Nguyen (Migration)
[2023] AATA 372
•13 January 2023
Nguyen (Migration) [2023] AATA 372 (13 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mr Anh Vu Nguyen
Mrs Thi Xuan Trang Cao
Master Cao Thang NguyenREPRESENTATIVE: Mr Tim Pham
CASE NUMBER: 1925269
HOME AFFAIRS REFERENCE(S): BCC2019/3250906
MEMBER:Katie Malyon
DATE:13 January 2023
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 485.221 of Schedule 2 to the Regulations; and,
·cl 485.222 of Schedule 2 to the Regulations.
The Tribunal has no jurisdiction in relation to the third named applicant.
Statement made on 13 January 2023 at 9:52 am
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) –Australian study requirement – qualification completed within 6 months before application made closely related to nominated application – qualification in global project management and occupation of software engineer – studies compared with whole of nominated occupation – relationship must be more than merely complementary – favourable skills assessment does not refer to this qualification – previous courses included project management subjects – course required by employer – project management tasks form main part of occupation – members of family unit – third applicant child now Australian citizen with no jurisdiction to review – ‘closely related’ – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15F(1), Schedule 2, cls 485.221, 485.222
Australian Citizenship Act 2007 (Cth), s 12(1)(b)CASES
Chawdhury v MIAC [2010] FMCA 275
Constantino v MIBP [2013] FCA 1301
MIBP v Dhillon [2014] 227 FCR 525
Setiya v MICMSMA [2021] FCCA 544
Singh v MICMSMA [2021] FedCFamC2G 208
Talha v MIBP [2015] FCAFC 115Uddin v MIAC [2010] FCA 1281
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 20 August 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 28 June 2019. Visa Class VC contains 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 (Cth) (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 visas on the basis the primary visa applicant, Vietnamese national Mr Anh Vu Nguyen, did not satisfy cl 485.222 of Schedule 2 to the Regulations because Mr Nguyen’s Master of Global Project Management (Advanced) course completed on 27 May 2019 at Torrens University was not closely related to his nominated occupation of Software Engineer ANZSCO 261313. Whilst noting that the skill set underpinning Mr Nguyen’s qualification ‘may possibly assist’ in his future career plans, the delegate found that the transcript provided for his Master of Global Project Management (Advanced) degree shows no relationship between the units and his nominated occupation.
Hearing
Mr Nguyen and his wife, the second named applicant Mrs Thi Xuan Trang Cao, appeared before the Tribunal on 10 August 2022 to give evidence and present arguments. Documentation lodged at the hearing and oral evidence provided during the hearing are discussed below.
The applicants were represented in relation to the review by immigration lawyer Mr Tim Pham of Tim Pham Lawyers. At the time of lodgement of the review application, Mr Pham was a registered migration agent (MARN 1382027). Mr Pham apologised to the Tribunal for his multiple failures to comply with the Tribunal’s Practice Directions including cl 5.1 of the Tribunal’s Practice Direction – Migration and Refugee Matters as well as cl 6.11, 6.12 and 6.14 of the COVID-19 Special Measures Practice Direction – Migration and Refugee Division. He acknowledged a representative’s failure to comply with the Tribunal’s Practice Directions may result in referral to the Office of Migration Agents Registration Authority or the NSW Legal Services Commissioner.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
As the primary visa applicant Mr Nguyen 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 provisions 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, 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 Mr Nguyen meets both of these requirements.
Does the applicant meet the Australian study requirement?
Under reg 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:
(a)that are registered courses; and,
(b)that were completed in a total of at least 16 calendar months; and,
(c)that were completed as a result of a total of at least 2 academic years study; and,
(d)for which all instruction was conducted in English; and,
(e)that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.
The terms ‘degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined term: see regs 1.03, 1.15F and 2.26AC(6) of the Regulations and cl 485.111 of Schedule 2 to the Regulations. The word ‘completed’, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award: reg 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 LIN 19/085.
In his visa application form, Mr Nguyen declared that he had undertaken multiple studies in Australia leading to his holding the following qualifications:
1)Master of Global Project Management (Advanced) completed 27 May 2019 at Torrens University;
2)Master of Information Technology (Professional Computing) completed June 2014 at Swinburne University of Technology (Swinburne); and,
3)Advanced Diploma of Computer Science completed 25 July 2011 at Swinburne.
