Regulations.

Statement made on 22 November 2021 at 10:21am
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post Study Work stream – Civil Engineer – Master of Business Administration – whether qualification ‘closely related’ to nominated occupation – ANZSCO description of the occupation – Unit Group 2332 Civil Engineering Professionals – management of resources – overseeing and supervision of projects – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.222
CASES
Constantino v MIBP [2013] FCA 1301
Talha v MIBP [2015] FCAFC 115
Tobon v MIBP [2014] FCCA 2208
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 May 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 6 March 2019, and at that time, Visa Class VC only contained Subclass 485. 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.
The delegate refused to grant the visa, finding that the applicant did not satisfy cl 485.222 of Schedule 2 to the Regulations because the delegate was of the view that the Master of Business Administration is not closely related to the applicant’s nominated occupation.
The applicant sought review of that decision and was represented in relation to the review by a registered migration agent.
Prior to the hearing, the representative advised that the second named applicant was no longer “related” to the applicant and that her “visa application is no longer relevant for consideration in the AAT trial.” However, the Tribunal did not receive a withdrawal directly from the second named applicant, so this decision, where relevant, effectively applies to her.
The applicant appeared before the Tribunal on 27 August 2021 by videoconference using MS Teams to give evidence and present arguments. He confirmed that the second named applicant was not a member of his family unit any longer. The Tribunal indicated that as she had not personally withdrawn from the application for review that the decision would be in respect of her as well. The representative was also in attendance from a different location. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant completed a Master of Business Administration at Charles Darwin University, and it is this qualification which he relies upon to satisfy the Australian study requirement. He commenced study on 27 February 2017 and the qualification was completed on 5 March 2019, which was the day before the application was made. The course was registered for 104 weeks. Therefore, the Australian study requirement was met within the 6 months immediately before the day on which the visa application was made.
It would appear to the Tribunal that the applicant would have met the requirements for a Subclass 485 visa under the Post Study Work stream given the qualifications and educational institution are specified for the purposes of cl 485.321. For some reason the applicant has applied under the Graduate Work stream which requires that the qualification be ‘closely related’ to the nominated skilled occupation (cl 485.222).
In this case, the applicant nominated the occupation of Civil Engineer (ANZSCO Code: 233211), which is a skilled occupation specified in the relevant instrument.
In determining whether the applicant’s qualifications are ‘closely related’ to the nominated occupation, the Tribunal is to compare the whole of the Australian studies with the whole of the nominated occupation (Talha v MIBP [2015] FCAFC 115 at [53]). The wording of the criteria does not permit the relationship to be satisfied by asking whether some of the subjects studied are closely related to the nominated skilled occupation, or some part of it: Constantino v MIBP [2013] FCA 1301 at [27]. In comparing the whole of the studies to the whole of the nominated occupation, the Tribunal is to objectively consider the relationship of the qualifications to the ANZSCO description of the occupation of Civil Engineer (ANZSCO Code: 233211) rather than relying on the applicant’s own description of what the occupation entails or how the qualifications help with their future plans to start their own business.
According to ANZSCO,[1] a Civil Engineer “[p]lans, designs, organises and oversees the construction and operation of dams, bridges, pipelines, gas and water supply schemes, sewerage systems, airports and other civil engineering projects.”
[1] The relevant version being the latest issue of the Australian and New Zealand Standard Classification of Occupations, 2013, Version 1.3 released at 11:30 am (Canberra time) 05/11/2019 which was the version in force on the day LIN 19/051 commenced (being 16 November 2019).
The occupation of Civil Engineer (ANZSCO Code: 233211) is grouped with other Civil Engineering Professionals in ANZSCO under the Unit Group 2332 Civil Engineering Professionals, of which there are five in total:
233211 Civil Engineer
233212 Geotechnical Engineer
233213 Quantity Surveyor
233214 Structural Engineer
233215 Transport Engineer
The ANZSCO description for Unit Group 2332 Civil Engineering Professionals states as follows:
CIVIL ENGINEERING PROFESSIONALS design, plan, organise and oversee the construction of civil engineering projects such as dams, bridges, pipelines, gas and water supply schemes, sewerage systems, roads, airports and other structures; analyse the likely behaviour of soil and rock when placed under pressure by proposed structures and design structural foundations; analyse the statical properties of all types of structures and test the behaviour and durability of materials used in their construction; plan and develop transportation systems; and estimate and monitor the construction costs of projects.
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:
·determining construction methods, materials and quality standards, and drafting and interpreting specifications, drawings, plans, construction methods and procedures
·organising and directing site labour and the delivery of construction materials, plant and equipment, and establishing detailed programs for the coordination of site activities
·obtaining soil and rock samples at different depths across sites and testing samples to determine strength, compressibility and other factors that affect the behaviour of soil and rock when a structure is imposed and determining the safe loading for the soil
·studying architectural and engineering drawings and specifications to estimate total costs, and preparing detailed cost plans and estimates as tools to assist in budgetary control
