Paluykov (Migration)

[2021] AATA 5379

Paluykov (Migration) [2021] AATA 5379 (8 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tsanko Petkov Paluykov

CASE NUMBER:  1913266

HOME AFFAIRS REFERENCE(S):          BCC2019/1174249

MEMBER:Wan Shum

DATE:8 November 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl 485.222 of Schedule 2 to the Regulations.

Statement made on 08 November 2021 at 11:16am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Australian study requirement – Advanced Diploma of Leadership and Management – whether qualification ‘closely related’ to nominated occupation – Agricultural Scientist – ANZSCO description of the occupation – Unit Group 2341 – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cl 485.222

CASES
Talha v MIBP [2015] FCAFC 115

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 Home Affairs on 8 May 2019 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 8 March 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 (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 visas because the first named applicant (the applicant) did not satisfy cl 485.222 of Schedule 2 to the Regulations because the delegate was of the view that the Advanced Diploma of Leadership and Management is not closely related to his nominated occupation of Agricultural Scientist (ANZSCO Code: 321211).

4. The applicant sought review of that decision and was represented in relation to the review by a registered migration agent.

5. The applicant appeared before the Tribunal on 8 September 2021 by videoconference using MS Teams to give evidence and present arguments. The representative was also present by videoconference.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   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 cl 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 before 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 the second of those requirements.

   Is the qualification ‘closely related’ to the nominated occupation?

8. In this case, the applicant nominated the occupation of Agricultural Scientist (ANZSCO Code: 321211) which is a skilled occupation specified in IMMI 18/051.

9. The applicant provided the following details of studies undertaken in Australia on the application form, being:

   ·Diploma of Leadership and Management at Della International College from 28 August 2017 to 10 February 2019;

   ·Certificate IV in Business Administration at Baxter College from 13 February 2016 to 22 May 2016; and

   ·Diploma of Business at Baxter College from 13 September 2013 to 31 August 2015.

10. The applicant also provided evidence that he was awarded an Advanced Diploma of Leadership and Management qualification from Della International College. According to the completion letter, the course dates were from 28 August 2017 to 10 February 2019. The representative submitted that the applicant was granted recognition of prior learning from the diploma studies and that all of his study was closely related to the nominated occupation. However, in this case, it appears to the Tribunal that it need only assess whether the Diploma and Advanced Diploma in Leadership and Management qualifications are closely related to the nominated skilled occupation because these two qualifications appear to meet the Australian study requirement as defined in reg 1.15F without needing to consider the other qualifications.

11. The information before the Tribunal is that the applicant was enrolled in both the Diploma and the Advanced Diploma of Leadership and Management course at Della International College in Melbourne, Victoria.

12. According to the applicant’s PRISMS records, there are two Confirmation of Enrolments (CoEs) for the Diploma of Leadership and Management issued in respect of the applicant. There are two copies of the statement of results for the Diploma of Leadership and Management (provided after the hearing) – one of which reflects the dates of the CoE which indicates that he commenced on 19 June 2017 and completed the course on 6 August 2017 while the other indicates that he commenced the course on 27 June 2016 and gave the date of completion as 25 June 2017. In response to a query from the Tribunal, the college advised that the applicant had suspended his enrolment in the Diploma of Leadership and Management before reaching the completion date, which is why there are two CoEs, with the first CoE having a start date of 27 June 2016 (CoE Code: 78142436). Then he suspended his course on 31 May 2017. He resumed his course on 19 June 2017 and completed his course on 6 August 2017 which is reflected in the updated CoE (CoE Code: 8E6F8812).

13. It is unclear to the Tribunal why this happened, but in any case, the provider confirmed that the applicant completed the Diploma of Leadership and Management (CRICOS Course Code 088815M) course from Della International College from 27 June 2016 to 6 August 2017. It appears that the Advanced Diploma of Leadership and Management was deferred to commence on 28 August 2017 with an end date of 10 February 2019.

14. The Diploma of Leadership and Management course is registered for a period of 52 weeks while the Advanced Diploma was registered for 76 weeks on CRICOS. Together, the courses are registered for 128 weeks which is more than 2 academic years as defined. The study for these qualifications was undertaken for more than 16 months and all courses were delivered in English. The Tribunal finds that the Diploma and Advanced Diploma of Leadership and Management meet the Australian study requirement as defined in reg 1.15F.

