Mejia Duque (Migration)

[2020] AATA 2697

Mejia Duque (Migration) [2020] AATA 2697 (6 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ruben Dario Mejia Duque

CASE NUMBER:  1710627

HOME AFFAIRS REFERENCE(S):          BCC2017/976253

MEMBER:Roslyn Smidt

DATE:6 April 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 06 April 2020 at 2:16pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – occupation of Mechanical Engineer – Australian study requirement – courses closely related to the nominated skilled occupation – general leadership and management courses – academic requirements for Professional Engineer in Australia – upper time limit for study requirement – ANZSCO definition of the occupation – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 458.221, 485.222

CASES

Chawdhury v MIAC [2010] FMCA 275
Constantino v MIBP [2013] FCA 1301
Kabir v MIAC [2010] FMCA 577
Manik v MIAC [2012] FMCA 149
MIAC v Kamruzzaman [2009] FCA 1562
MIBP v Dhillon (2014) 227 FCR 525
Prasad v MIAC [2012] FCA 591
Seema v MIAC (2012) 203 FCR 537
Shafiuzzaman v MIAC [2011] FMCA 874
Talha v Minister for Immigration and Border Protection [2015] FCAFC 115
Uddin v MIAC [2010] FCA 1281
Wang v MIMIA [2005] FCA 843

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 and Border Protection on 5 May 2017 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 13 March 2017. 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 applicant’s Advanced Diploma of Leadership and Management and Diploma of Project Management were not closely related to the nominated occupation of Mechanical Engineer ANZSCO 233512. The delegate found that the applicant’s Diploma of Engineering (Oil and Gas) was not relevant to his consideration as it had been completed more than 6 months prior to his visa application on 5 May 2017

4. The applicant appeared before the Tribunal on 31 January 2020 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. In support of his application the applicant provided a letter dated 20 February 2015 from Engineers Australia which states that, based on a degree awarded to him in Colombia in 2001 and the competencies he had demonstrated, he had been assessed as meeting the academic requirements for standing as a Professional Engineer in Australia. The letter states that the appropriate occupational classification for migration purposes was Mechanical Engineer Australian and New Zealand Standard Classification of Occupations (ANZSCO) 233512.

7. The applicant also provided evidence that he had been awarded a Diploma of Engineering (Oil and Gas) from the Central Institute of Technology on 26 June 2015 and a Diploma of Project Management the Australian Institute of Commerce and Technology (AICT) on 8 December 2016 and an Advanced Diploma of Leadership on 31 March 2017, also from the AICT.

8. On 23 December 2019 the applicant’s representative provided a written submission in which he argued that the delegate had erred in the following ways:

   ·     While the regulations state that applications for 485 should be made in the period of six months after completion of studies, the Department has stated that there is no upper limit to the time which can be taken to meet the Australian study requirement and the delegate was therefore wrong to suggest that Diploma of Engineering (Oil and Gas) failed to meet 485.221.

   ·     The delegate failed to take account of the findings in Talha v Minister FCAFC 115 (25 August 2015) which state that in determining if a qualification is closely related to nominated occupation it is required to apply all relevant aspects of the ANZSCO code, including the tasks of the relevant Unit Group, which in the applicant’s case was Unit Group 2335 (Industrial, Mechanical and Production Engineers). The submission includes a table setting out how, in the applicant’s representative’s view, the ANZCO description for engineer/mechanical engineer is closely related to the subjects the applicant studied to complete a Diploma of Project Management and an Advanced Diploma of Leadership and Management.

   ·     The delegate failed to take account of the fact that leadership and management are core areas of knowledge for any profession.

9. The submission also sets out in detail details of how the courses completed by the applicant are closely related to the skills and abilities required for the profession of mechanical engineering.

10. At the hearing the applicant said that after he received his skills assessment from Engineering Australia he was advised to continue with his professional development. In order to keep a student visa this meant that the needed to complete an appropriately registered course. As he was interested in obtaining a visa which allowed him to work in Australia he also considered those qualifications most likely to give him the skills suited to the Australian job market. He also provided the information from Engineering Australia regarding the importance of continuing professional development.

