Pandya (Migration)

[2021] AATA 2316

Pandya (Migration) [2021] AATA 2316 (3 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jignesh Umeshbhai Pandya
Mrs Khyati Rajivkumar Pandit

CASE NUMBER:  1904590

DIBP REFERENCE(S):  BCC2018/5628927

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         3 June 2021 at 3:12 pm (VIC time)

DATE OF WRITTEN RECORD:                22 June 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 22 June 2021 at 4:15pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement – qualification closely related to nominated occupation – qualification in business administration and occupation of software engineer – relationship more than merely complementary – comparison of units of course and ANZSCO description – previous qualification in IT closely related – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 485.211, 485.222

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 13 February 2019 to refuse to grant the visa applicants Skilled (Provisional) (Class VC) Subclass 485 visas under the Migration Act 1958 (the Act).

2. At the hearing on 3 June 2021, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. Mr Jignesh Umeshbhai Pandya, on 13 December 2018 you lodged an application for a Temporary Graduate (Subclass 485) visa on the basis that your Australian qualification used to satisfy the Australian study requirement is closely related to your nominated skilled occupation of Software Engineer, which is a skilled occupation specified in the relevant instrument.

4. To be eligible for the grant of a 485 visa an applicant must satisfy a range of requirements including clauses 485.221 and 485.222 which relevantly state that 485.221 says;

   The applicant satisfied the Australian study requirement in the period of six months immediately before the day the application was made.

5. Your Master of Business Administration from Holmes College satisfies Regulation 485.221 as it was completed on 12 November 2018 which is six months prior to lodgement and therefore it is the course that must be assessed against Regulation 485.222 which states:

   Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant's nominated skilled occupation.

6. The delegate considered your application on 13 February 2019 and refused your application on the basis he was not satisfied that your Master of Business Administration course was closely related to the nominated occupation of Software Engineer. 

7. You appealed that decision to be reviewed by this Tribunal and with your application you included a copy of the primary decision which you said you have read and understood.

8. The role of the Tribunal is to take a fresh look at your case and consider whether you are eligible for the grant of a Subclass 485 visa by deciding whether your Master of Business Administration course is closely related to the occupation of Software Engineer.

9. In coming to a decision I considered the following:

   ·     The primary decision, which is the subject of this review,

   ·     the relevant legislation,

   ·     the evidence you have provided, and

   ·     the Australian and New Zealand standard classification of occupations, ANSCO as it is known, as it applied to the occupation definitions and skill requirements in Australia, specifically to those of Software Engineer.

10. The term "closely related" is not defined in the regulations, however, the term has been considered by the Full Federal Court of Australia in the decisions of Dhillon and Talha as well as the Federal Court of Australia in its decision in Constantino v The Minister. 

11. Accordingly, the Tribunal has been guided by these cases in its consideration of the issues presented in your case. 

12. Whilst the term "closely related" is not defined, it has been established the course studied and the occupation require a connection; and while it need not be an exact correspondence, the relationship must be more than merely complementary.

13. Having regard to the previously mentioned decisions in higher courts, the Tribunal considers that for a qualification to be closely related to the occupation, the relationship between the skills gained in the qualification and the occupation must be more than merely complementary.  It is not sufficient for the Tribunal to consider whether the qualification complements or has a broader relevance to the occupation.  The legislation requires more - that the units of the course are directly related to carrying out the nominated occupation.  The course in its entirety needs to be closely related to your nominated occupation.

14. You submitted a ‘Skills Assessment’ from the Australian Computer Society dated 13 December 2019 which said that your skills had been assessed to be suitable for migration under the ANZSCO code specified occupation number 261313 (Software Engineer) based on the completion of your Professional Year program and your Master of Information Technology degree from the Central Queensland University which you gained in July 2020..  It is noted that the skills assessment does not list the Master of Business Administration as a qualification considered as part of the assessment process.  The only qualification mentioned is that Master of IT.

15. In considering whether are studies are closely related to a nominated occupation, the skill set underpinning the qualification should be directly transferable to the nominated occupation in terms of both subject matter and the level of qualification at which those skills were obtained.

16. In looking at the ANZSCO code where it talks about the role of software engineers, it states: Their job is to design, develop, test, maintain and document program code in accordance with user requirements and system and technical specifications. 

17. It refers to the specific tasks and talks about;

    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 application is performed to specification, writing and maintaining program code to meet system requirements, system designs and technical specifications in accordance with quality accredited standards, writing, updating and maintaining technical program, end user documentation and operational procedures and 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

18. And I will come back to that final point a little later.

19. From the transcript provided, the units in your Masters of IT degree in gaining the assessments were;

    ·     Systems development overview,

    ·     database development and management,

    ·     structured programming,

    ·     web applications for business,

    ·     object oriented principles,

    ·     conceptual foundations,

    ·     digital telecommunications networks,

    ·     network software engineering,

    ·     information systems project planning and management,

    ·     knowledge management and data mining.

20. The course is clearly highly technical and the Tribunal considers that each of the subjects is focussed directly on matters related to Information Technology.

21. Regarding the last task on the ANZSCO code,

    Providing advice, guidance and expertise and developing proposals and strategies for software design such as financial evaluation and costing,

22. you say that that requires Project Management skills and HR skills and dealing with people and whatever.  If that were the case it is certainly very different to all of the other tasks which are technically focussed.

23. You provided evidence that you studied a Master of Business Administration at Southern Cross University between 22 February 2016 and February 2018 with limited success.  You managed to pass the following seven units;

    ·     Project Management,

    ·     Entrepreneurship and Marketing,

    ·     Corporate Governance,

    ·     Leading and Managing People,

    ·     Marketing,

    ·     Organisational Behaviour and

    ·     Global Business. 