Mr Nguyen has provided evidence of letters of completion and academic transcripts to confirm that he has undertaken the studies outlined above. Based on the evidence before it, including information in the Department’s file, the Tribunal is satisfied that Mr Nguyen completed his Master of Global Project Management (Advanced) in the 6 months immediately before the visa application was made on 28 June 2019.
Having reviewed the Commonwealth Register of Institutions and Courses for Overseas Student (CRICOS), the Tribunal is satisfied that Mr Nguyen’s Master of Global Project Management (Advanced) is a registered course completed at a CRICOS registered institution.[1] Accordingly, reg 1.15F(a) is met.
[1] Course Details - Torrens University Australia Limited - Master of Global Project Management (Advanced) (education.gov.au)
Mr Nguyen commenced his Master of Global Project Management (Advanced) on 5 June 2017 and completed the course on 27 May 2019 as confirmed by the signed Letter of Completion dated 5 June 2019 lodged with the Department. Based on the evidence provided, the Tribunal is satisfied that the course was completed in a total of at least 16 calendar months and that it was completed as a result of at least 2 years of academic study. Further, information available on the CRICOS Register confirms that the language of instruction for this course was English.[2] As such, regs 1.15F(b), 1.15F(c) and 1.15F(d) are met.
[2] Ibid
Departmental records confirm that, during the period of Mr Nguyen’s study at Torrens University between 5 June 2017 and 27 May 2019 when he was studying for his Master of Global Project Management (Advanced), he was in Australia as the holder of a Student Subclass 500 visa authorising him to study in Australia. Accordingly, reg 1.15F(e) is met.
Clause 485.221(a) requires that the qualifications relied upon to satisfy ‘the Australian study’ requirement must be completed within 6 months immediately before the day the visa application is made. As noted above, the applicants applied for their Subclass 485 visa application on 28 June 2019. The only course completed by Mr Nguyen in the 6 months prior to lodgement of the visa application was his Master of Global Project Management (Advanced) degree which he was completed on 27 May 2019.
Based on the evidence outlined above, the Tribunal finds that Mr Nguyen satisfies the ‘Australian study requirement‘ in the 6 months immediately preceding the date of lodgement of the visa application. Therefore, Mr Nguyen meets cl 485.221 of Schedule 2 of the Regulations.
Is the qualification ‘closely related’ to the nominated occupation?
Clause 485.222 of Schedule 2 to the Regulations requires that each qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation.
An occupation is a ‘skilled occupation’ in relation to a person 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, it is applicable to the person in accordance with the specification of the occupation: regs 1.03 and 1.15I of the Regulations.
In this case, Mr Nguyen nominated the occupation of Software Engineer ANZSCO 261313 which is a skilled occupation specified in the relevant legislative instrument, IMMI 19/051. Mr Nguyen relies on his Master of Global Project Management (Advanced) to meet the Australian study requirement. Therefore, the issue for the Tribunal to consider is whether the qualification used to satisfy the Australian study requirement is closely related to Mr Nguyen’s nominated occupation of Software Engineer.
As noted above, the delegate was not satisfied that Mr Nguyen’s Master of Global Project Management (Advanced) completed at Torrens University is closely related to his nominated skilled occupation of Software Engineer ANZSCO 261313 and, therefore, he did not meet cl 485.222 of Schedule 2 to the Regulations. The delegate had regard to the description in ANZSCO Unit Group 2613 which states that Software and Applications Programmers design, develop, test, maintain and document program code in accordance with user requirements, and system and technical specifications.
Further, the delegate noted that Mr Nguyen’s favourable skills assessment from the Australian Computer Society (ACS) dated 4 June 2019 only gave recognition to his Master of Information Technology (Professional Computing) and his Advanced Diploma of Computer Science in making it skills assessment: no mention was made of his Master of Global Project Management (Advanced). The delegate also noted that the Unit Group 2613 description does not refer to Global Project Management related units as being ‘directly transferable’ to that occupation.
In conclusion, the delegate found that Mr Nguyen’s Master of Global Project Management (Advanced) is not closely related to his nominated occupation of Software Engineer ANZSCO 261313.