·monitoring changes to designs, assessing effects on cost, and measuring, valuing and negotiating variations to designs
·analysing structural systems for both static and dynamic loads
·designing structures to ensure they do not collapse, bend, twist or vibrate in undesirable ways
·assessing present and future travel flow patterns taking into account population increase and needs change
·designing the physical aspects of transportation systems such as highways, railroads, urban transit, air transportation, logistical supply systems and their terminals.
Occupations:
233211 Civil Engineer
233212 Geotechnical Engineer
233213 Quantity Surveyor
233214 Structural Engineer
233215 Transport Engineer
233211 CIVIL ENGINEER
Plans, designs, organises and oversees the construction and operation of dams, bridges, pipelines, gas and water supply schemes, sewerage systems, airports and other civil engineering projects. Registration or licensing may be required.
Skill Level: 1
Specialisations:
Airfield Engineer Officer (Air Force)
Hydraulics Engineer
233212 GEOTECHNICAL ENGINEER
Plans, directs and conducts survey work to analyse the likely behaviour of soil and rock when placed under pressure by proposed structures, and designs above and below ground foundations. Registration or licensing may be required.
Skill Level: 1
233213 QUANTITY SURVEYOR
Alternative Titles:
Building Economist
Construction Economist
Estimates and monitors construction costs from the project feasibility stage, through tender preparation, to the construction period and beyond. Registration or licensing is required.
Skill Level: 1
233214 STRUCTURAL ENGINEER
Analyses the statical properties of all types of structures, tests the behaviour and durability of materials used in their construction, and designs and supervises the construction of all types of structures. Registration or licensing may be required.
Skill Level: 1
233215 TRANSPORT ENGINEER
Plans and develops transport systems to improve infrastructure efficiency and the cost effectiveness of moving people and freight. Registration or licensing may be required.
Skill Level: 1
Specialisation:
Roading Engineer (NZ)
The Tribunal has also had regard to the information contained in the minor group description of Engineering Professionals under which the occupation belongs. ANZSCO Minor Group 233 lists the following tasks for Engineering Professionals:
·Planning and designing chemical process systems, civil engineering projects, electrical power equipment and facilities, electronic components used in computer and industrial applications, mechanical equipment and systems, mining and drilling operations, and other engineering projects
·Drafting and interpreting specifications, drawings and plans, and determining construction methods
·Supervising the construction of structures, water and gas supply and transportation systems, and the manufacture, installation, operation and maintenance of equipment, machines and plant
·Organising and managing project labour and the delivery of materials, plant and equipment
·Estimating total costs and preparing detailed cost plans and estimates as tools for budgetary control
·Resolving design and operational problems in the various fields of engineering through the application of engineering technology.
Prior to the hearing, the Tribunal received a submission from the representative which addresses the issue in dispute. The submission highlighted the perceived error in the delegate’s approach in applying PAM3, stating that the approach outlined in Tobon v MIBP [2014] FCCA 2208 should be applied; and further that the relationship between the applicant’s nominated qualification and nominated skilled occupation is more than merely complementary. In respect of the MBA, it was submitted that the delegate failed to have regard to the full list of units undertaken by the applicant, and furthermore, that not all MBA qualifications are the same, in that they may be composed differently based on different choices of electives and professional projects. The Tribunal explained at the hearing that it would be considering whether the whole of the qualification was closely related to the whole of the occupation rather than following the three-step process or formula outlined in Tobon v MIBP [2014] FCCA 2208, having regard to the Full Federal Court’s observations in Talha v MIBP [2015] FCAFC 115 at [66].
The following is a list of the core units of the MBA undertaken by the applicant at Charles Darwin University:
·Organisational Strategy Leadership
·Accounting for Managers
·Economics for Managers
·Contemporary Management Issues
·Communication, Negotiation and Conflict Resolution
·Business Research
·Decision Making
·Organisational Behaviour
·three units of Professional Practice.
The elective units undertaken by the applicant were International Human Resource Management; International Marketing; Clients and Markets; and Managing Innovation.
Having considered the information presented as to the core and elective subjects offered by Charles Darwin University, the Tribunal accepts the general proposition that the MBA qualification is not necessarily going to be exactly the same. It has therefore considered not only the general information about the qualification but also specific information about the elective units as completed by the applicant to understand the whole of his qualification.
According to a copy of the relevant section from the current University Handbook provided to the Tribunal:
Master of Business Administration (Professional Practice) complements your current management role and further develops your knowledge and professional corporate skills in:
> accounting for managers
> business research
> decision making
> communication
> negotiation and conflict resolution
> economics for managers
> organisational behaviour
> organisational strategy
> leadership fundamentals of management.
As part of the course, you will have the opportunity gain valuable work experience by spending an additional semester working in an organisation. [sic]
