Mejia Duque (Migration)

Case [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…

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AGLC
Mejia Duque (Migration) [2020] AATA 2697
Case
[2020] AATA 2697
Decision Date

CaseChat Overview and Summary

This matter concerned a review of a decision not to grant the applicant a Skilled (Provisional) (Class VC) visa, specifically a Subclass 485 (Temporary Graduate) visa. The applicant sought to have his occupation assessed as Mechanical Engineer, relying on a skills assessment from Engineers Australia which confirmed he met the academic requirements for a Professional Engineer in Australia. The applicant had obtained a degree in Colombia in 2001, followed by a Diploma of Engineering (Oil and Gas), a Diploma of Project Management, and an Advanced Diploma of Leadership.

The primary legal issues before the Tribunal were whether the applicant met the requirements of clauses 485.221 and 485.222 of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant's completed courses were "closely related" to his nominated skilled occupation of Mechanical Engineer, and if there was an upper time limit for meeting the Australian study requirement. The applicant's representative argued that the delegate erred by suggesting the Diploma of Engineering (Oil and Gas) failed to meet the requirements due to time limits, and by failing to consider that leadership and management courses, as well as project management, were closely related to the core knowledge and tasks of a Mechanical Engineer as defined by the ANZSCO code.

The Tribunal found that the applicant did not satisfy either clause 485.221 or 485.222. The reasoning focused on the interpretation of "closely related" in the context of the ANZSCO definition for Mechanical Engineer. While acknowledging the importance of continuing professional development, the Tribunal concluded that the Diploma of Project Management and the Advanced Diploma of Leadership did not meet the criteria of being closely related to the nominated occupation. Consequently, as the applicant failed to satisfy these essential criteria for the Subclass 485 visa, the Tribunal affirmed the decision not to grant the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant was represented in relation to the review by his registered migration agent. CONSIDERATION OF CLAIMS AND EVIDENCE 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. 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. 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. 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. 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?

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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