Legal principles
The term ‘closely related’ is not defined in the Regulations. However, the term has been considered in a number of cases including the Full Federal Court of Australia’s decisions of MIBP v Dhillon[3] and Talha v MIBP[4] as well as the Federal Court of Australia’s decision in Constantino v MIBP[5] and, more recently, the Federal Circuit Court of Australia in Setiya v MICMSMA[6] and Singh v MICMSMA.[7] The leading authorities on the issue of whether a qualification used to satisfy the Australian study requirement is ‘closely related’ to the applicant’s nominated skilled occupation establish that:
1)while the words ‘closely related’ are not defined in legislation they do require and call attention to the connection between 2 things. Further, although the words ‘closely related’ do not require an exact correspondence,[8] the relationship must be more than merely complementary;[9]
2)in making the assessment, the nature of the nominated occupation must be determined by reference to the Australian and New Zealand Standard Classification of Occupations (ANZSCO) and, further, ANZSCO 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;[10]
3)it is 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 (subjective) description of what the occupation entails, or the applicant’s own view of the proximity of the qualifications to the nominated occupation;[11] and,
4)it is ultimately a matter for the decision-maker (that is, the Tribunal) to decide whether an applicant’s Australian qualifications are ‘closely related’ to the nominated skilled occupation[12] and, in carrying out the evaluative exercise, it is critical that the Australian studies be compared with the whole of the nominated occupation[13] (emphasis added).
The Tribunal has been guided by these cases in its consideration of the issue presented by Mr Nguyen.
Consideration
[3] [2014] 227 FCR 525.
[4] [2015] FCAFC 115, Griffiths, Mortimer and Beach JJ.
[5] [2013] FCA 1301, Jacobson J.
[6] [2021] FCCA 544, Jarret J
[7] [2021] FedCFamC2G 208, Kendall J
[8] MIBP v Dhillon (2014) 227 FCR 525 at [20]. See also Constantino v MIBP [2013] FCA 1301, Jacobson J at [33]
quoting with approval Prasad v MIAC [2012] FCA 591, Logan J at [33].
[9] Uddin v MIAC [2010] FCA 1281, North J at [10] - [12]; Constantino v MIBP [2013] FCA 1301, Jacobson J; MIBP
v Dhillon (2014) 227 FCR 525, Griffiths, Mortimer and Beach JJ at [20].
[10] Talha v MIBP [2015] FCAFC 115, Griffiths, Mortimer and Beach JJ at [56]; Setiya v MICMSMA, Jarrett J at [25][11] Chawdhury v MIAC [2010] FMCA 275, Raphael FM at [12]. See also Kabir v MIAC [2010] FMCA 577, Scarlett[12] Talha v MIBP [2015] FCAFC 115, Griffiths, Mortimer and Beach JJ, at [53].
[13] Ibid at [53] endorsing MIBP v Dhillon (2014) 227 FCR 525 at [20] and Constantino v MIBP [2013] FCA 1301,
Jacobson J at [26].
The Academic Transcript for Mr Nguyen’s Master of Global Project Management (Advanced) confirms that he has successfully completed the following subjects for award of his degree:
Influencing and Making Decisions
Strategic Management Capstone
Integrated Project Management
Principles of Project Management
Contracts and Procurement
Marketing
Management Information Systems
Project Planning and Budgeting
Dynamic Leadership
capped organisational Behaviour and People Management
Sustainability in Project Portfolio and Program Management
Project Management Capstone C
Project Execution and ControlThe Tribunal also notes that the Academic Transcript expressly states that he was given Credit Transfers for 3 subjects. This is relevant to the issue under review because all of Mr Nguyen’s other qualifications are directly relevant to his nominated occupation of Software Engineer. In this regard and as noted above at para [11], Mr Nguyen completed an Advanced Diploma of Computer Science at Swinburne in July 2011 and then a Master of Information Technology (Professional Computing) in June 2014. As noted above, Mr Nguyen’s Swinburne qualifications have been recognised in his favourable assessment issued by the ACS for the occupation of Software Engineer ANZSCO 261313: however, the ACS skill assessment makes no reference to his Master of Global Project Management (Advanced).
When questioned by the Tribunal during the course of the hearing as to why he did not apply for a Subclass 485 visa after completing his Master of Information Technology (Professional Computing), Mr Nguyen said that his employer wanted him to undertake studies in project management: his employer had said project management skills were necessary for his work as his IT studies were insufficient on their own.