It was submitted that the applicant acquired skills in accounting, negotiation, research and decision making which were said to be “highly relevant for him to determine construction methods, materials and even conduct cost valuing for future Civil Engineering projects. The leadership and behavioural analysis skills from the MBA course will enhance his skills in organising and directing site labour and the overall management of a Civil Engineering project. The more socially related skills, originated from the international subjects and the Economic related subject will form foundation to a Civil Engineer for the task of assessing present and future travel flow patterns with consideration of population increase and needs change.” It was submitted that he gained decision making skills from the subject Decision Making and analytical skills for organisation’s behaviours from the subject Organisational Behaviour. In terms of the Professional Practice Placement, which it was explained comprised of three units, it was submitted that the applicant obtained practical skills for Civil Engineering project management, which he completed as an onsite Civil Engineering Project Assistant in the form of an internship at iBuild. In the Internship Progress report, the applicant stated in the introduction that project management practice augments the basic skills of an engineer on specific engineering projects through “implementation of the project objectives, management organisation, target control, contract management, information management, organisation and coordination problems.”
The Tribunal asked about the marketing units and the representative advised that they were elective units. The information on the elective units from the University’s website is set out below.
The description for the unit International Marketing is:
The growing importance of global trade requires students to have an understanding of the principles of marketing across borders. This postgraduate unit will provide an introduction to the theory and practice of international marketing including market segmentation, positioning and marketing mix strategy. It will introduce students to the models of marketing across national boundaries to create and sustain competitive advantage. It will highlight international best practices within the global markets and their implications for Australian firms.
The description for the unit Clients and Markets is:
This postgraduate unit introduces key marketing concepts that help to unravel the complexities of buyer behaviour in wide range of markets (consumers, commercial, government, and institutions). Such knowledge is essential for understanding how marketing works, in both 'business to consumer' (B2C) and 'business to business' (B2B) situations, and for recognising the strategies and tactics that organisations can use to influence their clients (customers). Understanding the customer is fundamental to effective marketing and this unit explains how to evaluate buyer behaviour using theories from relevant disciplines, including marketing, psychology and sociology. Through this process the unit highlights the distinctive characteristics of B2B and B2C markets. Students apply their newly acquired understanding of customer behaviour to strategy development and the selection of appropriate market segments, as well as tailoring the marketing mix (product, price, promotion, place and people) to maximise appeal to these carefully targeted customers.
The description for the unit International Human Resource Management is:
Human Resource Management plays an important strategic role in helping an organisation build and maintain competitive advantage. This postgraduate unit provides a comprehensive overview of the key aspects of human resource management and its application in the local, global and international contexts. Students will develop a critical understanding of human resource management concepts, processes and theories. Students will also apply this knowledge to solving real world problems.
It does not appear to the Tribunal that all of these units have a close relationship to the tasks of Engineering Professionals as described in ANZSCO. However, it is mindful that it needs to consider the whole of the qualification.
It was submitted that the applicant applied skills from the MBA in: customer relationship management to organise and direct site labour and the delivery of construction materials, plant and equipment, and establishing detailed programs for the coordination of site activities; contract and information management to form a better understanding of how to monitor changes in designs and assess effects on costs, and negotiate variations to designs; quality management of design process to test samples of the work in order to determine the safety of the project.
During the hearing, the applicant highlighted the soft skills gained from the MBA in respect of leadership and management and added that his plan is to start his own business. He said that undertaking an MBA allowed him to meet others from different areas of expertise and build relationships. While undertaking the course may assist him with his possible future career of a business owner, the Tribunal has focused its assessment on the relevance of the MBA qualification to the occupation of Civil Engineer as described in ANZSCO. In doing this, the Tribunal has considered all of the units comprising the MBA undertaken by the applicant against the ANZSCO description.
Having regard to the course outline and descriptions of individual units, the Tribunal considers that the units are aimed at providing a broad understanding of business theories from a management perspective and to provide knowledge and skills in management and leadership. The overall content of the course is focused on how businesses work and the human aspects of what it takes to manage. In the Tribunal’s view, it is the management aspect of the course which is related to the ANZSCO description for Civil Engineers and Engineering Professionals, which specifically refers to the tasks of management of resources and overseeing and supervision of projects.

Having considered the whole of the MBA qualification against the whole of the occupation, the Tribunal finds that it is closely related to the skilled occupation nominated by the applicant.
On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl 485.222. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa. Based on the evidence provided by the applicant, the second named applicant is no longer a member of his family unit.
DECISION
The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:
·cl 485.222 of Schedule 2 to the Regulations.
Wan Shum
Member

[2021] AATA 5380

22 November 2021

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