15. According to the academic transcripts, the applicant undertook the following units in the Diploma of Leadership and Management:

    Manage meetings

    
    

    Manage business document design and development

    
    

    Manage quality customer service

    
    

    Manage budgets and financial plans

    
    

    Support the recruitment, selection and induction of staff

    
    

    Develop and use emotional intelligence

    
    

    Lead and manage effective workplace relationships

    
    

    Develop a workplace learning environment

    
    

    Manage operational plan

    
    

    Ensure a safe workplace

    
    

    Manage personal work priorities and professional development

    
    

    Lead and manage team effectiveness.

16. In the applicant’s statement, he explains the relevance of each unit in the Advanced Diploma of Leadership and Management course to an Agricultural Scientist which included:

    Develop an advertising campaign
    Manage finances
    Manage human resources strategic planning
    Lead and manage organisational change
    Provide leadership across the organisation
    Develop and implement strategic plans
    Develop and implement business plan
    Manage market research
    Develop organisational marketing objectives
    Manage risk
    Develop workplace policy and procedures for sustainability

17. The Tribunal was also presented with a number of job advertisements which, it was submitted, show a clear link between the role of Agronomists and the units of competency in the Advanced Diploma of Leadership and Management which the applicant holds. The advertisements included positions for an Area Manager/Nutritional Agronomist, Senior Agricultural Officer (Environment), Agronomist – Viticulture, and Project Officer – Sustainable Agriculture. It was submitted that the occupation and the role of Agricultural Scientist requires leadership and management, and therefore the Diploma of Leadership and Management is closely related to his nominated occupation.

18. The applicant claimed that having studied and worked as an Agricultural Scientist in Bulgaria, he realised that he needed to develop skills for strategic planning, managing personnel efficiently, understanding health and safety systems, evaluating the impact of the proposed laboratory tested processes on the farmers’ finances and the commercialisation of the laboratory tested findings. The applicant added that the skills gained from his leadership and management study help with advising on commercial crop production, pasture growth and animal breeding without damaging the economic side of the business. In his written submission he referred to the ultimate goal of the work of an Agricultural Scientist is to produce goods on a large scale at the lowest possible cost, meeting all applicable laws, regulations and standards while ensuring society’s safety and the protection of the environment at the same time.

19. The representative submitted that leadership and management skills were closely related to the aspect of the ANZSCO description for the occupation which refers to enhancing productivity. She submitted that there were two aspects of the description of an Agricultural Scientist, the first of which referred to the technical skills in terms of the cultivation techniques, and the second aspect was to enhance productivity of farms and agricultural industries. It was submitted that enhancing productivity on a farm essentially meant to increase output with the same amount of input and that an Agricultural Scientist achieved this by making small amendments to the operations of the farm. This aspect of the duties it was submitted requires an understanding of management skills when providing advice in respect of the management of resources and inputs such as human resources, machinery and other inventory.

20. Following the hearing, a further submission was made which sought to explain the relevance of the applicant’s business, leadership and management studies to the occupation of Agricultural Scientist. The submissions referred to all of the study undertaken by the applicant in Australia which includes a Diploma of Business and a Certificate IV in Business Administration.

21. While the applicant has undertaken other study in Australia, the Tribunal has limited its considerations to the two most recently completed qualifications which were the Diploma and Advanced Diploma of Leadership and Management as these qualifications considered together meet the Australian study requirement (as defined in reg 1.15F).

22. In considering whether these qualifications are closely related to the occupation of Agricultural Scientist, the Tribunal has considered the whole of the occupation as described in the ANZSCO Code, which in this case includes the Unit Group and Minor Group to which the occupation belongs, against the whole of the qualifications (Talha v MIBP [2015] FCAFC 115 at [53]).

23. In doing so, the Tribunal is to objectively consider the relationship of the qualifications to the ANZSCO description of the occupation of Agricultural Scientist rather than relying on the applicant’s own description of what the occupation entails. It is not comparing the qualifications to the applicant’s desired (or possible future) position or any of the positions described in the individual job advertisements provided, but is focusing on the unit and minor group ANZSCO descriptions to which the nominated occupation belongs. ANZSCO gives the following description for the occupation of Agricultural Scientist (ANZSCO Code: 234112): studies commercial plants, animals and cultivation techniques to enhance the productivity of farms and agricultural industries. Skill Level: 1. The description also lists the specialisation of ‘Agronomist’.