In considering whether Mr Nguyen’s Master of Global Project Management (Advanced) is closely related to his nominated occupation of Software Engineer, the Tribunal has had regard to the hierarchies and groupings in ANZSCO. Jobs detailed in ANZSCO are separated into 5 hierarchical levels. These levels are Major Group, Sub-Major Group, Minor Group, Unit Group and, at the most detailed classification level, are Occupations. The Tribunal has considered ANZSCO more broadly by considering not only the Occupation of Software Engineer but also the Unit Group, Minor Group and Sub-Major Group in the Major Group Professional classification.
The nominated occupation of Software Engineer 261313 is an occupation in Unit Group 2613 Software and Applications Programmers. ANZSCO states that a Software Engineer (alternatively titled Software Architect or Software Designer) designs, develops, modifies, documents, tests, implements, installs and supports software applications and systems. The specialisations are Computer Applications Engineer, Database Designer and Systems Architect.
Unit Group 2613 Software and Applications Programmers, with emphasis of words underlined explained in para [41] below, states that:
Software and applications programmers design, develop, test, maintain and document program code in accordance with user requirements, and system and technical specifications.
Tasks Include:
·researching, consulting, analysing and evaluating system program needs
·identifying technology limitations and deficiencies in existing systems and associated processes, procedures and methods
·testing, debugging, diagnosing and correcting errors and faults in an applications programming language within established testing protocols, guidelines and quality standards to ensure programs and applications including technical security controls to perform specification
·writing and maintaining program code to meet system requirements, system designs and technical specifications in accordance with quality accredited standards
·writing, updated and maintaining technical program, end user documentation and operational procedures
·providing 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.
The next hierarchy level up in ANZSCO, Minor Group 261 Business and Systems Analysts and Programmers, states that:
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 websites.
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.
At the Sub-Major Group 26 ICT Professionals level, ANZSCO states that:
ICT Professionals perform analytical, conceptual and practical tasks which support the efficient and secure provision of information and communication technology (ICT) services to government, commercial and industrial organisations, and individuals.
Tasks Include:
·developing and documenting strategies, policies and procedures relating to the use of ICT technologies and services
·planning, analysing, designing, developing, implementing, testing, operating, maintaining and assisting with the use of technologies and services that enable information, such as voice, image and data, to be accessed, networked, stored, processed, transformed, manipulated and transmitted over a variety of media
·assessing the performance of ICT technologies and services, identifying limitations and inefficiencies, and recommending and implementing solutions
·providing troubleshooting and service support in diagnosing, resolving and correcting problems associated with the use of ICT technologies and service.
ANZSCO’s Major Group 2 Professionals notes that professionals perform analytical, conceptual and creative tasks through the application of theoretical knowledge and experience in the fields of, relevantly, information and communication technology (as well as the arts, media, business, design, engineering, the physical and life sciences, transport, education, health, the law, social sciences and social welfare). Tasks relevant to the circumstances of this case include:
·analysing, planning, developing and implementing programs and solutions to resolve business and economic problems
·providing services in, relevantly, the efficient operation of organisations
·designing, implementing, testing and maintaining technologies and services that enable information to be accessed, stored, manipulated, processed and disseminated.
In considering the whole of ANZSCO, the Tribunal has also had regard to the duties of ICT Managers set out in Unit Group 1351. ANZSCO states that ICT Managers plan, organise, direct, control and coordinate the acquisition, development, maintenance and use of computer and telecommunications systems within organisations. There are 4 occupation specialisations within Unit Group 1351 which includes ICT Project Manager ANZSCO 135112. Whilst acknowledging that Mr Nguyen nominated his occupation as Software Engineer ANZSCO 261313 and that he has a favourable skill assessment from ACS for that occupation the Tribunal accepts that, in its examination of ANZSCO as a whole, it is appropriate and relevant to consider that the managerial level for ICT professionals, in particular, the role of an ICT Project Manager.
In a detailed statement provided to the Tribunal at the hearing, Mr Nguyen submits that project management tasks form an integral part of his occupation as a Software Engineer as they are key processes to every single software project from project initiation, project planning and design, implementation, user documentation and, finally, project closure. He opines that most industries now have a project-oriented approach to their operations, and this is particularly so in the case of the information and communication technology (ICT) industry. He adds that all ICT professionals identify not only software and applications as projects but also their services are identified as projects: from large scale software to single page websites, all put into the ‘project framework’. During the course of the hearing, Mr Nguyen reiterated many of his comments made in his statement. The Tribunal has set out below Mr Nguyen’s evidence in this regard.