24. You failed to pass

    ·     Finance,

    ·     Industry Research Project,

    ·     Accounting for Managers, and

    ·     Strategy and Case Analysis.

25. On the basis of your results at Southern Cross University, you were granted a Graduate Diploma in Business Administration and subsequently transferred to Holmes Institute where you again enrolled and studied a Master of Business Administration between 12 March 2018 and 12 November 2018. 

26. You claim that your results at Southern Cross were not particularly good because you had difficulty with transport getting to and from your place of study.  The Tribunal considers it is the responsibility of an applicant to arrange their affairs such that matters like getting to and from classes do not interrupt the primary reason they are in Australia being to study.

27. However, in your MBA at Holmes you successfully completed

    ·     Accounting for Business Decisions,

    ·     International Business Across Borders,

    ·     Competitive Strategy,

    ·     Statistics and Research Methods,

    ·     Finance for Business and Business and

    ·     Enterprise Capstone Project.

28. The Tribunal considers that while each of the units in your previous study of Master of IT were highly focussed on Information Technology, and therefore the occupation of Software Engineer, the same cannot be said for the Master of Business Administration where the units are not focussed on IT but far more broadly applicable to a range of roles in business.

29. You stated that your assessment also included a professional which included a range of roles that required business skills and you did work experience which included Project Management and creating a Risk Management Plan, which you say demonstrates they are critical to the role of Software Engineer.  The Tribunal does not necessarily agree with those claims. While they may have been helpful with some tasks in roles you performed in your Professional Year, the Tribunal is not satisfied they are closely related to the role of Software Engineer.

30. Your migration agent made a submission in which he stated his belief that a Master of Business Administration was ‘highly relevant’ to the nominated occupation of Software Engineer and in submissions referred a number of times to the MBA being ‘relevant’.  Your agent stated his belief that Project Management was an important component of the role of Software Engineer as was the overall administration and co-ordination of personnel.

31. A range of information was provided about job opportunities for people in IT and about job advertisements for Project Managers in IT.  However, the nominated occupation is that of Software Engineer.  You made reference to the fact that at least two academic institutions, being James Cook University and the Australian Catholic University both have combined degrees of Masters of Information Technology and MBA which you say indicates that there is a direct relationship between the two. 

32. While the Tribunal does not doubt there may be value in an MBA to most management roles, it does not accept that an MBA is critical to being a software engineer and is not referred to in the Skills Assessment. While it may not be a particularly good analogy, it could be likened to saying that a range of universities offer combined Commerce and Law degrees indicating that you need Commerce skills to be a lawyer or legal skills to be a Commerce graduate.   I do not believe that argument is legitimate.

33. The agent made substantial reference to the fact that you had completed a subject Managing Information Systems which he claimed was part of your MBA degree.  However, that unit with the code MNG03218 is, in fact, one of the units you completed in your Master of IT studies at Central Queensland University in 2010 for which you were granted an exemption in the MBA.  It is therefore not a subject that you studied in the MBA at Holmes and therefore is not relevant in these considerations.

34. In support of your case the agent referred to two previous AAT decisions, one from 2018 and one from 2019 dealing with the same legislation where Tribunal members remitted the matters for reconsideration. 

35. Regarding these cases the Tribunal makes two observations; firstly Tribunal decisions do not create precedent and secondly, those cases dealt with applicants whose nominated occupations were Environmental Engineer and Chef respectively who, in support of their applications, had studied Leadership and Management.  The Tribunal does not believe those cases provide any valuable guidance in the consideration in this case.

36. As stated, in the ANZSCO description the role of Software Engineer does not refer to Master of Business Administration related activities as benefitting  this occupation, especially where the completion of the Master of IT Software Development combined with the completion of the professional year, has provided sufficient academic background and experience for successful assessment for the role of Software Engineer

37. While accepting that some of the subject studies in the Master of Business Administration may possibly assist you in your future career plans as per your statement and may be relevant to future job opportunities, the  Tribunal is not satisfied that it provides any additional qualifications required as a software engineer.

38. As I said, you provided a range of information about job opportunities.  They mainly referred to Project Management and Senior IT Project Management roles and you, yourself, made the statement; I want to become an IT project manager and so therefore they are the skills that I wish to learn.

39. Regulation 485.222 states that your courses must be closely related to your nominated skilled occupation.  It does not specify any assessment against current or future career plans.  And while I accept that some of the subjects in an MBA might be of value in a future career, I do not believe that they are closely related to the role of software engineer.

40. The Tribunal is not satisfied that the transcript provided for the MBA shows a close relationship between the units that comprised the course and the occupation of Software Engineer.  The wording of the criteria does not permit the relationship to be satisfied by asking whether some of the subjects studies are closely related to the nominated skills occupation or some part of it.

41. Some of the knowledge may be useful, as I said, however the legislation requires something more.  It needs to be more than complementary or useful, it needs to be closely related.

42. The Tribunal finds your Master of Business Administration is not closely related to your nominated occupation of software engineer with the ANZSCO code 261313.  I therefore find you do not satisfy Regulation 485.222.

43. As 485.222 is not met I find the criteria for the grant of a Temporary Graduate (Subclass 485) visa in the graduate workstream are not met and thus you do not meet the criteria for the grant of a Temporary Graduate visa.  It is therefore the decision of this Tribunal to affirm the decision under review.

44. This decision was made at 3.12 pm on this, 3 June 2021. 

    DECISION

45. The Tribunal affirms the decisions under review.

    Tim Connellan
    Member