    Does the applicant meet the cl.495.221 and 485.222?

11. 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.

12. The applicant’s Diploma of Engineering (Oil and Gas) was completed more than 6 months prior to lodgement of his application and therefore fails to meet cl.485.221. In reaching this conclusion I have noted the applicant’s representative’s submission that there is no upper limit on the time which can be taken to meet the Australian study requirement. However, the issue here is not the time taken to meet this requirement, but the time at which the applicant completed this Diploma.

13. Clause 485.222 requires that each qualification or qualifications used to satisfy the study requirement must be closely related to the applicant’s nominated skilled occupation.[1] In this case the Tribunal must consider whether the either of the Diplomas completed by the applicant within the 6 months prior to lodgement of his application are closely related to his nominated occupation of Mechanical Engineer.

    [1] This is a separate criterion – see e.g. cl 485.222 of Sch 2.

14. The words ‘closely related’ are not defined in the legislation. They do not require an exact correspondence.[2] However, the relationship must be more than merely complementary.[3]

    [2] MIBP v Dhillon (2014) 227 FCR 525 at [20]; see also Constantino v MIBP [2013] FCA 1301 (Jacobson J, 4 December 2013) at [33] quoting with approval Prasad v MIAC [2012] FCA 591 (Logan J, 17 May 2012) at [33].

    [3] Uddin v MIAC [2010] FCA 1281 (North J, 8 November 2010) at [10]-[12] where North J rejected the argument that the Tribunal misunderstood the term ‘closely related’ by departing from what was then set out in PAM3. The Tribunal in that case found that the language of the regulation required a closer relationship than that suggested by the words ‘complementary’ or ‘useful’ as used in PAM3 at that time. This approach was followed in Prasad v MIAC [2012] FCA 591 (Logan J, 17 May 2012) (special leave refused: Prasad v MIAC [2013] HCASL 34) and approved in Constantino v MIBP [2013] FCA 1301 and MIBP v Dhillon (2014) 227 FCR 525 at [20]. See also Shafiuzzaman v MIAC [2011] FMCA 874 (Nicholls FM, 15 November 2011) at [37]-[38] and Manik v MIAC [2012] FMCA 149 (Smith FM, 28 February 2012) at [13], upheld on appeal Manik v MIAC [2012] FCA 619 (Cowdroy J, 15 June 2012) at [19]-[20].

15. In making the assessment it is necessary to focus on the nominated occupation rather than on an applicant’s claimed or proposed occupation or career path. It has been held in this context that the decision maker is entitled to give substantial weight to the contents of the ANZSCO descriptions.[4] More recent authority suggests that the nature of the nominated occupation must be determined by reference to ANZSCO[5] and further, that the ANZSCO Code needs to be read as a whole with a view to identifying and applying information which is relevant to an understanding of the whole of the nominated occupation,[6] in other words it is necessary to take account not only of the specific tasks generally performed by the relevant unit group, but the more general description of tasks in the higher groupings into which the nominated occupation falls.[7] 

    [4] Manik v MIAC [2012] FMCA 149 (Smith FM, 28 February 2012) citing Shukla v MIAC [2010] FMCA 625 (Smith FM, 16 August 2010), Kabir v MIAC [2010] FMCA 577 (Scarlett FM, 3 September 2010) and Chawdhury v MIAC [2010] FMCA 275 (Raphael FM, 23 April 2010).

    [5] See Talha v MIBP [2015] FCAFC 115 (Griffiths, Mortimer and Beach JJ, 25 August 2015). The central question in this case was not whether the nominated occupation must necessarily be determined by reference to ANZSCO, but rather whether the Tribunal had incorrectly confined its consideration to the relevant ANZSCO occupation. However the central significance of the ANZSCO Code is implicit in the Court’s reasoning. See also Wang v MIMIA [2005] FCA 843 (Madgwick J, 8 June 2005), MIAC v Kamruzzaman [2009] FCA 1562 (Greenwood J, 23 December 2009) and Seema v MIAC (2012) 203 FCR 537 where the relevance of ASCO/ANZSCO was considered in the analogous context of whether the applicant’s employment is closely related to the nominated occupation.