24. The Unit Group 2341 of Agricultural and Forestry Scientist: “advise farmers, rural industries and government on aspects of farming, develop techniques for increasing productivity, and study and develop plans and policies for the management of forest areas”. The tasks are listed as including:

    ·collecting and analysing data and samples of produce, feed, soil and other factors affecting production

    ·advising Farmers and Farm Managers on techniques for improving the production of crops and livestock, and alternative agricultural options

    ·advising farmers on issues such as livestock and crop disease, control of pests and weeds, soil improvement, animal husbandry and feeding programs

    ·studying the environmental factors affecting commercial crop production, pasture growth, animal breeding, and the growth and health of forest trees

    ·studying the effects of cultivation techniques, soils, insects and plant diseases on animal, crop and forest production

    ·developing procedures and techniques for solving agricultural problems and improving the efficiency of production

    ·managing forest resources to maximise their long-term commercial, recreational and environmental benefits for the community

    ·studying the propagation and culture of forest trees, methods for improving the growth of stock, and the effects of thinning on forest yields

    ·preparing plans for reafforestation and devising efficient harvesting systems

    ·investigating, planning and implementing management procedures to cope with the effects of fires, floods, droughts, soil erosion, insect pests and diseases.

25. The Minor Group in ANZSCO to which the occupation belongs is ‘Natural and Physical Science Professionals’ who “perform analytical, conceptual and practical tasks in relation to environmental factors and agricultural production, the chemical and physical properties of the universe, the extraction and processing of mineral ores, life forms including the physiology and biochemistry of humans, plants and animals, and disease prevention”. It appears that the information under the Unit Group is more helpful in this case to understanding the occupation.

26. As stated above, the Tribunal is required to consider the occupation nominated by the applicant as described in ANZSCO. The ANZSCO description for the occupation refers to providing advice to farmers and farm managers, rural industries and/or government and the tasks include developing procedures to solve agricultural problems which is relevant to risk management and investigating, planning and implementing management procedures to cope with a number of variables. The submissions focus on the knowledge and skills an Agronomist should possess in order to provide advice on farm management rather than on how the Agronomist would implement leadership and management skills in carrying out their duties. The Tribunal considers that the occupation description and tasks in the Unit Group reflect that a mix of technical skills and interpersonal and communication skills for the tasks involving the provision of advice are required. While there is no direct reference to carrying out leadership and/or management duties in any of the tasks set out in ANZSCO under the Unit Group (or Minor Group) to which the nominated occupation belongs, the Tribunal accepts that the agricultural scientist’s aim is to provide advice to enhance productivity on farms which involves consideration of factors and resources that extend beyond scientific matters.

27. In assessing the relationship between the qualifications of Diploma and Advanced Diploma of Leadership and Management and the applicant’s nominated occupation, the Tribunal has considered all of the units of these courses undertaken by the applicant. The Tribunal accepts that subjects on strategic planning, business planning, management of budgets and financial planning may inform in what manner advice should be given to farmers and farm managers. In providing ongoing advice to farm managers on pest, disease and weed management, crop inspections, farm planning and recommending in crop nutrition requirements, the Tribunal accepts that the type of market the final produce will be offered to is a relevant consideration and the marketing units may enhance understanding of trends in the consumer market such as increase in the demand for organic products, non GMO products etc, which would be relevant to advising on how to adapt farm practices and techniques form to take advantage of changes. The subject about managing risk appears relevant to advising about farming strategies considering various environmental factors and also for developing procedures for solving agricultural problems. It would appear to the Tribunal that while management of human resources is an important variable given the seasonal nature of farm work, some of the subjects on leadership and management of organisational change, including providing leadership across the organisation, appear to be less relevant to the role of an Agronomist from an advisory capacity.

28. Having carefully considered the whole of the occupation by reference to the ANZSCO description of Agricultural Scientist, the Tribunal accepts that the Diploma of Leadership and Management and Advanced Diploma of Leadership and Management qualifications are closely related to the nominated skilled occupation of Agricultural Scientist.

29. As each qualification used to satisfy the Australian study requirement is closely related to the nominated skilled occupation, the applicant meets cl 485.222.

30. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cls 485.221 and 485.222. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

31. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·cl 485.222 of Schedule 2 to the Regulations.

    Wan Shum
    Member