Mr Nguyen also submits that Software Engineers not only manage programming codes but they also get involved in the whole software project life-cycle from initiation, through planning and design to implementation as well as analysing stakeholder’s satisfaction, final closure and engineering release. He adds that, in the ICT industry, it is accepted that software product failures arise from not having a project-based approach, from beginning to end: project management and software development processes must be integrated to achieve the development and delivery of successful software systems or products. Mr Nguyen uses the analogy of Construction Engineers in the building trade, who must also project manage to successfully fill their roles.
Relevantly, Mr Nguyen notes that all universities in Australia include project management subjects in their software engineering courses as compulsory units. Although no evidence to substantiate this statement was provided either by Mr Nguyen or his representative, the Tribunal notes that Mr Nguyen’s qualifications issued by Swinburne include subjects which are not programming, coding, algorithms, network, software or web focused subjects but directly relate instead to ICT project management. In this regard, the Tribunal notes Mr Nguyen’s:
1)Advanced Diploma of Computer Science issued on 25 July 2011 confirms completion of the following subjects: Analyse Data and Report Results; Create User and Technical Documentation; Write Reports; Apply Principles of Occupational Health and Safety; Prepare for Public Speaking; Implement Systems Software Changes; Administer A Network Operating System; Work Efficiently as Part of a Team; Implement A Business-Like Approach; Manage Complex Projects; Identify Sales Prospects; and, Design Configure Maintain and Scale a Routed Network; and,
2)Master of Information Technology (Professional Computing) issued on 29 July 2014 confirms completion of: Information Systems Project Management; and, Professional Project.
In his statement provided to the Tribunal at the hearing and reiterated in his oral evidence, Mr Nguyen states that the core project management subjects required to be completed as part of all Software Engineering courses gives students a basic and general knowledge of project management as it relates to Software Engineering: it gives all graduating Software Engineers a recognition of the close relationship of Project Management to their software engineering occupation. He explains this is why all graduating Software Engineers, like him, want to undertake extra courses in Project Management after graduation to up-skill their software engineering skills. Mr Nguyen adds that this point of view was disregarded by the delegate.
The Tribunal’s review of publicly available information about degree courses offered by both the University of Sydney[14] and the University of Technology Sydney[15] confirms that completion of a Bachelor of Engineering (Software Engineering) degree requires at least one Project Management subject as a compulsory subject. Respectively, the subject is called International Project Management PMGT3857 at the University of Sydney and Engineering Project Management 48260 at the University of Technology Sydney. Further, at Western Sydney University, it is interesting to note that the Master of Project Management and the Graduate Diploma in Project Management are located within the School of Computer Data and Mathematical Sciences.[16]
[14] Bachelor of Engineering Honours (Software Engineering) - The University of Sydney; PMGT3857 - Search - The University of Sydney
[15] UTS: C09066v6 Bachelor of Engineering (Honours) - Engineering, UTS Handbook
[16] Unit (westernsydney.edu.au)
In his statement provided to the Tribunal at the commencement of the hearing, Mr Nguyen observes that the publication A Guide to the Project Management Body of Knowledge (the PMBOK™ Guide)[17] which is published by the Project Management Institute defines project management as the application of knowledge, skills, tools and techniques in order to direct and coordinate human and material resources throughout the life of a project to meet established goals of scope, quality, time, cost and stakeholder satisfaction. Mr Nguyen submits that project management, in a software project life-cycle, deals with initiating, planning, monitoring and controlling the activities required to fulfil project commitments and reporting their status to project stakeholders. As such, it deals with the technical aspects required to complete a project or product. He submits that a sound development process needs to follow Software Engineering fundamentals and take into consideration requirements, analysis, functional and technical specifications, data and object orientation models, documentation standards, software testing, software maintenance, software quality assurance and configuration management. To achieve this, he opines that software engineering teams must integrate project management processes - initiation, planning, execution and closure - into software documentation. He echoed these comments during the course of the hearing and added that, to get success in developing software systems or products, the project management process and software development process must be integrated. This goes beyond the mere ‘possible’ assistance that the delegate referred to in the decision to refuse his visa application.