    [6] Talha v MIBP [2015] FCAFC 115 (Griffiths, Mortimer and Beach JJ) at [56].

    [7] Talha v MIBP [2015] FCAFC 115 (Griffiths, Mortimer and Beach JJ) at [52]. The judgment examines the structure of the ANZSCO code in detail (at [17]-[23]).

16. It is also appropriate to objectively consider the relationship of the applicant’s qualification to the ANZSCO definition of the occupation rather than relying on the applicant’s own description of what the occupation entails or the applicant’s own view of the proximity of the qualifications to the nominated occupation.[8]

    [8] Chawdhury v MIAC [2010] FMCA 275 (Raphael FM, 23 April 2010) at [12]. See also Kabir v MIAC [2010] FMCA 577 (Scarlett FM, 2 August 2010) at [70], Shafiuzzaman v MIAC [2011] FMCA 874 (Nicholls FM, 15 November 2011) at [48] – [67] where the Court held that the Tribunal was correct in applying an objective test instead of a subjective test by the applicant that the term ‘closely related’ should be read as ‘complementary’ or ‘useful’ to his nominated occupation; and Manik v MIAC [2012] FMCA 149 (Smith FM, 28 February 2012) at [14], upheld on appeal in Manik v MIAC [2012] FCA 619 (Cowdroy J, 15 June 2012).

17. Where more than one qualification is being relied on to meet the study requirement, all the courses must be closely related to the nominated skilled occupation. This requires a comparison between each qualification and the skilled occupation, not a comparison between the two or more qualifications.[9]

    [9] Manik v MIAC [2012] FMCA 149 (Smith FM, 28 February 2012) at [23]-[24], upheld on appeal in Manik v MIAC [2012] FCA 619 (Cowdroy J, 15 June 2012).

18. It is ultimately a matter for the decision-maker to decide whether an applicant’s Australian studies are ‘closely related’ to the nominated skilled occupation.[10] In carrying out the evaluative exercise it is critical that the whole of the Australian studies be compared with the whole of the nominated occupation.[11] The wording of that 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.[12]

    [10] Talha v MIBP [2015] FCAFC 115 (Griffiths, Mortimer and Beach JJ, 25 August 2015) at [53].

    [11] Talha v MIBP [2015] FCAFC 115 (Griffiths, Mortimer and Beach JJ, 25 August 2015) at [53], endorsing MIBP v Dhillon (2014) 227 FCR 525 at [20] and Constantino v MIBP [2013] FCA 1301 (Jacobson J, 4 December 2013) at [26].

    [12] Constantino v MIBP [2013] FCA 1301 (Jacobson J, 4 December 2013) at [27].

19. The occupation of Mechanical Engineer is included in Unit Group 2335 of the together with Industrial and Production Engineers. Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification and may also include additional experience or training.

20. According to ANZSCO Engineers in this group:

    ‘design, organise and oversee the construction, operation and maintenance of mechanical and process plant and installations, establish programs for the coordination of manufacturing activities, and ensure usage of resources is cost effective’.