[17] The 10 Project Management Knowledge Areas - (PMBOK) (projectmanager.com)
Mr Nguyen includes in his statement provided at the hearing a flow chart of the ‘Software Engineering Process’ from project initiation though to project definition, design, implementation, user documentation, verification planning, verification and engineering release. He submits this process is a major component of his Master of Global Project Management (advanced) degree undertaken at Torrens University. Mr Nguyen also expressly refers to the Unit Group 2163 tasks underlined above at para [30] which, he states, are closely related to the project management knowledge base.
In addition, Mr Nguyen referred to the Australian Bureau of Statistics and its use of alternative titles for Software Engineers. These titles include: ‘Software Designer’ or ‘Software Architect’. Tasks for these titles include ‘designing, developing, modifying, testing, implementing, installing and supporting software applications and systems’. Mr Nguyen submits that these tasks are part of the project management process.
Mr Nguyen also referred to the Australian Government’s labour marketing insights website which notes that the tasks of the occupation of Software Engineer ANZSCO 261313 are 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.[18] He submits that the description of a Software Engineer’s tasks in this manner acknowledges that they get involved throughout the all phases of the entire software life-cycle from initiating, planning, executing, monitoring, controlling and, finally, to closing on a project. Mr Nguyen concludes his statement as well as his oral evidence at the hearing by observing that his role in IT at an aged care facility mean that his project management tasks form the main part of his occupation of Software Engineer.
[18] Software Engineers | Labour Market Insights
Based on evidence provided including Mr Nguyen’s oral evidence at the hearing, the Tribunal is satisfied that Mr Nguyen has undertaken a Master of Global Project Management (Advanced) at Torrens University and that his course of study is closely related to the occupation of a Software Engineer ANZSCO 261313. It is evident to the Tribunal that the subject modules in his Master’s degree include a significant component of IT project definition and decision-making, strategic planning, budgeting, initiation and implementation through marketing as well as managing the implementation of IT systems and projects, preparing user documentation, monitoring implementation as well as working with teams and users within an organisation.
The Tribunal accepts that, in addition to the technical aspects of the role of a Software Engineer, it is expected that a Software Engineer has skills including: decision-making skills; skills in planning, organising, directing, controlling and coordinating projects; skills in developing proposals and strategies for software design and implementation; drafting user documentation; and, people management skills demonstrating an ability to work with users by developing strategies to install new IT systems or improve existing systems. With organisations increasingly looking to digital systems and solutions, Software Engineering specialists such as Mr Nguyen are integral. It is evident that the Software Engineering speciality requires information technology skills to address the software lifecycle. Also required are skills necessary to deliver software, on time and within budget. Such work necessarily engages the closely related skills of project management.
By way of summary, the Tribunal accepts that a Software Engineer not only requires technical skills to perform in their occupation specialising in information technology but also project management skills required to lead and manage other personnel in the execution of software development projects and activities which are necessary to deliver robust reliable information technology solutions.
As the Tribunal has found that Mr Nguyen’s Master of Global Practice Management (Advanced) qualification used to satisfy the Australian study requirement is closely related to his nominated skilled occupation of Software Engineer ANZSCO 261313, the Tribunal is satisfied that Mr Nguyen meets cl 485.222 of Schedule 2 to the Regulations.
Conclusion
On the basis of the above findings, the Tribunal is satisfied that Mr Nguyen meets the requirements of cl 485.221 and cl 485.222 of Schedule 2 to the Regulations. Accordingly, the appropriate course is to remit his visa application to the Minister to enable consideration of the remaining criteria for the visa.
The application of the second named applicant, Mrs Thi Xuan Trang Cao, is based on her being a member of the family unit of a person who meets the primary criteria. The outcome of her application will be determined by reference to the outcome of Mr Nguyen’s Subclass 485 visa application on remittal to the Department for reconsideration.
As discussed during the hearing, the Tribunal has no jurisdiction in relation to the third named applicant, Master Cao Thang Nguyen, since he is now an Australian citizen. Master Nguyen was born in Australia on [Date] and acquired Australian citizenship 10 years later on 12 June 2021 consistent with s 12(1)(b) of the Australian Citizenship Act 2007.
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 485.221 of Schedule 2 to the Regulations; and,
·cl 485.222 of Schedule 2 to the Regulations.
The Tribunal has no jurisdiction in relation to the third named applicant.
Katie Malyon
Member
[2021] FCCA 544; Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 208, Kendall J at [68] - [74].
FM at [70], Shafiuzzaman v MIAC [2011] FMCA 874, Nicholls FM 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 the nominated occupation.
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