21. Tasks performed by engineers belonging to this groups include:

    ·     studying functional statements, organisational charts and project information to determine functions and responsibilities of workers and work units and to identify areas of duplication

    ·     establishing work measurement programs and analysing work samples to develop standards for labour utilisation

    ·     analysing workforce utilisation, facility layout, operational data and production schedules and costs to determine optimum worker and equipment efficiencies

    ·     designing mechanical equipment, machines, components, products for manufacture, and plant and systems for construction

    ·     developing specifications for manufacture, and determining materials, equipment, piping, material flows, capacities and layout of plant and systems

    ·     organising and managing project labour and the delivery of materials, plant and equipment

    ·     establishing standards and policies for installation, modification, quality control, testing, inspection and maintenance according to engineering principles and safety regulations

    ·     inspecting plant to ensure optimum performance is maintained

    ·     directing the maintenance of plant buildings and equipment, and coordinating the requirements for new designs, surveys and maintenance schedules

22. ANZSCO also states that a Mechanical Engineer

    ‘plans, designs, organises and oversees the assembly, erection, operation and maintenance of mechanical and process plant and installations’

23. As noted above, the applicant completed two Diplomas in the 6 months prior to lodging his application, a Diploma of Project Management and an advanced Diploma of Leadership and Management.

24. According to the Statement of Results for the applicant’s Diploma of Project Management, he completed the following courses:

    ·     Manage project scope

    ·     Build and sustain an innovative work environment

    ·     Plan and manage conferences

    ·     Manage project risk

    ·     Manage project time

    ·     Manage project information and communication

    ·     Manage project integration

    ·     Mange personal work priorities and professional development

    ·     Manage project cost

    ·     Manage project human resources

    ·     Plan and implement administrative systems

25. According to the Statement of Results for the applicant’s Advanced Diploma of Leadership and Management, he completed the following courses:

    ·     Lead and manage organisational change

    ·     Provide leadership across the organisation

    ·     Manage innovation and continuous improvement

    ·     Develop and implement strategic plans

    ·     Develop and implement a business plan

    ·     Develop a marketing plan

    ·     Manage finances

    ·     Manage knowledge and information

    ·     Manage human resources strategic planning

    ·     Develop workplace policy and procedures for sustainability

    ·     Contribute to organisational development

    ·     Manage risk

26. The Tribunal accepts that some of the courses studied by the applicant relate to skills required of Mechanical Engineers and that some of the skills he acquired from these course may be of use to him in his work and future career as a Mechanical Engineer. However, both courses are general in nature and could equally be applied to many occupations which have a project management or leadership component. The Tribunal also notes that while the occupation of Mechanical Engineer requires a Skill level one qualifications (Bachelor Degree or higher), the Diploma courses which the applicant is relying on to meet this requirement are Skill Level 2 qualifications, which further suggests that the level of skill and knowledge acquired from these courses is likely to be general in nature and therefore of limited relevance to the skills required of a Mechanical Engineer. 

27. Furthermore, it is clear from the descriptions of the tasks performed by all engineers in Unit Group 2335 that the technical aspects of the role relating to the design, organisation and oversight of construction, operation and maintenance of mechanical and process plant and installations are crucial skills for all engineers. The description of the work of a Mechanical Engineer relates almost entirely to technical skills. Without these technical skills it would be not be possible for anyone to function as an engineer. None of the subjects studied by the applicant when completing his Diploma courses relate to these technical tasks or skills.

28. After considering all of the evidence and submissions, it is the Tribunal’s view the skills acquired in the Diplomas he completed within the six months prior to lodging his application  are no more than complimentary to the tasks required of a Mechanical Engineer.  The Tribunal finds that neither the applicant’s qualifications Diploma of Project Management and Advanced Diploma of Leadership and Management are not closely related to the occupation of Mechanical Engineer.

29. In reaching this conclusion the Tribunal has considered the submissions from the applicant and his representative. In particular the Tribunal has considered the information from the Engineering Australia website provided by the applicant, much of which deals with the importance of maintaining and expanding skills and improving career prospects though continuing professional development including in areas such as project management and leadership. As noted above, I accept that the courses completed by the applicant would be of some use to him in his work as an engineer and perhaps enhance his future career prospects. However, for the reasons set out above, I do accept that the qualifications he has used to satisfy the study requirement are closely related to his nominated skilled occupation of Mechanical Engineer.

30. The Tribunal finds that the applicant does not satisfy cl.485.221 or cl. 485.222.  It follows that 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

31. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Roslyn Smidt
    Member